The Senate Committee on Transportation was called to order by Chairman William R. O'Donnell, at 2:30 p.m., on Thursday, April 1, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator William R. O'Donnell, Chairman

Senator Mark Amodei, Vice Chairman

Senator Lawrence E. Jacobsen

Senator Maurice Washington

Senator Raymond C. Shaffer

Senator Valerie Wiener

Senator Terry Care

GUEST LEGISLATORS PRESENT:

Senator Mike McGinness, Central Nevada Senatorial District

STAFF MEMBERS PRESENT:

Joan Moseid, Committee Secretary

OTHERS PRESENT:

Judy Jacoboni, Lobbyist, Mothers Against Drunk Driving, Lyon County Chapter

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Chairman O’Donnell closed the work session on S.B. 490 and opened the hearing on Senate Bill (S.B.) 179.

Senator Mike McGinness, Central Nevada Senatorial District, testified that he was in full agreement with the proposed amendments made on S.B. 179. Senator McGinness read aloud the proposed amendments (Exhibit C).

Senator Washington asked Senator McGinness, "Would the United States Parachuting Association (USPA) provide the regulations for parachuting to skydiving businesses or DMV&PS?" Senator McGinness stated that it has been referred to and confirmed that the USPA has an excellent safety handbook and he added this book has not been enforced upon skydiving businesses. Senator Washington questioned further if the DMV&PS would use the USPA safety handbook to qualify a company who is interested in the skydiving business. Senator McGinness concurred and said that the proposed amendments changed some of the ground-training regulations. They are not a part of the USPA’s safety regulations and noted that the current changes will be tighter than USPA regulations, in these areas.

Senator Care drew attention to the subject of an automatic parachute opener that would cost approximately $1000 and he asked if the subcommittee had any discussions regarding the necessity of an experienced jumper who might be capable of jumping 50 jumps or less. He queried, "Would they be required to use an automatic parachute opener. Senator McGinness said an experienced jumper, having a capability of jumping 50 jumps, could be exempted somehow. He stated that his brother was a trained flyer with over 3500 jumps. After his death he had encountered some expensive and exhaustive investigation which revealed that his brother’s life would have been spared if the Legislature had implemented these very same issues that are being addressed in this bill today. Senator McGinness referred to a list of e-mails (Exhibit D) that he had received and they reviewed some of the automatic activation devices. He indicated that he had a number of e-mails that led him to believe that this law should be enforced the same way the seat belt laws are. Senator McGinness explained that the proposed amendments are very similar to the seat belt laws today, and the automatic activating device (AAD) would be kept within the language because so many people today are still not willing to wear their seat belts while driving.

Senator Washington maintained that he would like to see the USPA list the skydiving schools to comply with their standards, and make sure that a manual is available for any interested individuals who own a skydiving business. If they are not listed in the manual, then there should be a regulation allowing them to not be licensed.

Chairman O’Donnell requested a motion on S.B. 179 and asked the committee

secretary to take a roll vote.

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Chairman O’Donnell closed the hearing on S.B. 179 and opened the hearing on Senate Bill (S.B.) 208.

Chairman O’Donnell read aloud Amendment No. 143 to S.B. 208. He then queried Gemma Greene as to why the words "with prejudice" were added to the amendments.

Gemma Greene, Lobbyist, Nevada District Attorneys’ Association (NDAA), stated that the words "with prejudice," were added, because currently under the law the district attorney could dismiss a case "without prejudice," which meant the case could be refiled. When a case is dismissed "with prejudice" this would mean this case cannot be refiled.

Chairman O’Donnell continued to read aloud the amendment. He then questioned Ms. Greene why the words "controlled substance," were added. Ms. Greene stated that this change is a reflection of what the current law reads today; and if there are any detectable amounts of "controlled substance" in a persons system, their license can be revoked, and the same would go for a person having 0.10 percent of alcohol in their system. Chairman O’Donnell asked Ms. Greene what comments she would like to add on S.B.208.

