The Senate Committee on Transportation was called to order by Chairman William R. O'Donnell, at 1:30 p.m., on Tuesday, April 20, 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

STAFF MEMBERS PRESENT:

Joan Moseid, Committee Secretary

OTHERS PRESENT:

Assemblywoman Ellen Marie Koivisto, Clark County Assembly District No. 14, testified in favor of A.B. 157 and noted it as a child safety bill. She acknowledged that pickup trucks are an increasingly popular form of family transportation. Occupancy protection inside the cab is limited by a number of factors including space, the number of seat belts, and the fact that pickup trucks are not required to meet all passenger car safety standards. Space limitations often lead to children riding in the cargo area. She stated, "Kids are not cargo." The cargo area, with or without a canopy, has proven to be a source of injury and death to both children and adults. A State of Washington study found a fatality risk 10.4 times greater for persons riding in the cargo area of a pickup truck than the risk to the general population of people involved in a traffic collision. Ejection from the cargo area during a collision is a major cause of injuries and death for pickup truck passengers. Most non-collision deaths are caused by falls due to swerving, braking or rough roads. In one-third of these cases the victim was standing up, sitting on a tailgate or horsing around. Over 200 deaths a year occurred involving persons riding in a pickup cargo bed. More than half of those deaths were children and teenagers. She added that children in covered cargo beds are also exposed to the danger of carbon-monoxide poisoning from exhaust.

Assemblywoman Koivisto passed out a packet containing copies of letters and e-mails, "State Laws for Passengers in Pickup Trucks" and a Local Tour Permit Application form from the Boy Scouts of America troop (Exhibit C).

Assemblywoman Koivisto stated that the bill is written with exceptions and cited, if a pickup truck is "… not being operated on a freeway or other road which has two or more lanes for traffic traveling in one direction." She commented this would be okay for children under the age of 18, if it is "… being used in the course of farming and ranching." She explained that this provision was added due to the concerns of a family-man carpenter. She added that another exception would be if it was "being driven in a parade authorized by local authority." Assemblywoman Koivisto noted that there would be two different citations. If a person 18 years or under was riding in the bed of an open pickup truck or flatbed truck, it would be a primary offense; or if they were riding inside a slide-in camper shell or slide–in camper, it would be a secondary offense.

Chairman O’Donnell clarified that one of the exceptions would be, "… illegal to have anyone under the age of 18 years in a camper shell or a bed of a truck …," and if this occurred would the driver receive a ticket for negligence, for a moving traffic violation, or for having someone in the bed of the truck. He asked, "If they are cited for a camper shell, would it be a reduced fine of $25?"

Assemblywoman Koivisto answered, "Mr. Chairman, this is not a moving violation for the purposes of Nevada Revised Statutes (NRS) 483.473." She noted the language for this type of citation would be the primary offense which comes from the NRS section dealing with child safety seats, and the secondary offense language comes from the NRS section dealing with seat belts.

Chairman O’Donnell asked whether this bill would exempt the ranchers and farmers, or whether it would apply to them. Assemblywoman Koivisto stated that this provision is very broad; "if the vehicle is being used in the course of farming or ranching," it does not specify the roadway. Chairman O’Donnell asked if landscaping could be considered ranching because there are a lot of companies who use the truck bed to transport their employees. Assemblywoman Koivisto replied, "I do not think so."

Senator Care asked Assemblywoman Koivisto to explain how the age factor was determined and if the vehicle had to be stopped for another offense before it could be cited. Assemblywoman Koivisto replied that stopping the pickup first is just for the secondary offense. Senator Care stated that he had seen pickup trucks where there were kids 5 and 6 years old in the cargo area. He implied this should be a primary offense, and asked for comments. Assemblywoman Koivisto expounded it is a primary offense if the kids are in an open pickup bed. She indicated that the age of 16 years has been amended to 18 years of age, because one of the committee members had a concern about the number of high school kids that are seen riding around in their pickup trucks with a load of kids in the back.

Michael E. Hood, Colonel, Chief, Nevada Highway Patrol, Department of Motor Vehicles and Public Safety; James F. Nadeau, Lobbyist, Captain, Patrol Division, Washoe County Sheriff’s Office; Stan R. Olsen, Lobbyist, Lieutenant, Government Liaison, Las Vegas Metropolitan Police Department; and David S. Gibson, Lobbyist, Clark County Public Defender, stated support for A.B. 157.

Chairman O’Donnell closed the hearing on A.B. 157, and opened the hearing on Assembly Bill (A.B.) 247.

Scott Kendrick, Regional Vice President, Enterprise Rent-A-Car, spoke in favor of A.B. 247 and the amended changes. Testifying from prepared text (Exhibit D), Mr. Kendrick stated that existing legislation has been in place for 10 years and limits the pricing for the industry’s collision damage waiver product to $10 a day. He said revenue generated by the collision damage waiver insurance product goes toward offsetting the losses incurred by renters damage to vehicles. He pointed out in the last 2.5 years alone, the industry has seen collision losses increase by some 45 percent, while due to the $10-a-day limit, the income from selling this insurance product has increased less than 2 percent. Mr. Kendrick stressed the car rental industry should be allowed more flexibility regarding pricing this insurance product and let the free market system of supply, price and demand motivate consumers to decide what they are willing to pay for.