Ms. Greene acknowledged that the NDAA is in full support of S.B. 208, as amended, and felt that the NDAA had received an adequate opportunity to propose the new amendments.

James F. Nadeau, Lobbyist, Captain, Patrol Division, Washoe County Sheriff’s Office (WCS), concurred, in support of Ms. Greene’s comments.

Senator Wiener asked Captain Nadeau if the timeline for booking a person while "driving under the influence" (DUI) had been resolved based on this legislative intent. Captain Nadeau stated the way the Washoe County Sheriff’s Office perceives this action is the arresting officer who handles the towing service would sign the form and turn it over to the towing company, and this would not impact the department as far as the timeline. He said the department had a concern about some of the cost associated with this bill and today that had been addressed by the committee.

Senator Washington asked Ms. Greene if a person should be pulled over for drunk driving and their blood alcohol content was 0.10 percent, and the car gets impounded at that point; "Would the car be impounded for 15 days before hearing?" Chairman O’Donnell expounded that the key issue would be if this person’s system should have 0.10 percent and if he is considered drunk. He continued to explain that if the owner of the car says that he did not give permission to this person, then the owner could appeal it. If the owner of the car has a "hardship" and this car might be the only car in the family, he could appeal it. Chairman O’Donnell summarized several criteria:

Senator Amodei asked Ms. Greene if someone gets pulled over and were not the registered owner of the vehicle this law could create a presumption that this vehicle was knowingly loaned to that person, who the owner would not have known this was the person’s intent to become intoxicated. Senator Amodei stressed his concern when the registered vehicle owner is not the person driving the vehicle, and this owner should not have to wait up to 15 days to prove by a preponderance of evidence to the hearing officer. He asked Ms. Greene if there were any provisions addressing these issues. Ms. Greene drew attention to the certain exemptions in the bill on page 2 and said, for example, the rental car services are exempted.

Senator Amodei asked Judy Jacoboni, Lobbyist, Mothers Against Drunk Driving, Lyon County Chapter, for her feedback on the issues of a drunk driver getting pulled over while driving someone else’s vehicle. Ms. Jacoboni stated, from her personal experience, the owner of the vehicle would be taking a risk whenever he loans his vehicle to someone else. She iterated that he is risking whatever damages this person might incur, and indicated this would be another category of risk that the owner of the vehicle might assume. Ms. Jacoboni said an employer takes the same risk by letting an employee drive the company vehicle, and she strongly believes in the consequences of having the car impounded; then having the car get into an automobile accident; and then having the vehicle taken away as evidence. Senator Amodei stated that he understands this issue, but he is looking at it as a culpable conduct; and believes if he should drive under the influence, then he should be responsible. He said if he loans his car to someone for a couple of days he does not know that this person would get intoxicated. He justified that he is only trying to find the culpability in it. Senator Amodei told Ms. Jacoboni that she had brought out some good points regarding the company vehicle issues.

Chairman O’Donnell responded by saying these provisions are more targeted at "junior" who does not own the vehicle, but was given the vehicle by his father to go out on the town. As it turned out, he went out drinking or did drugs and got into an accident, or got pulled over and arrested. Senator Amodei replied that is a great statement if we want to include "junior" in the language, because he would support it, if it was in junior language. Chairman O’Donnell gave another example, "If a drunk driver gets his own vehicle booted, and really needed to drink, this person could borrow someone else’s vehicle, and if the language was amended differently then this same driver could be arrested for a DUI again. The next time they would not have to worry about the vehicle because it would be impounded again."

Chairman O’Donnell asked Ms. Greene if she could offer some language to satisfy these hardships. Ms. Greene pointed to page 2, line 8 of the bill which contains the exception: "The officer shall not seize the vehicle if the vehicle is: (a) Stolen; (b) Rented or leased; (c) Owned by a foreign government, the Federal Government, a state government or a political subdivision of a state government; or (d) Owned by a business and was being driven for a business related purpose." She added, "or involved in a criminal offense which would constitute a felony." She suggested to capture the people to which the owner loaned their vehicle, write in a provision that says, "or any person that has permission to drive the owner’s vehicle and the owner of the vehicle has no reason to believe that the borrower would become intoxicated or use controlled substances."

Senator Washington stated that he does not share the same sentiments as Senator Amodei, but his concern is when a vehicle is impounded without any due process in the court. He continued to ask what would happen if the driver pleads not guilty and has up to 15 days before he goes to court. Chairman O’Donnell told Senator Washington how this provision would really work stating, "When a person gets involved in a DUI, and gets arrested, the vehicle goes to the tow-car lot. Now the vehicle has been impounded, and the driver cannot get the vehicle until the tow-car company has been paid." He said there is absolutely no due process involved with the amount of monies that would have to be paid in order to get the vehicle back. But the driver could tell the tow company where to transport the vehicle and the tow company would take it there; then the tow company would place a boot on it. Chairman O’Donnell insisted that this vehicle would still belong to the driver, but the driver may not have the privilege of driving a vehicle for 30 days.

Chairman O’Donnell stated that there were over 12,000 arrests in the State of Nevada last year and 8400 convictions. He persisted if this number could be dropped by half next year, and half the following year, he strongly believed the committee could say that they did a wonderful job.

Senator Washington stated that he is not trying to uphold DUIs and the due process was his only concern.

Senator Care asked Ms. Greene if she could foresee some circumstances where this legislation would find, at a hearing, a 0.10 percent alcohol content in the person’s system and later, at a trial, that person would get acquitted. Conversely fail to get his car back at the hearing and then go to trial and he could also be found guilty. Senator Care asked if she had seen any of these inconsistencies. Ms. Greene answered yes, she could see the inconsistencies because they happen all the time. As a matter of course when the DMV&PS conducts a DUI hearing, the DMV&PS’s only inquiry would be whether the driver’s blood system was at 0.10 percent or more while driving. She explained that the driver is not beyond a reasonable doubt standard, and stated when there is a DUI trial, it is a different ball game and there could be various reasons why the driver might not be found guilty. The current law states when the DMV&PS has a hearing the driver loses the driver’s license, depending upon whether it is a first or second, 90 days or a year offense. The driver still could be found not guilty at the trial or be found guilty with a lesser offense, because the trial is a totally different arena. Just because the driver has not been found guilty at the trial does not mean that DMV&PS would not revoke the driver’s license.

Chairman O’Donnell responded, for instance, if a driver refuses to blow into a machine or refuses to give blood, the police officer would take the driver’s license for a 1-year period; and the driver does not have the right to drive, no matter what vehicle he has. This is the current law.

Senator Care asked if the results from the DMV&PS were admissible at a DUI trial. Ms. Greene replied, "The results should not be admissible, but often the defense counselor, in the way of cross examination of the officer who appears both at the DMV&PS’s hearing and at the criminal trial, somehow the results are mentioned and they are vigorously objected to, and sometimes the result becomes a part of the record or sometimes it does not."

Senator Wiener asked for clarification regarding the federal requirements. Chairman O’Donnell asked if there was anyone present from the Nevada Department of Transportation who would know about the impoundment requirements of the federal funds. Chairman O’Donnell told Senator Wiener that he had been informed that the federal impoundment requirements would only be required on habitual offenders; in other words, second-time, third-time or fourth-time impoundment. He said that this provision is a little bit more harsh, by trying to cut down on the first-time offenders. Chairman O’Donnell stated that Washoe County had 1300 first-time offenders, and 300 second-time offenders. Ms. Greene confirmed that there were about 2400 convictions for all types of DUI’s. Chairman O’Donnell indicated that the federal law impoundment is a much longer.

Senator Wiener asked Chairman O’Donnell, "Would the State of Nevada receive federal funds if they are not in compliance?" Chairman O’Donnell stated there would be a penalty; if we do not comply with the federal impoundment law, the funds given to the State of Nevada would be less. Chairman O’Donnell said, however, S.B. 208 would satisfy the federal impoundment law. He also said he had received all this information from Tom Stephens, Director, Nevada Department of Transportation.