Chairman O’Donnell stated that insurance companies are not subject to the Sherman Antitrust Act. This is why the Legislature is placing this information in the statutes, and he said these provisions are now considered as antitrust.

Senator Care inquired, "Assuming that 10 years ago $10 was a fair price using the Consumer Price Index (CPI), how much would $10 have been worth 10 years ago?" Chairman O’Donnell estimated an increase of 7 percent a year.

Robert A. Ostrovsky, Lobbyist, The Hertz Corporation, stated his support for A.B. 247 and noted how the fees charged for short-term lessor insurance was purchased. He said approximately 20 percent of the lessors actually purchase collision damage waiver insurance and 80 percent do not. Mr. Ostrovsky acknowledged that the insurance rate has not been even throughout the year and discovered, for example, in Reno, that the percentage of the people who buy this product jumps quite high the minute it rains or snows. He stated that the weather is one of the reasons why people buy this insurance product or buy it because they have no other insurance, or because it is no hassle. Many times corporations require that their employees who drive a lot buy this product. Mr. Ostrovsky claimed there had been some question if $20 was reasonable. He commented it is reasonable if it could be purchased when there is a high risk, and if the person could only buy it on days that they drive; if the individual did not have any insurance year-round, or did not have problems in the rain or snow.

Mr. Ostrovsky stated that The Hertz Corporation thinks the insurance is a very good bargain. He iterated that no one is forced to buy this product; in fact, it is voluntary. He said a relatively small accident with two air bags activated could cost $800 to repair, and approximately $400 each just for a little front-end or rear-end damage, which has driven the cost of vehicle repair up substantially, since this provision had been placed into the law. He stated if this bill passes the price would become more reasonable based on the value of the automobile. Today because the cost would be at an artificially low rate, he explained, "If a brand new Cadillac or Lincoln is rented, the charge would be the same $10 as someone renting a Ford Fiesta." Mr. Ostrovsky mentioned if the cap is removed, the cost would return to the $20 used in this bill. He referenced another example by saying, "If someone rents an expensive Ford Explorer or Cadillac there would be a charge of $18.95 or $19.95 for this insurance product, and if a small compact vehicle is purchased it would be priced at $8.95, $9.95, or $10.95." He concluded this is the kind of practice that goes on in other states where there is a spread in the cost because it is a very competitive business. Mr. Ostrovsky concluded The Hertz Corporation believes the insurance product will become as competitive as is the pricing of the vehicles.

Senator Care stated that he is interested in the standards for this industry. He asked, when a person rents a car, if they are asked if they have other insurance coverage that would cover the car being leased. Mr. Ostrovsky responded that the employees at Hertz Rent A Car do not question individuals about what insurance coverage they may have, but they are asked if they would be interested in purchasing the leasing coverage. He stated that there is a current bill asking all the leasing agents to have a licensed insurance staff on each site.

Mr. Kendrick informed the committee that the Enterprise Rent-A-Car typically asks a person if they are interested in purchasing insurance while leasing the vehicle, or if they are covered under their current insurance plan.

Senator Wiener iterated that she had heard of several different practices in the insurance industry. She recalled renting a car and was told she had to purchase insurance at the time she signed the rental agreement. Chairman O’Donnell replied that is illegal. Senator Wiener asked Mr. Ostrovsky whether this is standard to this industry. Mr. Ostrovsky explained there is no way for rent-a-car companies to know whether a person has insurance or not.

Chairman O’Donnell acknowledged that there is a law that passed which required a waiver to be signed stipulating "the person leasing a vehicle is not required to purchase any insurance coverage." Mr. Ostrovsky stated that his client, The Hertz Corporation, does not question the insurance coverage.

Chairman O’Donnell closed the hearing on A.B. 247, and opened the hearing on Assembly Bill (A.B.) 271.

Ralph Felices, Supervising Investigator, Bureau of Enforcement, Registration Division, Department of Motor Vehicles and Public Safety (DMV&PS), provided testimony on this department-requested bill which creates statutory safeguards for consumers and businesses involved in vehicle consignment sales. Mr. Felices stated that the DMV&PS requested this bill in an effort to help prevent vehicle consignment frauds and abuses which have caused consumers and businesses substantial losses over the past 4 years. He added, in general, those losses have occurred because a small percentage of businesses selling consigned vehicles fail to pay vehicle owners or lien holders because the proceeds of the sale were diverted to business or personal expenses. Mr. Felices said in other cases vehicle owners, while not always suffering a direct financial loss, were surprised that their consigned vehicles were being routinely operated by business employees for personal reasons during the period of consignment. Circumstances of fraud or abuse may vary slightly with each case. All share two common elements; the commingling of sale proceeds with other business funds, and weak to nonexistent consignment contracts. He announced A.B. 271 was written to address both of these elements by formally spelling out the rights and responsibilities of the parties involved in the consignment transaction. The bill provides definitions for consignment sales and contracts and clearly establishes what must be provided in a consignment contract; it requires that the fund for each consignment sale be placed in a separate trust account; it prohibits proceeds of the sale from being commingled with other business funds, and provides penalties for any misappropriation of these funds. Additionally the bill sets definite time frames for notifying cosigners that the sale has taken place and prohibits operating a consigned vehicle, unless the owner has granted an expressed written consent to do so.

Chairman O’Donnell queried, "What determines the profit and what determines the base if a consigned vehicle is sold?" Mr. Felices responded these are the contractual agreement parts of the contract. At the time the contract is signed, there is a fee for the sale, which is usually a set fee or a percentage of the sale amount. Chairman O’Donnell iterated that the percentage is the part that concerns him, and questioned how the consignor would know the selling price of the car. Mr. Felices explained that the contract would spell out what the owner of the vehicle needs or wants for the vehicle. It would stipulate what amount was needed to pay off another lien holder, as well as any equity the owner has in the vehicle. Any amount over the aforementioned amounts would be the dealer’s.

Chairman O’Donnell presented a hypothetical situation, "If Bob wanted to sell his car and Valerie wanted to buy it, and Bob said, "Sell the car for as much as you can get for it and I will take 75 percent of the selling price of the car." Mr. Felices stated that usually these types of agreements are not entered into unless the car is not needed by the owner. These agreements are very well set. The owner would know how much the vehicle is worth, how much of a lien, if any, is on that the vehicle, which might be worth $20,000. If the owner owes $15,000 and the owner wants $3,000, the dealer must pay off the $15,000 lien and would keep the extra $2,000, which the vehicle is worth. This is all that is written within a contract or it would be spelled out in the contract that DMV&PS has tried to design in this bill.

Chairman O’Donnell asked what the problem has been in the past. Mr. Felices stated that the contracts have been somewhat open-ended based on clever wording by the individual seller. He gave an example, "The Interim Finance Permit was manipulating the sale by allowing the vehicle to be driven for 20 days while money was already paid. The dealer’s report of sale had actually been consummated, and the consignee was being told that the vehicle had not been financed, yet. Money had already been paid to the consignor, and he was concealing the fact from the consignee, so that he could sell another vehicle to pay for the first."

Senator Care queried whether there were any particular cases where contracts were "cleverly worded," and if this problem was widespread. Mr. Felices explained the wording put into the consignment contract, by the seller, would be somewhat understood by the consignor, at least his interpretation of what it should say; for example, "The consignor will be paid 20 days after the issuance of the dealer’s report of sale." If the individual that owns the car sees his car driving around town, he thinks it has been sold. Mr. Felices said the Interim Finance Permit is used to obtain financing. If the original financing falls through, the dealer takes back the car and could actually issue another Interim Finance Permit to another buyer. In the meantime, the consignor believes his car has been sold, because it was being driven. The seller is actually using the time, from the 20 days interim plus the dealer’s reports of sale to conceal that he has actually already received the money. The Interim Finance Permit was used, in this particular case, to extend the amount of time by reissuing those permits, unless someone would catch the fact, and actually see the permits being reissued over and over. He said that buyers usually wait for the dealer’s report of sale so that they can register the vehicle. Consignors are waiting for payment thinking that their vehicle is waiting to be financed when the vehicle has already been sold, either to out-of-state buyers, or to a local. He closed by saying, in Reno alone, he could recall three instances adding up to $1.75 million in fraud.

Chairman O’Donnell closed the hearing on A.B. 271, and opened the hearing on Assembly Bill (A.B.) 329.

John P. Sande III, Lobbyist, Nevada Franchised Auto Dealers Association, spoke in favor of A.B. 329 and said the industry requested this bill’s first reprint. Mr. Sande stated this bill deals with "loaner plates," and noted, in the past, until 1997, loaner plates were used not only to furnish cars to customers when they brought their cars in for repairs, but also were used when a dealer loans a car to a university, a church, a school, or other types of charitable activities. The loaner plates could be turned over from car to car.

Mr. Sande noted as a result of certain confusion in 1997, the practice stopped because the old law said that it could only be used for customers. It was deemed that the university system, school districts, counties, and others, were not customers in the ordinary course of business. He explained:

Mr. Sande pointed out the legislation is supported by the University of Nevada, Reno (UNR) and the University of Nevada, Las Vegas (UNLV). Most of the loaner cars in the past have been utilized by these two entities; for example, the president of the university, and the people in the administration. However, a lot of the cars are loaned out to the athletic department as a perk [perquisite] for coaches and other personnel in the athletic department. He referred to a letter from Chris Ault, Director of Athletics, University of Nevada, Reno (Exhibit E), which indicated an economic impact of $132,000 annually should the cars be taken away.