Senator Amodei pointed out section 5, page 3 of the bill, starting at line 18, and suggested some changes in the language; "If the owner of a vehicle was not the driver at the time the vehicle was seized pursuant to section 3 of this act, the owner may, at any time during the subsequent period of immobilization, submit a written petition or statement to the department to rescind the order of immobilization and remove the immobilization device from the vehicle." Senator Amodei stated that he would like to try to formalize the language in this section.

Chairman O’Donnell asked the committee to review page 4 of Amendment No. 143, subsection 6, and requested suggestions. Ms. Greene added amendments to page 4 and read aloud, "subsection [paragraph] (b): The owner did not consent to the operation of the vehicle by the person who was driving the vehicle at the time the vehicle was impounded, if the owner knew or should have known that the person who was driving the vehicle was or would become intoxicated while in possession."

Senator Washington asked, "How would the owner know if the driver would become intoxicated?" Ms. Greene noted first of all, if the keys are handed to a person who is obviously intoxicated. Secondly, if the owner hands the keys to a person who has two or three DUI’s and knows it. Thirdly, the keys are handed to someone, who says, "I will see you after I get back from Harry’s Bar;" or might be going to a party, and the owner knows this person drinks.

Chairman O’Donnell asked Michael E. Hood, Colonel, Chief, Nevada Highway Patrol Division, Department of Motor Vehicles and Public Safety, "How fast could an administrative hearing be scheduled by the DMV&PS?" Colonel Hood stated it would depend on DMV&PS’s case loads at that time. But this person would go through a normal hearing process with the hearing officers that the department have currently in the department. He said these hearings are processed within 10-15 days on driver’s license revocations. Colonel Hood concluded and said this bill would definitely meet the requirements of the federal law for the State of Nevada.

Senator Shaffer asked Colonel Hood if there were any other options that would meet the impoundment requirements. Colonel Hood answered "yes," there are four requirements available. Chairman O’Donnell asked how much jail time would be required for repeat offenders, and if the legislation uses this area. Colonel Hood responded that there would be a prison requirement and he could not give the exact amount. Chairman O’Donnell asked if the legislation was needed to enforce all four requirements. Colonel Hood stated the State of Nevada already has met three of the requirements, but without the adding the federal impoundment law this state could lose the federal funds.

Senator Shaffer gave a hypothetical situation by saying, "What if both owners had equal title ownership right to the vehicle, and they have several children and both of their incomes are needed, and one of the owners ended up without the vehicle. Would they both be out of a vehicle, with children starving, up to 15 days if they cannot work?" Ms. Jacoboni stated in this case the driver’s license would be revoked at that time, and questioned Senator Shaffer, "Why would this person need a vehicle?" Senator Shaffer answered, "Because there is only one vehicle for this family." Ms. Jacoboni told Senator Shaffer then this would involve the "hardship clause" of the bill.

Chairman O’Donnell commented all these decisions would be boiled down to a philosophical point, whether it would discourage people from drinking and driving. He commented further if this is not the case then this Legislature does not need the bill.

Senator Amodei suggested S.B. 208 be brought before the committee once it has been revised by the legal department. Chairman O’Donnell agreed.

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Senator Washington reported, for the record, that he understands the implications of what needs to be done in this committee on S.B. 208, but prepared his statement to say he does not support drunk driving, and is not in favor of those who continually break the law, or repeat DUI offenders. He indicated that this is a society in which the Legislature needs to continue to look for better options in curbing the drunk driving and still continue to hold the offenders responsible if they break the laws. Senator Washington stated that he reluctantly will be voting for this bill because of the federal impoundment laws. But he believes this bill could be enforced, and it also could infringe upon someone’s constitutional rights. He accepts the explanation, but he seems bothered deep inside that there is something wrong with this bill. He would like to support the fact the State of Nevada does not permit, does not uphold or endorse DUIs. Since there are presently no alternatives, he does support this bill.