Mr. Sande stated that the bill was amended to limit the use by 501(c) to 501(c)(3) of the Internal Revenue Code because 501(c) encompasses all sorts of nonprofits, and it was the desire of the committee that it should be limited to educational or charitable organizations.

Chairman O’Donnell queried, "What is the ratio on loaner plates, now, and how does the dealer get a loaner plate?"

Wayne Frediani, Lobbyist, Nevada Franchised Auto Dealers Association, stated as he understands the "loaner plates" are issued by the DMV&PS and there are no strict limits on them. There is a $12.50 fee that is paid for each loaner plate and, currently, the loaner plates are used strictly for service and repair, in the course of business. Mr. Frediani commented that he does not believe that a set number could be issued. He said, as it relates to the dealer plate, there is a set number and they are called "Dealer Special Plates." They are limited to 12 plates per year.

Chairman O’Donnell queried why a loaner plate would be loaned to the State of Nevada. Mr. Sande answered it would vary from dealer to dealer, but he would imagine the reason would be an interest in the university system. They would like to help out by loaning a car. That gesture would provide good publicity for the dealer. In the case of the athletic department, it might mean that the dealer would be entitled to tickets or booster status from the university.

Chairman O’Donnell asked whether the universities would get loaner plates or cars. Mr. Sande answered they would get cars, and this is typically how it is done. The dealers allow the university to use the vehicle for 6 months and then sell it as a used car. This is just a way for the dealer to be philanthropic. He said there are a few loaned cars within the system for drivers’ education, also.

Chairman O’Donnell asked what the dealer gets out of this provision. Mr. Sande responded the dealer has the pride and knowledge that people know that particular dealer has given a car for the use of the church or other organization. This is just like any other philanthropic adventure, there is a good thing being done, but the dealer would get the credit.

Senator Care asked what the downside would be if this law was not passed. Mr. Sande replied some dealers would continue the program as they have in the past; however, it would make it less likely. For example, without this bill there is not enough incentive, with the result of the change in philosophy in 1997. Someone actually looked at the statutes and said current procedures were not proper. At that time, some cars were pulled back, including some driver education cars. He pointed out if this bill does not pass, it discourages the loan of cars to charitable or school organizations, and it could have an impact. Mr. Sande added that DMV&PS would be adopting regulations. They would address how these issues would be used, but basically they would be loaned to the university for lawful purposes. One of the purposes is the athletic department giving a car to a coach. It is standard and customary practice across the nation to receive these types of stipends for coaches, such as a car. If universities do not have perks [perquisites] to be competitive, they would have to raise additional funds, which would become an additional expense. He pointed out the university systems are having a very difficult time as it is complying with Title IX, which is the fairness between men and women in support of athletics, so this could have a negative impact if this bill does not pass.

Chairman O’Donnell inquired whether the dealer received preferential treatment such as a free season pass, when he philanthropically donated to the university. Mr. Sande responded it would depend upon the university. The fact that dealers are contributors would have some impact.

Mr. Frediani mentioned the economics while this car is loaned to whatever organization under which it falls, the dealer is paying the "flooring" each month that the car is not registered. The flooring is paid on this vehicle while the car is loaned and when the car is returned it would normally have 6,000 to 8,000 miles, possibly more. It has to be depreciated down from the sticker price of the new vehicle and then sold for less money. The dealer would absorb the cost from the "flooring" while the car was loaned. As far as benefits, there are some dealers pictured in the game programs listed as donors of vehicles to the athletic department. They might also get what is called good will or complimentary advertising on the scoreboard, but there is no direct financial benefit to the dealer.

Senator Wiener inquired if the promotion is given to the dealers, could it be partially written off as promotion in doing business, because as a promotion there is trade in a public place. Mr. Sande stated that this matter is not really a trade, and explained that it would be a violation to the National Collegiate Athletic Association (NCAA) rules. Whether or not this type of program is encouraged would not have an impact. If a coach has a car and gave it to an athlete, he would be in violation of the NCAA rules. As far as the trade goes, it is not a quid pro quo if there would always be tax ramifications. But if there is a strong supporter of the university, whether donations are given to the athletic department or to the president of the university, it is more public pride and also wanting to do a good thing.

Rick C. Bennett, Lobbyist, University of Nevada, Las Vegas, concurred with Mr. Sande’s testimony, and supported A.B. 329.

Chairman O’Donnell asked if a new coach is hired, who would go out to the dealerships in town and recruit them to loan a car. Mr. Bennett indicated that this is a standard practice as part of the package to provide a courtesy vehicle to the coach, whether for the basketball coach or the women’s volleyball coach. At UNLV they have been very successful, in what is called the "cars program," which is set up to provide courtesy vehicles to coaches and a few other members of the athletic department. In exchange for this, recognition is provided to the dealers, through programs and announcements. There may also be, depending on the wishes of the dealer, a certain trade out with tickets, as well. What this allows the university to do is basically save or utilize $150,000 a year in the athletic budget for other purposes rather than providing vehicles to coaches. He stated that UNLV believes this is a substantial savings to the department.