Senator Wiener stated, for the record, she is struggling with this bill, as well, echoing many of the remarks of her colleague from the north. Senator Wiener stated they have grappled with this bill and have been trying to define some language or resolution. She reiterated as her colleague also had stated, she cannot speak for the committee, but she is violently opposed to people who abuse their driving privileges and cause injuries and damages to property, and to themselves, and to many others as they get behind the wheel. She commented, "Intuitively, I am struggling with this piece of legislation." Senator Wiener explained that she realizes that the bill’s intent goes above and beyond the call of duty and it is a bill of passion. She reiterated that she reluctantly supports the bill and would like to continue to study it and reserve her vote as she would render it on the floor; but said she would lend her support to the bill and will vote with the committee.

Senator Care stated, for the record, that he would like to point out that he is the one who has prosecuted drunk drivers, and he pretty much knows how this works. He stated, as a lawyer, that he has some reservations about the legislation and the amendments as he understands it, but it is a critical issue, and a public policy, and it should be heard on the Senate Floor where all the world could watch it or see it. Senator Care stated that he would vote to get it out of the committee, but as it comes before him, he will continue to study it, listen to a lot of people, and then he will vote on the floor.

Senator Shaffer also stated that he will also reserve his right to vote on the floor.

Chairman O’Donnell closed the hearing on S.B. 208. He announced that Senate Bill (S.B.) 450 and Senate Bill (S.B.) 490 would be placed on another agenda.

Chairman O’Donnell opened the hearing on Senate Bill (S.B.) 267 and asked Senator Amodei to brief the committee on what had been discussed in the subcommittee.

Senator Amodei referred to the Nevada Revised Statutes (NRS) 482.266, and explained that these amendments (Exhibit E) had been initiated by the DMV&PS. There were also some added amendments which were brought forth from the Sixty-ninth Legislative Session. He noted that in the subcommittee meeting there were some concerns expressed about the DMV&PS being able to reissue the blue license plates prior to January 1, 1982, and the conditions that they would be in upon reissuing. Senator Amodei told the committee that what was before them was a proposed amendment which would basically rewrite the bill and asked them to review Exhibit E with him.

Chairman O’Donnell asked Senator Amodei if an owner gets a blue license plate reissue, would the owner receive the old blue license plate back? Senator Amodei answered that is correct, and the reason they would not get the exact blue plate back is the dies needed to make the "stars and the 69 in the same corner," would require DMV&PS to use approximately 40 different kinds of die styles. He said the good news is that no one is required to surrender their existing blue plates, and if the plates are still readable the plates can be continued. Senator Amodei confirmed that this does not guarantee that it would be a quality reproduction of the exact same dies that were used in the wide letter or 69 in the corner and there would be only a one styled blue license plate under this amendment. Senator Amodei continued to brief the committee on Exhibit E.

Chairman O’Donnell queried Senator Amodei on section 2 of Exhibit E, and wanted to know this section’s interpretation.

Senator Amodei explained:

Chairman O’Donnell responded that he had heard this bill’s intentions for the last two sessions. At one time this bill passed and another time it did not pass. He stated the reasons why it did pass was because the Legislature had promised the public that if they had a blue license plate, they could turn it in and get it refurbished and get exactly the same one back refurbished, or get an exact duplicate plate if they turned it in. Chairman O’Donnell stressed that anything beyond these measures, the Legislature would have a serious problem.

Senator Amodei pointed out to Chairman O’Donnell that these amendments were well coordinated with the DMV&PS, and he believed that the mentioned issues have been addressed. He acknowledged that he had coordinated with Brian Hutchins, Chief Deputy Attorney General, Transportation and Public Safety Division, Office of the Attorney General, who had indicated that there is a problem with establishing a property die to a specific style of license plates for the people in the State of Nevada, which would raise the question of how many of the various styles license plates are needed to be refurbished. Senator Amodei concluded this is why this plate is available to anybody across the state who is willing to pay the manufacturing fee.