Chairman O’Donnell asked Mr. Bennett if he solicited for the car program. Mr. Bennett iterated that Jim Bowler, former women’s basketball coach, is currently the athletic development director for UNLV and works with the dealers on this program.

Robert E. Dickens, Lobbyist, University of Nevada, Reno, stated that he supports this legislation. Chairman O’Donnell questioned Mr. Dickens about how many cars UNR has in their "car program." Mr. Frediani said there are 22 cars in the athletic department for both men’s and women’s sports, as well as the president of the university.

Senator Care asked why should a coach, someone who deals in athletics, have the privilege of a vehicle loaned to him as opposed to the physics professor who, 10 years down the road, receives a Nobel prize. He said it could be argued that this professor in physics is much more important than a temporary performance of the athlete on the basketball court.

Mr. Dickens responded, "I might be inclined personally to agree with you, but I think it is important to note that loaner vehicles are provided to this individual as part of a total compensation package." He commented he did not want to get into a philosophical discussion with the committee about who is totally compensated.

Mr. Sande stated that he has a different attitude towards this bill, because when he looks back at his college career, he learned more from athletics than he did from anything else in his life, as far as what he believes in today. He explained that college athletics, rightly or wrongly, are revenue sports, and the revenue is primarily for football and basketball. If there is a successful program, it would fund a lot of the other sports, both men’s and women’s. Mr. Sande iterated that this is competition if the colleges want to have a quality coach. A compensation package would be provided to include a car, and this is how it is set up and is pretty much like all university systems as a whole. Nevada’s university system is primarily based upon government funding. He suggested the athletic budgets rely to a large degree on contribution from boosters and also revenues from football and basketball primarily, as these are the money sports.

Chairman O’Donnell asked, "What is the rule on the NCAA?" Mr. Sande stated that the NCAA is very strict compared to when he was in college. He explained that an athlete cannot receive any type of compensation for playing sports. Chairman O’Donnell asked why. Mr. Sande said that the NCAA has gotten to the point of over regulating and has made it impossible for any benefits to go to an athlete except what the athlete receives with a scholarship.

Mr. Dickens spoke, on the record, as a private citizen and a father of an athlete who has been recruited to play soccer at Oregon State University. He stated that he is managing the rules for his son, in an NCAA environment, and recognized it as being very strict. Mr. Dickens commented that he receives one telephone call per week from the coach, and one campus visit, and no considerations. Senator Wiener concurred that the NCAA rules are very strict, especially in Nevada.

Senator Washington said that while he was attending UNR he had recognized the unfair scrutiny that had been placed upon athletes that normally would not have been placed on regular students. Some of it could be justifiable with the misuse of the privileges. He asked "Who is allowed to receive the 501(c)(3) provisions of this bill?" Mr. Sande expounded if these provisions are utilized within reasonable use, the 501(c)(3)s listed are entitled to them.

Chairman O’Donnell questioned Mr. Sande "Are we sending the right signals with this bill?" Mr. Sande replied "Yes." Chairman O’Donnell clarified that there are students who are athletes and prohibited from receiving any type of compensation whatsoever. Yet the coach is getting all the perks (perquisites) and freebees. He asked is there some intrinsic dichotomy where students cannot, but the coach can. Mr. Sande clarified that these compensations are not freebees, and the coach will receive a W-2 statement from the university indicating that the coach has to pay income tax on the value of the use of the car. A car allowance is just another way, instead of paying them cash, which is given by a lot of companies. He summed up that he was not here to defend the NCAA or their rules but a lot of people do believe there needs to be some revision to the rules. He does not see an ethical issue with this bill.

Mr. Bennett averred this is responding to the marketplace. Whether the vehicles could be provided through the dealership program or lease the vehicles out of the athletic budget, the athletic department is in competition with other schools across the nation for quality coaches for all sports. He added that this is a part of the compensation package. But they are still required, as indicated, to pay taxes on the benefit. They are paying the insurance, the maintenance cost, gas and so forth for the vehicle.

Senator Jacobsen asked, "Would the liability be passed along with the automobile to the user?" Mr. Sande answered the user of the vehicle would be responsible for the insurance.

Mr. Dickens pointed out that the bill strives as a matter of public policy to accommodate the business relationship between the automobile dealers, the public and the national sense of private institutions with inter-curricular athletic programs for men and women. It is a way of providing some additional compensation to these coaches of a noncash variety, which is called a trade-out, that specifically builds strong business relationships between the institution of athletic programs and the private sector.

Chairman O’Donnell closed the hearing on the A.B. 329, and opened the hearing on Assembly Concurrent Resolution (A.C.R.) 3.

Assemblyman Tom Collins, Clark County Assembly District No. 1, provided a map of the state highways in Las Vegas (Exhibit F) to the committee. Assemblyman Collins stated that this bill was initiated 2 years ago from the Nevada Department of Transportation (NDOT), regarding the state requirements for repairs and NDOT’s lack of funds. For example, at one time the state roads were outside the City of Las Vegas; now those roads are in the middle of town. The Legislature addressed the issue of getting the state out of repairing city streets and more involved on state highways and routes. Assemblyman Collins stated that these roads would be a lot more efficient if the roads were traded to the rightful entity in exchange for other alternate routes of the highway system.

Senator Jacobsen acknowledged that the rural areas have always wanted the state agency to control a lot of the roads in the rural area and said NDOT would not take these routes because the traffic is not up to a certain number. He asked whether it would require a traffic count in order to determine what entity would be responsible for what routes. Assemblyman Collins answered this is more or less directed to a coordinated effort where the county would ask the state to take over a road because it has become an alternate highway route. NDOT could designate it as a highway. He confirmed that this issue would be a two-way effort for the rural areas to expand some of their roadways, as well as reduce some roads that are in the cities. Senator Jacobsen said he had noticed in the snow season where the road had been partially plowed because it was a state road and the other part would not get plowed because it was considered a city road. Assemblyman Collins agreed and noted that problem would be solved by this bill.

Russ Law, P.E., Chief Operations Analysis Engineer, Nevada Department of Transportation, testified his presence was not to support or oppose A.C.R. 3. Mr. Law stated that the proposed amendments on line 23, page 2, were agreed upon in the Assembly which allowed NDOT to set their budget limitations based on it. NDOT’s priority is to complete the projects. He testified that this bill would allow NDOT to complete other projects, as well, in conformance with the state maintenance system. Mr. Law stated that roads are transferred all the time. It is a lot of work which has to be cleared through NDOT right-of-way division before it is started. He concurred that there are some incongruent systems, as mentioned by Assemblyman Collins.

Senator Jacobsen queried whether the federal government mandated what road should be a state road. Mr. Law answered, "No, they do not."

Chairman O’Donnell closed the hearing on A.C.R. 3 and opened the hearing on Assembly Bill (A.B.) 407.

Laurel Stadler, Lobbyist, Mothers Against Drunk Drivers (MADD), Lyon County Chapter, spoke in support of A.B. 407, and stated that the main thrust for this bill is changing the threshold where the first-time offender would be evaluated to determine if he is an abuser of alcohol and drugs. This amendment would take out the 0.18 percent threshold and have all driving under the influence (DUI) offenders evaluated and receive the appropriate treatment. Ms. Stadler iterated that A.B. 407 is an early intervention measure that would ensure all DUI offenders receive evaluations at their first offense to determine if they are an abuser of alcohol and drugs. Appropriate treatment would be ordered for the offender. Ms Stadler added that MADD learned from treatment providers it would only make sense that the earlier the offenders get the intervention, the more positive the results are from the treatment. Additionally, studies have shown by the time an offender is arrested for his or her first DUI offense, they have averaged driving drunk at least 200 times. She said she relates this figure at every victim impact panel that MADD presents to DUI offenders, and she has never been challenged on it. Often near the end of the year, she could say that some of the offenders have probably driven 200 times drunk just that year. She had seen several heads nodding in agreement with the MADD panel.

Ms. Stadler commented further that first DUI offenders are not "the whoops I drank too much at a wedding offenders," that were so common in years before. Now there has been so much public information, so much education circulated by groups like MADD, that the general public is much more in tune with the devastation caused by drinking and driving. The first time offender is much more inclined to be someone with an alcohol or drug abuse problem, regardless of the blood alcohol count (BAC) at the time of their arrest. Ms. Stadler said this provision would also ensure that an offender who has multiple convictions that happened to be outside the 7-year window, would get the evaluation and treatment at his new first offense.

Ms. Stadler ended her presentation by asking the committee to consider this bill. The MADD group has never supported treatment in lieu of other DUI sanctions, but they do believe that treatment is a viable option. Once again she noted the earlier the treatment is received by the offender, the more possibility there would be a good outcome from the treatment. She indicated that a survey in northern Nevada was recently completed and the statistic was over 75 percent began their drinking careers at the age of 18 or younger. The vast majority of first-time offenders that come into the criminal justice system have a long history of drinking. MADD believes these provisions would be very appropriate in getting the first-time offender into treatment, if deemed appropriate. Ms. Stadler addressed concerns about the way the amended bill was passed by the Assembly committee, and stated, in the original bill, the bill drafters had taken out "DUI school." MADD would like to put the provision "DUI school" back into the bill.

Senator Care asked Ms. Stadler if she had stated that "the existing law is 0.18 percent." Ms. Stadler voiced that the existing law for a first-time DUI offender to be mandated to get an evaluation is 0.18 percent or higher and all second-time DUI offenders do receive an evaluation, as well as all persons under the age of 21.

Senator Care inquired whether there is a distinction between the 0.10 percent first-time offender and the 0.18 percent second-time offender. He believed there is an abusive drinker here versus the social drinker who went too far on the night that he or she was picked up the first time. Ms. Stadler responded what MADD has seen is the profile of the first-time offender has changed. There has been so much education, so much public information, a lot that was distributed by the MADD group, that people should know better, even the more responsible person knows better. She emphasized there may be the very, very occasional person where it might be their first time they got drunk and drove.