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Chairman O’Donnell told the committee that he will be "voting no" on this bill only because he knows the individuals who own these blue plates and they are not going to be happy with the amendments, because he is very involved in car clubs.

Chairman O’Donnell closed the hearing on S.B. 267 and opened the hearing on Senate Bill (S.B.) 336.

Chairman O’Donnell recognized that S.B. 336 requires that legislators be appointed to the boards of the Regional Transportation Commission (RTC). He did not foresee a problem because when issues are being discussed among the members, the legislators are always drawn into these matters at a later time. He strongly noted that the Legislature would have a better understanding of the matters brought forth by the local jurisdiction in the respective communities. However, at times the legislators do not get this information and it would most definitely be nice to have some kind of communication links, so that this information could be brought back to the transportation committees or the Legislature with some kind of understanding.

Senator Wiener stated she was not able to attend the hearing, but basically listened to the review of the bill and has not read it. She said the legislators also do not have votes, other than input or feedback. She stated that the legislators could be the liaison to bring this information back firsthand because they attended the meeting and were able to participate in the dialog. Chairman O’Donnell answered "that is correct."

Senator Washington iterated that he honestly thinks the committee members should honor the request of Washoe County and the others to delete them from the bill. If there is a provision or problems then the committee could revisit the problems in the next session. He indicated that the county commissioners and the RTC have chimed in with him, and they requested that they be deleted from the bill. Senator Washington said there is an overall master plan that the legislators review, prior to the session, and if the plans are available, at least there would be an opportunity to have a dialog with them. He reiterated that they be deleted out of this bill and bring back that information next session.

Chairman O’Donnell asked Senator Washington if he was suggesting an amendment to do the population. Senator Washington agreed. Chairman O’Donnell read that the proposed amendment "would only be effective in counties that have a population greater than 400,000," and said he would go along with the changes.

Senator Care asked why provisions are different in the counties of Nevada. Chairman O’Donnell explained because provisions vary more in Washoe County than in Clark County and there are specific ways things are done in each county. Over the years the Legislature has continued to promulgate this type of law.

Senator Jacobsen stated that he has gotten somewhat irritated with this type of legislation before the committee today, because he does not think it is the Legislature’s intent to micromanage every detail that comes before the Legislature. He believes that the intent for the Legislature was to create laws that please the citizens of Nevada, and we do not do this. Senator Jacobsen said that we are ordinary citizens, if we [legislators] would like to take a matter on locally, or go to the county commission, or whatever it might be. He thinks it is the responsibility the Legislature that they should not put themselves in the position as the "Almighty." Senator Jacobsen commented that the system works best when you let it work. He believes in the separation of powers and thinks it was created years ago for this Legislature’s benefit. He strongly stressed the committee continue to move in these manners; no one needs the Legislature anymore, in his personal opinion.

Chairman O’Donnell suggested to the committee that they amend the bill so the counties and the respective county commissioners’ RTC would be responsible for billing any gas tax or any increase in fees to support their own highway fund, so the Legislature would not be micromanaging any of their transportation needs.

Senator Wiener inquired about the concept that S.B. 336 does not set a precedent for legislators to sit as nonvoting members, because the legislators are constantly being appointed to Executive Branch boards and commissions. She stated she is on the attorney general’s commission as a nonvoting member, and she was able to bring back information to the Legislature and introduce some bills for the benefit of the citizens of Nevada. Senator Wiener said that she could understand the county concerns, but again believes that a legislator would bring knowledge and information back that the committee could not receive only by having witnesses testify in front of the transportation committee.

Chairman O’Donnell announced that S.B. 336 and Senate Bill (S.B.) 379 would be held until the next work session.

RESPECTFULLY SUBMITTED:

Joan Moseid,

Committee Secretary

APPROVED BY:

Senator William R. O'Donnell, Chairman

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