Senator Washington stated that he had received a letter from Sparks Justice Court and letters from other concerned constituents (Exhibit G), addressing court discretion, the BAC levels, and other concerns. He summarized the letters to the committee members. Senator Washington asked Ms. Stadler to comment. Ms. Stadler addressed one concern that stood out, and that was the cost. She could confidently say the cost of the amount of alcohol that most DUI offenders consumed prior to being arrested and convicted for their offense, was as much or more than the amount of money needed to pay for the evaluation.

Senator Washington iterated that he was not so concerned about the cost because that could be worked out. Three members of this committee are members of the judiciary committee. One of the primary issues regularly dealt with is "court discretion." The senator queried with this bill, "Are we taking away the judge’s ability to make these decisions for himself to determine what kind of treatment, what kind of program, or what kind of restitution shall be paid by the defendant." The judiciary committee is always concerned about the court’s discretion or the judge’s discretion. He said when would the legislators cross the line to assume the duties themselves or when would they allow the judge to work within his purview to determine the fate of the defendant. This will always be an issue.

Ms. Stadler commented that she could appreciate the concerns of the judiciary. She phrased, "We, as public safety advocates, have a concern for public safety." MADD has seen the numbers of offenders and the arrests; the numbers of deaths due to DUI are not improving significantly. MADD would look to the alternatives, as to what can be done as public safety advocates, to bring these numbers down. She explained that this matter was brought forth through a coalition of the MADD group with the northern Nevada DUI task force which includes several different agencies on it, and presented as a public safety issue.

Senator Washington stated that her comments were well appreciated. The committee members do not uphold the defendants who abuse alcohol and cause injuries and deaths on the highways or roads, but, at the same token, he thinks that the Legislature has to take into consideration, at least that the justices of the peace and municipal judges are going to have to evaluate these offenders and have the interest in setting public policies and public safety. He stated he believes that these issues should be included in a discussion to find out their concerns so that all concerns could be worked on together. Ms. Stadler stated that she would be happy to work with any of the other groups that would like to take a closer look at these concerns.

Senator Care referred to a letter from the Nevada Association of Counties (NACO) Exhibit G, and asked if there would be any concerns about the public safety versus the budget. Senator Care iterated if 0.18 percent was dropped to 0.10 would this provision increase the judges workload? Ms. Stadler concluded that she personally is willing to support public safety legislation. She stated emphatically, "I am definitely willing to put my money where my mouth is."

Senator Wiener referred and read aloud sections of a letter from Robey B. Willis, Lobbyist, Nevada Judges Association, and a letter from John K. Glen, Addictive Disorders Counselor (Exhibit G) and stated the letters are paralleled in sentiments. She indicated these sentiments definitely need to be closely reviewed along with other concerns, to create a dialog.

Ms. Stadler mentioned that the treatment staff and the evaluating staff, with whom MADD had worked, were in support of A.B. 407.

Robey B. Willis, Justice of Peace, Department I, Carson City; and Lobbyist, Nevada Judges Association, spoke in opposition to A.B. 407. He provided the committee with some background. Judge Willis stated that back in 1991 when this bill was brought forth, then-Governor Miller vetoed this bill. In 1993 this bill was submitted again by the treatment people from the Governor’s Task Force on Alcohol and Drug Abuse as pointed out in the letter (Exhibit G). It was settled that everyone could tolerate the BAC level of 0.18 percent because the 0.20 percent was too high for offenders on the second DUI. He felt that for 6 years this was a reasonable BAC level, and there have not been any complaints regarding this level. Judge Willis asked the committee to bear in mind that from 0.10 to 0.17 percent anybody that believes that they have a problem or the judges believe that they have a problem, the judge does have the discretion to order these evaluations. However, under this bill, the judges would no longer have this prerogative, and everyone would have to have an evaluation. The cost would be very high. He stated that Clark County alone receives around 4000 DUIs a year, and this bill would add another 2000 people to court appearance just in Clark County. Judge Willis said judges have a whole page of different DUI conditions that people have to deal with now. If one more is added the people would be set up for failure; and they are not going to appear. He said plus the fact of the load on the court, staff and new judges, and new clerks which become tough situations.

Chairman O’Donnell asked Judge Willis if he had made this similar presentation in the Assembly hearing. Judge Willis answered, "No." He and Judge James Mancuso had been watching the 0.08 percent bill because there was a 0.12 percent and above in the 0.08 bill. He stated that they did not see this in the bill unless it had been taken from the other bill. The opposition that is being sought before the committee today is people are now cognizant of this bill due to its speedy processing.

James V. Mancuso, Presiding Judge, Incline Village, Washoe County Justice Court, testified in opposition to this bill and said that they had been blindsided because they had received incorrect information that the bill was wrapped within the 0.08 percent bill. The judges did not prepare the opposition and this is why they were here today. Judge Mancuso explained, as Judge Willis had indicated, these cases are a lot more expensive and time-consuming to process when there is a mandated evaluation. The judges do agree that evaluation is worth it on second offenders and on high-BAC first offenders, but their opinion is the burden far outweighs the benefit on marginal cases. He stated that the Reno Justice Court judges have asked him to indicate to the committee that they believe the bill is unnecessary because the judges already have the discretion to do this on lower cases if they suspect a problem, and they do handle them. This has been emphasized to the new judges that they have the authority to insist on an evaluation on any DUI case.

Judge Mancuso indicated that the court system would become overloaded with warrants because of the "do not appear cases." He asked why the State of Nevada wanted to spend money on these cases when out-of-state people are here to visit only. He testified that he had talked with a judge from Colorado where they waive all evaluations on all out-of-state people. Judge Mancuso added, rural courts are lucky if there is one provider to do the treatment. If the person does the evaluation, then technically this person is not supposed to do the treatment because it would be a conflict of interest.

John Tatro, Justice of the Peace, Department II, Carson City; and Lobbyist, Nevada Judges Associations, presented another issue which would fall under this bill. He presented an example of a person who comes into an arraignment in custody, pleads guilty to DUI, and cannot be sentenced until they receive their evaluation. They cannot make bail. What would happen if the aforementioned county would have to pay to have this evaluation done. The cost for incarcerating people is extremely expensive. This is a large issue that really needs to be considered in this bill.

Judge Willis reiterated that Las Vegas’ evaluation centers are 3 months behind on the caseloads they have now and have to return these case to the judges for sentencing. He confirmed that this process is not working now. If this bill is passed, the workload would be doubled.

Senator Care asked if someone is convicted with a BAC level of 0.10 percent, would the court have the discretion to go ahead and refer this person to evaluation. Judge Mancuso agreed.

John Watkins, Attorney, Nevada Attorneys for Criminal Justice, gave a brief background. Mr. Watkins stated that his office handles DUI cases exclusively. He has practiced law for 20 years, started as a district court law clerk, went to the district attorney’s office, then into private practice. He iterated that he has in been involved in approximately 5000 DUI cases as an attorney. Mr. Watkins noted that he has filed cases with the United States Supreme Court and has argued 67 times before the Nevada Supreme Court.

Mr. Watkins testified that he opposed A.B. 407 because this bill does not do anything but harm the citizens of Nevada. He suggested why have a bill when the judges already accomplish the goals of this bill. Mr. Watkins focused on the impact of the number of court appearances in the paperwork. He emphasized, for example, an individual is found guilty or pleads to first-offense DUI, then finds out what the sentence is, and decides to enter a motion to withdraw the plea. Now appeals become involved and it could become an economic nightmare for the courts. The courts would become overburdened. He reiterated this law is now working.

David S. Gibson, Lobbyist, Clark County Public Defender, concurred with the judges’ testimonies.

John C. Morrow, Lobbyist, Washoe County Public Defender, stated that basically they have a resource problem, and are strained to the breaking point with the attorney staff, with court appearances and preparations for trials, and murder cases. This bill would create more ineffective assistance-of-counsel claims down the road for many cases, above and beyond the DUI arena. Mr. Morrow stressed that the reviews required would create additional court appearances and summary of evaluation. Then these programs would have to be reviewed by the courts which would add an additional strain on the Washoe County Public Defender’s Office as much as it does to the court. He said the lines outside the court are long now, and with this bill it would just make them longer. It does not mean money into the system’s account. Mr. Morrow believed the way the law is structured now has the check and balances as needed.

Senator Care asked if it was true that a first-time offender has driven at least 200 times while intoxicated. Mr. Morrow answered that he had heard those same statistics and does not have any grounds to validate or refute the statement.

Mr. Gibson stated that the Justice of the Peace in Laughlin, has approximately several hundred DUI cases a year. They are forced, in most cases, to have the evaluations done in Arizona because the person who normally does them is not available on a regular basis. It has been known that people would have to return to court on several occasions before they could be sentenced. Mr. Gibson said there is a problem in getting the evaluation reports after they have been completed.

Chairman O’Donnell stated, if you had your choice would you rather have this bill or the second-offense booting bill. Mr. Gibson answered, neither one. He does not feel this is a practical matter, at this point in time.

Senator Jacobsen asked Mr. Gibson to explain what information a DUI traffic ticket contain. Mr. Gibson said generally a ticket is written just like a citation; the name, the address, operation of motor vehicle information, license number and the registered owner’s name. Under the violation would be written what had occurred, which would show up in a complaint as well, where they would have to allege that it happened in whatever county it is in, and a cause of action showing the BAC level. Senator Jacobsen asked if the officer were present at the hearing. Mr. Gibson maintained that on the first appearance usually the officer is not present when the person has to enter a plea. The officer would show up when it has been set for trial or for preliminary hearing.

Chairman O’Donnell closed the hearing on A.B. 407.

There being no further business, the hearing was adjourned at 3:45 p.m.

RESPECTFULLY SUBMITTED:

Joan Moseid,

Committee Secretary

APPROVED BY:

Senator William R. O'Donnell, Chairman

DATE: