MINUTES OF THE

SENATE Committee on Judiciary

 

Seventy-First Session

March 8, 2001

 

 

The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:45 a.m., on Thursday, March 8, 2001, 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 Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

 

STAFF MEMBERS PRESENT:

 

Bradley A. Wilkinson, Committee Counsel

Allison Combs, Committee Policy Analyst

Ann Bednarski, Committee Secretary

 

OTHERS PRESENT:

 

Gemma Greene Waldron, Lobbyist, Washoe County District Attorney’s Office

David Kinamon, Detective, Police Department, City of Reno

Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association

Susan R. Krisko, Deputy District Attorney, Clark County District Attorney

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

K. Neena Laxalt, Lobbyist, City of Sparks

Nancy Hart, Deputy Attorney General, Civil Division, Office of the Attorney General

Susan J. Meuschke, Lobbyist, Executive Director, Nevada Network Against Domestic Violence

 

BILL DRAFT REQUEST 7-634:  Authorize formation of professional corporations by multiple disciplines.  (Later introduced at Senate Bill 301.)

 

Senator James informed the committee that Bill Draft Request (BDR) 7-634, from the State Board of Architecture, Interior Design and Residential Design needs to be considered for introduction.

 

SENATOR MCGINNESS MOVED TO INTRODUCE BDR 7-634.

 

SENATOR WIENER SECONDED THE MOTION.

 

THE MOTION CARRIED.  (SENATOR TITUS WAS ABSENT FOR THE VOTE.)

 

*****

 

Senator James opened the hearing on Senate Bill (S.B.) 204. 

 

SENATE BILL 204:  Revises definition of “manufacture” of substance.  (BDR 40‑470)

 

Gemma Greene Waldron, Lobbyist, Washoe County District Attorney’s Office, said the Washoe County District Attorney’s office requested S.B. 204 after an individual was investigated, arrested, and partially prosecuted for manufacturing a methamphetamine.  She explained the case was dismissed after the defendant’s attorney filed a writ of habeas corpus based on the language of Nevada Revised Statutes (NRS) 453.091.  Continuing her explanation, Mrs. Waldron said the district attorney’s office is requesting the removal of the language in NRS 453.091, section 2, that reads, “the preparation or compounding of a substance by a person for his own use or . . . ”

 

Mrs. Waldron stated it was determined by a district court judge in Washoe County the accused was not “cooking” enough methamphetamine for the purpose of sales.  She said the judge concluded the accused was only making enough for his personal use and dismissed the case on those grounds. 

 

Mrs. Waldron explained to the committee there is a proposed amendment handout, “Proposed Amendments by the District Attorneys’ Association” (Exhibit C) to S.B. 204, that would add the word “pharmacist” to the list of individuals exempt under the manufacturing statute.

 

Senator Wiener asked whether there is a definition of what is considered a substance.  Mrs. Waldron replied the legislation refers to a controlled substance, which comes from the federal definition.  David Kinamon, Detective, Police Department, City of Reno, expanding on Mrs. Waldron’s answer, said the federal government has five “schedules” that define controlled substances.  He said the schedules are based on the level of possible addiction to the substance.

 

Mr. Kinamon explained the case Mrs. Waldron referred to started in June 1999.  He said he had received information indicating the suspect was manufacturing methamphetamine at his residence.  He added, over the next 4 months, another detective and he conducted an investigation of the case.  Continuing his description, Mr. Kinamon said, on October 27, 1999, the detectives had gathered enough information to request a search warrant of the suspect’s residence. 

 

Mr. Kinamon further explained he and his partner received information that the suspect had performed a “methamphetamine cook” in his residence on October 26, 1999.  He said the information he received indicated the effort to produce methamphetamine had not been successful, so the suspect was preparing to try producing methamphetamine again.  Mr. Kinamon said he and his partner met with Mrs. Waldron of the Washoe County District Attorney’s office and later met with a judge to obtain the search warrant.  He said the police department then proceeded to execute the search warrant.  The search of the suspect’s residence included narcotics detectives, fire department personnel, health department personnel, and Regional Emergency Medical Service Authority (REMSA) personnel, he added. 

 

Mr. Kinamon noted that health department personnel usually attend to help dismantle the methamphetamine lab.  He explained, because of the possibility of toxic fumes or explosions with these kinds of labs, police personnel are required to have fire department personnel and emergency medical personnel on hand. 

 

Mr. Kinamon said it took the police and health department personnel approximately 5 hours to dismantle the methamphetamine lab.  He commented, during the search of the suspect’s residence, police personnel found most of the chemicals required to produce methamphetamine.  He noted the chemicals were found in the basement of the house, in the vehicle stored in the garage, and in trashcans behind the residence.  However, Mr. Kinamon commented, the officers did not find any packaging material to indicate the suspect was preparing the methamphetamine for sale, and they did not find any sales records. 

 

Mr. Kinamon stated, when initially interviewed, the suspect indicated he was performing three to four “cooks” per week and was producing three or four grams of methamphetamine per “cook.”  Mr. Kinamon pointed out that four cooks per week, producing three to four grams of methamphetamine each, would equal about one‑half ounce a week.  He commented, in his view, one-half ounce a week was more than any one person could use.

 

Mr. Kinamon stated the production of one pound of methamphetamine leaves about five gallons of toxic chemical waste.  Mr. Kinamon emphasized the officers found waste products left from the manufacture of methamphetamine in the trash.  He explained the wastes found at the suspect’s residence included gasoline, antifreeze, Coleman fuel, Red Double Lye, muriatic acid, red phosphorous, white fuels, and coffee filters.

 

Mr. Kinamon said, during the preliminary hearing, he was questioned by the defense attorney, who referenced the personal use issue.  He explained his testimony was that a three- to four-ounce “cook” would be for personal use, but he added, three to four ounces multiplied by three or four times a week would exceed the personal use amount.

 

Senator Care asked whether the requested change in the law meant anyone manufacturing controlled substances would be in violation of the law.  Mrs. Waldron said, “Yes, that is our intent.” 

 

Senator Care stated the language of the law referred to in this bill comes from The National Conference of Commissioners on Uniform State Laws, and the schedules come from annual conferences of the uniform law commissioners.  The Senator noted that states have the option of adopting the language from these conferences as presented, or changing the language and then adopting them as legislation.  Senator Care said he assumed every state had adopted this act in some form.  He asked whether other states have adopted this act without the current language on this issue or have deleted the language after adoption.  Mrs. Waldron replied she did not know whether other states had deleted this language.

 

Mrs. Waldron said the district attorney’s office recognized, from the case documented by Mr. Kinamon, that this proposed language for deletion is a major loophole in the legislation.  She stated that the object of removing the language from the statute is to prevent other manufacturers of controlled substances from using this language as a possible means to escape punishment. 

 

Mrs. Waldron called attention to the fact during the dismantling of the lab there was heavy visitor traffic to the suspect’s home, which could indicate the suspect was dealing drugs.  However, she continued, the packaging material for selling methamphetamine were not found in or around the suspect’s residence. 

 

Senator James said his office had performed the research on the language in question.  The results, he added, were that 21 states retained the exemption for an individual’s own use, and 24 states and the federal government adopted a version of the legislation without an exemption for an individual’s use.

 

Senator McGinness inquired as to why this language is included in the statutes.  Mrs. Waldron replied she did not know why this language is included in the statute.  She remarked this language might have come from a time when people were manufacturing their own pharmaceuticals.  However, in this day and age of modern pharmaceuticals, she said, the district attorney’s office believes this language should be removed. 

 

Senator McGinness asked whether there could be an incident in which an individual would be manufacturing a controlled substance for medical reasons, rather than for illegal sales.  Mrs. Waldron replied she could think of a time when an individual who was not licensed could legally manufacture a controlled substance for his or her own use. 

 

Mr. Kinamon said it is his understanding there is no medical purpose for the use of methamphetamine.  Senator McGinness pointed out the language states all controlled substances, not just methamphetamine. 

 

Mrs. Waldron stated the controlled substances are listed in the government schedules, and if the individual is not licensed, the individual cannot legally possess controlled substances. 

 

Senator James said the uniform act was written in 1970, and contained the language as it appears in the current Nevada statute.  He pointed out no debates or discussions on this language were found when his staff researched this issue. 

 

Senator Care asked whether, in light of the recently passed legislation in regard to physicians’ assistants, “physician’s assistant” should be added to this bill, along with “pharmacist.”  Mrs. Waldron replied that the Nevada District Attorneys’ Association noticed that “pharmacist” was not included in the list of exempt persons and she believed pharmacists would handle controlled substances more often than anyone else would.  

 

Senator Wiener asked whether there is a problem with changing the language to read “controlled substance” instead of just “substance” to clarify the intent of the legislation.  Mrs. Waldron replied a change like that would need to be examined by the legal staff.  She said the NRS include a description of manufacturing which says “ . . . by extraction from substances of natural origin, or independently by means of chemical syntheses, or by a combination of extraction and chemical synthesis . . . ”

 

Senator Wiener said herbal remedies are natural in origin and this legislation could make someone who is manufacturing a home remedy a criminal.  Mrs. Waldron said she did not believe any herbal remedy could be manufactured into a controlled substance.  Senator Wiener stated that was her point in suggesting the language be changed to read “controlled substance” instead of just “substance.”  Bradley A. Wilkinson, Principal Deputy Legislative Counsel, Legal Division, Legislative Counsel Bureau, responded that crime of manufacturing a controlled substance should be used in conjunction with the crime description, which is NRS 453.322.  Mr. Wilkinson said NRS 453.322 says, “Offer, attempt or commission of unauthorized act relating to manufacture or compounding of certain controlled substances . . .”  He explained this definition of the crime of manufacturing makes it unnecessary to change substance to controlled substance in S.B. 204. 

 

Senator James, referring to page 4 of a letter from Richard A. Gammick, Washoe County District Attorney (Exhibit D), said the opinion of the district court judge after the preliminary hearing states the following:

 

At the preliminary examination, there was no evidence, or reasonable inferences therefrom, that the manufacture of the controlled substance in this case was not for personal use.  To the contrary, the opinion testimony of Detective David Kinamon, the circumstances at the time of the search of petitioner’s residence and the statement of the petitioner were all consistent with the conclusion that the manufacture was for personal use.

 

Senator James emphasized, after listening to the testimony at this meeting, “I would like to know how someone could come to that conclusion.”  The senator pointed out Mr. Kinamon had testified there was a large apparatus that took hours to dismantle, a large amount of trash, and other items that are associated with “cooking up” a half ounce of methamphetamine a week.  Mr. Kinamon also testified the amounts being made are more than one person would be able to consume in a week’s time, he added.  Senator James said after hearing the evidence presented to this committee, he would like to know why the “writ” judge did not think there were reasonable inferences the suspect was creating methamphetamine for sale, especially in the amounts Mr. Kinamon said were being produced. 

 

Senator James inquired whether the conclusion was based on the fact there were no written documents that said, “I am selling this to so and so and he owes me this much money.”  Mr. Kinamon responded, the question asked during the preliminary hearing was asked as a direct question.  He said the question was worded something like, “How much did the suspect produce in a batch?”  Mr. Kinamon stated the response, of course, was three to four grams, which could be for personal use.  He pointed out the suspect cooked three to four times a week, however, and had been doing so for a long time, as was obvious by the amount of trash found during the search. 

 

Mr. Kinamon explained he was unable to expand, on direct questioning.  Senator James asked, “Why not?”  Mrs. Waldron responded she did not conduct the preliminary hearing, so she was unaware of the reasoning preventing Mr. Kinamon from expanding on the direct question.  She said the district attorney’s office had not encountered a problem with this language, and did not realize it could be an impediment towards prosecuting a suspect for the manufacture of a controlled substance. 

 

Senator James commented this law has been around for 31 years and wondered whether the district attorney’s office is requesting to amend the law because of one case in a preliminary hearing.  He continued, stating, for whatever reason, the evidence pointed toward the fact that the suspect was manufacturing methamphetamine beyond just personal use, and no one was arguing the suspect was not guilty of manufacturing a controlled substance for sale.  The senator wondered whether, by changing this language, it would be possible to prosecute individuals the original law did not intend to “make felons.”  Mrs. Waldron replied she could not think of anyone without a license who would be producing a substance that would come under this law. 

 

Senator James asked whether there were any other cases that have been thrown out because of the personal-use exemption.  Mrs. Waldron replied she was not aware of any. 

 

Senator James commented that, so far, this seems to be the only case.  He said Exhibit D goes on to say the judge would ordinarily bind over for trial a case in which personal use is an issue; but in this case, the judge believed it should not be submitted to a jury because the evidence was so scant it would leave the jury speculating or conjecturing as to the defendant’s guilt.  Continuing, Senator James said the judge probably would not have come to the same conclusion, if he had heard the evidence submitted to this judiciary committee. 

 

Mrs. Waldron commented the judge, for the writ hearing, has only the preliminary hearing transcript in front of him.  Senator James reiterated if the preliminary hearing had documented all of the information the judiciary committee has heard, he does not believe the judge would have concluded the suspect was only producing the substance for his own use.  Mr. Kinamon replied he agreed with the senator, and further stated not all of the information is brought out in a preliminary hearing.  He commented, in the preliminary hearing, the prosecutor imparts only enough information to show probable cause. 

 

Senator James asked whether there were any other cases which had attempted to raise the personal-use issue.  Mr. Kinamon replied, so far, this is the only case he is aware of.  For most cases, he further explained, the officers locate packaging materials or other evidence that indicates the manufacturing of a controlled substance for sale.  

 

Mr. Kinamon explained, since this case, the officers doing searches of suspects’ premise spend more time on details to ensure they find all of the available evidence.  He stated, before this case, the narcotics unit officers were not aware this loophole would be an impediment to prosecuting cases. 

 

Senator James asked whether the narcotics unit is able to shut down illegal manufacturing, with the law as it stands.  Mr. Kinamon replied, as far as he knows, the police department has not had any more problems in Washoe County.

 

Senator Care asked, if the suspect was manufacturing methamphetamine for his personal use, is there a reason to change the language in this law as a matter of public policy.  Mrs. Waldron replied the district attorney’s office still wants to have the language removed.  She said, without the existing language, the suspect would have been prosecuted for the possession of a controlled substance.  Mr. Kinamon stated, unless a controlled substance is actually found, the suspect cannot be arrested for possession of a controlled substance.  Mrs. Waldron said, if the methamphetamine is not yet ready, the police officers can still arrest the suspect because he has possession of a major portion of the ingredients used in the manufacturing of methamphetamine. 

 

Senator James asked what amount of a controlled substance is considered enough for a trafficking charge.  Mr. Kinamon replied, for methamphetamine and cocaine, it would be 0 to 4 grams for personal possession, 4 to 14 grams for level-one trafficking, 14 to 28 grams for level-two trafficking, and 28 grams or more for level-three trafficking. 

 

Senator McGinness asked whether other defense attorneys have tried to use this loophole since this case became known.  Mrs. Waldron commented the defense attorney who used this defense was a former attorney in the Washoe County District Attorney’s Office.  She said the narcotics unit also has changed the way it conducts a search of a suspect’s premises and looks especially for evidence of sales.  Mrs. Waldron pointed out there could easily be other cases similar to this one, and if the traffickers are smart they will make only small batches of a controlled substance, not maintain accounting books, and keep no evidence of packaging.  This could result in a thriving business that could not be prosecuted, as this law stands now, she added. 

 

Senator McGinness explained the committee did not want to let traffickers of controlled substances go unpunished, but by the same respect, the committee also did not want to imprison individuals the law did not originally intend to imprison.  He explained, in large communities, there are courts just for drugs, and these courts use a diversionary program to help these individuals keep their jobs and stay with their families.  However, he continued, rural Nevada does not have drug court, and, if arrested and found guilty, these individuals go to jail.  Mrs. Waldron replied she did not know how many individuals are manufacturing for personal use, but she believed most manufacturers are manufacturing controlled substances for income. 

 

Mr. Kinamon explained, when dealing with manufacturers of controlled substances, there are usually one or two people who produce the product.  He said the manufacturer will generally employ four or five other people to do various jobs related to the manufacturing, such as purchasing supplies.  Mr. Kinamon continued to explain, saying, when the product is complete, part of the product is used to pay the hired assistants.  He said one of the reasons for doing business in this manner is to avoid having “pay-out” sheets.  Mr. Kinamon said the prosecution has to prove the suspect has a major portion of the ingredients for producing the product, and if several people are making the purchases and holding the ingredients at different locations, it is harder to prove the suspect is manufacturing a controlled substance. 

 

Senator James asked whether the law in question is NRS 453.322, and also inquired about NRS 453.011 and NRS 453.552.  Mr. Wilkinson replied those are the general exceptions to manufacturing controlled substances authorized under the law, such as physicians, pharmacists, or laboratories. 

 

Senator James, quoted from NRS 453.322, section 1:

 

Except as authorized by the provisions of NRS 453.011 to 453.552, inclusive, it is unlawful for a person to: (a) Manufacture or compound a controlled substance other than marijuana; (b) Possess a majority of the ingredients required to manufacture or compound a controlled substance other than marijuana, unless he is at a laboratory that is licensed to store such ingredients . . .

 

Senator James asked why the narcotics unit and the district attorney’s office did not prosecute the case Mr. Kinamon presented to the committee, under NRS 453.322, section 1, subsection (b).  Mr. Kinamon replied, “That provision under the law is often used to prosecute suspects.” 

 

Senator James said this is a serious felony, which carries a 3-year to 15‑year penalty.  He said everyone agrees that traffickers need to be punished.  However, he inquired, why is it the policy of the district attorney’s office not to allow individuals to manufacture small quantities of controlled substances.  Senator James pointed out he does not understand why the district attorney’s office did not present more evidence at the preliminary trial when this case was prosecuted.

 

Senator James, continuing to ponder the subject, said after the manufacture of a controlled substance, the individual in question is then guilty of a felony possession and can be prosecuted.  He said people with drug problems are not the focal point of the manufacturing law.  Those are the individuals the state wants to help, and to throw them into prison is probably not the best way to get them off drugs, he added.  Mrs. Waldron replied the experience of the narcotics officers is that no one manufactures for his or her own use.  There are always other people involved, she noted, but they may be smart enough not to have any evidence of the distribution of the controlled substance.

 

Senator James said looking at case studies gives a much more diverse description of manufacturing that includes such things as cutting and repackaging of heroin, which is considered manufacturing.  So, he pointed out, this law does not only apply to methamphetamine. 

 

Senator James said, if a person has the tools for cutting and repackaging heroin, the person could be prosecuted under the manufacturing law.  Mrs. Waldron responded, “I suppose, but then that probably would also be considered some indicia of distribution or sales.”  Senator James responded, saying the district attorneys could have prosecuted the suspect on the manufacturing statute as it stands, because those individuals are manufacturing products for sale.  

 

Addressing Mrs. Waldron and Mr. Kinamon, Senator James said, “I am sure you understand our concerns.  We want to assure ourselves that this extremely serious crime does not become visited upon someone it was not originally intended to [ensnare].” 

 

Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association, said it is interesting that, of all the years this statute has been in effect, there are people, including prominent defense attorneys, who did not know of this potential loophole.  He commented he had been a guest on a Reno television program with a prominent defense attorney, who asked to be sent a copy of S.B. 204.  He said if this bill is not passed, this statute could become a built-in defense.  But, he added, it may be a defense that could be “knocked down” most of the time. 

 

Senator James asked whether anyone had used it in Clark County.  Mr. Graham replied, “They sure will be now.”  He said this issue is now in the newspapers, and more defense attorneys are trying to use the loophole. 

 

Mr. Graham explained in Senator McGinness’s district there are probably a lot of places where the police force does not care whether a methamphetamine lab blows up and kills the “bad guy.”  He stated there seems to be an epidemic of methamphetamine labs.  When one is found with toxic materials, the narcotics units have to bring people in with masks and gloves, and the neighborhood has to be evacuated.  Mr. Graham emphasized, “These people are not amateur chemists stirring up rosemary and thyme.  These are bad people manufacturing controlled substances in the garage next to you.” 

 

Mr. Graham reiterated this statute is a built-in defense.  He said, from now on, anyone caught for any of these offenses is going to try to use this statute.  He stated, no one is supposed to manufacture these controlled substances to “poke up his nose,” or to swallow, or to use in any way. 

 

Senator James pointed out there are many laws, other than just this one section of a statute, that enable the police to shut down the manufacturers.  Mr. Graham asked whether the committee wants manufacturers to have this built-in defense.  Senator James responded there are other crimes involved in manufacturing a controlled substance, such as a highly dangerous activity in a residential area, along with many local ordinances that can be used to prosecute manufacturers of controlled substances. 

 

Mr. Graham stated, if S.B. 204 is not passed, there will be a lot of people who will believe they can get away with this crime by claiming it is for personal use. 

 

Senator James asked whether more than one case in Clark County had succeeded using this defense.  Mr. Graham replied, “Not that I am aware of.”  He further stated, if this bill is not passed, it could tie up the whole process.  Senator James commented he is not asking about the process, he just wants the background.  The Senator reiterated he just wants to know whether there had been more than one case that had succeeded by using this defense.  Mr. Graham stated he is not aware of any at the moment, but he could bet there will be many of these defenses raised, and the district attorneys will have to “knock them down.” 

 

Senator James asked whether Mr. Graham could guarantee that no one who is not running a methamphetamine lab to sell the drug will be prosecuted for concocting something that is truly for personal use.  Mr. Graham stated if the “concoction” in question is an illegal, controlled substance, no one has any reason to be manufacturing it.  Senator James replied under the current law that is not true.  The senator reiterated his question whether Mr. Graham could guarantee this will not happen.  Mr. Graham replied, “No, I can’t say that, because this is what everybody is going to say.” 

 

Senator James asked, if the legislature removed the personal use section, could Mr. Graham guarantee an individual who is not running a methamphetamine lab would not be imprisoned under this law.  Mr. Graham said, if someone is manufacturing a controlled substance, even a small amount for personal use, the person should still be prosecuted. 

 

Senator James said other things are manufactured, besides methamphetamines, and the committee cannot focus on just one case.  He asked whether this bill deals with the growing of marijuana.  Mr. Graham responded, “No, it does not.” 

 

Senator James closed the hearing on S.B. 204 and opened the hearing on S.B. 263.

 

SENATE BILL 263:  Authorizes court to sentence person convicted of misdemeanor to make donation of money to charitable or educational organization under certain circumstances.  (BDR 15-473)

 

Mr. Graham explained for a number of years in limited‑jurisdiction courts most of the individuals who come before the courts are probably guilty of relatively minor infractions.  He said jailing these people is not in their best interests, and probably not in the best interest of the state either.  Mr. Graham said frequently the court gives these individuals the opportunity to stay out of trouble for an agreed-upon time period, attend anger management classes, do community service work, or perform a combination of these options.  If the person completes the agreed-upon tasks, the case can then be dismissed and there will be no conviction on the record, he added.  Mr. Graham noted often the court would require the defendant to contribute to a charity related to the defendant’s offense. 

 

Mr. Graham explained about a year ago the Commission on Ethics said the courts could no longer require defendants to contribute to charities, because the courts are not authorized to enforce such contributions.  He stated that decision hampered the ability of the courts to resolve cases without convictions, and that is the reason for S.B. 263. 

 

Susan R. Krisko, Deputy District Attorney, Clark County District Attorney, said the district attorney’s office supports S.B. 263.  She explained, as prosecutors, the district attorneys use this tool many times.  Ms. Krisko said the ethics commission’s opinion is that judges should not be making decisions as to where the contributions should go.  She said this bill allows the defense attorney and the prosecutor to agree on where the contribution should go.

 

Ms. Krisko noted the use of charitable contributions is a diversionary tactic.  She explained, if there is no conviction, there is no fine.  Community service is often used, she said, but there are times the defendant is unable to do community service work, so the charitable contribution option could be used.  There are also times that counseling is not necessarily appropriate for the action either, so again the court would use the charitable contribution option to avoid a record for the defendant, she added.

 

Senator Wiener asked whether the contributions would be for an institution connected to the crime or whether it would be to just any charitable organization.  Ms. Krisko replied it has always been the choice of the Clark County District Attorney’s office to have a connection between the action and contribution. 

 

Senator Wiener asked how the district attorney’s office learns about the organizations that could be used in these circumstances.  Mr. Graham replied, first the organizations have to be qualifying non-profit organizations under Nevada statutes.  He explained hearings like this help people and organizations become aware of the possibility of using this option, and those organizations will seek these contributions from the courts.

 

Senator Washington commented his church often has juveniles do community service by cleaning his church or the grounds around his church.  He explained sometimes these individuals also make monetary contributions. 

 

Mr. Graham said S.B. 263 could work well in rural communities, as well as in the larger communities. 

 

K. Neena Laxalt, Lobbyist, City of Sparks, said the Sparks city attorney had four concerns regarding S.B. 263.  First, she said, there is nothing in the bill prohibiting these individuals from getting a tax break on court‑ordered contributions.  Ms. Laxalt said the second concern is paying a charity instead of a fine takes money from the city, money which pays for the courts and the police department.  Continuing, she said the third concern is individuals who are more prosperous than others can avoid a record, while persons who are unable to afford the contribution would end up serving time and creating a police record.  Ms. Laxalt related the final concern by saying there is a potential for abuse of this option.  She said judges could make deals to return funds to charities which have contributed to their election fund. 

 

Judy Jacoboni, Lobbyist, Mothers Against Drunk Driving (MADD), Lyon County Chapter, said she wanted to add her support for this bill.  She said she did not want the committee to think her organization would be standing with their hands out waiting for funds.  She stated, as far as she knew, her chapter has never been the recipient of any court-ordered donations.  Ms. Jacoboni stated her organization did not really need them, and driving under the influence of a controlled substance (DUI), to her knowledge, is not an offense that can be deferred by the use of the option offered in S.B. 263.  Ms. Jacoboni emphasized, if a person is convicted of drunk driving, the person should be punished as a drunk driver and not be allowed to defer his or her criminal record.  She said it is her understanding of S.B. 263 that judges have the discretion of requiring community service work and a donation would be an agreement between the prosecutor and the defense attorney.

 

Senator Care asked whether Ms. Jacoboni is aware of any court-ordered donations.  Ms. Jacoboni replied the only contact the Lyon County Chapter of MADD has had with court-ordered activities is two individuals who were ordered to work with MADD on public education issues.  She reiterated she is not aware of any court-ordered donations. 

 

Senator James inquired whether the individuals Ms. Jacoboni referred to were court ordered to do community service under the existing law.  Ms. Jacoboni replied, “Yes.”

 

Senator James asked Mr. Graham to address the issues Ms. Laxalt and Ms. Jacoboni raised.  Mr. Graham replied the DUIs would not be affected.  He explained, unless the case is not provable, the district attorney’s office prosecutes all DUI cases. 

 

Mr. Graham pointed out if the City of Sparks or any other jurisdiction in the state does not want to participate in the option of charitable contributions then those entities are not required to do so.  Participation has to be a cooperative agreement between the prosecuting attorney and the defense attorney, he clarified.  Mr. Graham explained S.B. 263 is directed toward preventing criminal records, if the prosecutor feels a conviction is unnecessary.  He said in northern Nevada this diversion option is not used much because the northern courts do not have 45,000 misdemeanors in their courtrooms every year.  Mr. Graham said many cases are minor offenses or are cases where convictions are not necessary.  He emphasized these are the cases that can be diverted. 

 

Mr. Graham commented he did not understand the “charitable contribution thing.”  He said, if the charity is a qualified charitable organization and the case is a diversion instead of a conviction, he did not personally have a problem with it.  He said diverting a criminal record is not meant as punishment, it is meant as a diversion of a criminal record.  Mr. Graham stated the tax-break issue did not upset him much.  Again, the object is not punishment, he added. 

 

Mr. Graham said, regarding the discrimination of indigent individuals, if a person does not have the ability to pay, the person can do community service.  He stated, in many cases, the individual just needs to stay out of trouble and the conviction can be diverted.  Mr. Graham stated he did not see this as a discriminatory matter.  He reiterated diversion of a conviction and a criminal record is at the discretion of the prosecutor and the defense attorney, working together.

 

Ms. Krisko stated S.B. 263 would not be taking money away from the city, because you cannot fine someone who has not been convicted of a crime.  The point is for the individual not to have a criminal record, she pointed out.  Ms. Krisko explained those funds would never have gone to the city.  She said if there were a conviction then a fine could be a more appropriate resolution to the case. 

 

Mr. Graham explained part of the reason the ethics commission became involved in this practice is a municipal judge became angry with the Las Vegas city council.  He continued by saying the judge in question started ordering all the cases to contribute to charitable groups, which left no fines going into the city coffers.  Mr. Graham further explained, in order to stop all of the funds from going to charitable contributions, the city involved the ethics commission.

 

Senator James asked whether this procedure was fairly prevalent before the ethics commission determined the courts did not have the authority to order charitable contributions.  Mr. Graham answered, “Yes.” 

 

Senator James closed the hearing on S.B. 263 and opened the hearing on A.B. 107. 

 

ASSEMBLY BILL 107:  Clarifies that person convicted of battery constituting domestic violence within 7 years before or after principal offense has committed prior offense for purposes of determining penalty.  (BDR 15‑481)

 

Nancy Hart, Deputy Attorney General, Civil Division, Office of the Attorney General, said this bill was submitted on behalf of the Nevada Domestic Violence Prevention Council.  She explained, during the 1997 Legislative Session, the Legislature approved various changes to Nevada’s domestic violence laws to strengthen the state’s response to domestic violence.  Ms. Hart said one significant change was the enhanced punishments for three or more domestic battery offenses. 

 

Ms. Hart said A.B. 107 is needed to clarify what constitutes a prior offense under the current statute.  She said Nevada law currently allows counting only domestic battery offenses committed prior to the principal offense, for purposes of determining whether the offense is a misdemeanor or felony.  She explained the first or second offense is a misdemeanor and three or more offenses are felonies.  Ms. Hart further explained that problems occur when a defendant has more than one domestic battery case pending in the court system.  For example, she said, if a defendant is arrested for domestic battery in May, and again in July, and for some reason the July offense arrest proceeds to conviction first, then the May offense cannot be considered a second offense because the May offense was committed prior to the July offense and conviction. 

 

Ms. Hart explained this bill amends the domestic battery statute to resolve the problem.  She said these amendments parallel the language in the DUI law at NRS 484.3792. 

 

Ms. Hart noted, in the 1997 legislation, many of the domestic violence changes were based on the DUI laws.  She said by amending NRS 200.485 to include a definition of offense, which is similar to that contained in the DUI law, an offense would be one that occurred within the 7 years before or after the principal offense.  She said the sequence of the offenses and convictions would not matter as long as the convictions are within a 7-year period. 

 

Ms. Hart said this legislation is a very important clarification to the battery enhancement statute, which will increase batterer accountability and enhance victim safety. 

 

Ms. Hart, reading from a statement provided by Patricia Lynch, co-chairperson of the Legislative Committee of the Nevada Domestic Violence Prevention Council (Exhibit E), said Ms. Lynch could not attend the hearing, but would have testified on behalf of the prevention council to indicate the council’s support for the passing of A.B. 107.

 

Ms. Hart said Ms. Lynch is also the elected city attorney of Reno, and her office prosecutes a large number of domestic violence and stalking cases. 

 

Ms. Hart, reciting Ms. Lynch’s statement, said in 1997, the Nevada State Legislature enacted legislation which was a comprehensive domestic violence bill patterned in part after the statutory scheme for DUIs.  Continuing, she said that legislation created enhanced penalties for second and third domestic violence offenses within a 7-year period; however, it did not contain the language in section 1, subsection 3 of A.B. 107.  She said this language clarifies that all offenses within a 7-year period may be counted for enhancement purposes, regardless of when they occurred, if they are convictions. 

 

Ms. Hart, continuing to recite Ms. Lynch’s statement, read:

 

This amendment is necessary to ensure that perpetrators are held accountable for their actions and are not able to avoid the enhancement provision of our domestic violence laws.  For example, a perpetrator could batter a victim in March but fail to appear at the arraignment.  The perpetrator could then batter a victim in April and be convicted of a first-offense domestic battery on the April battery.  The perpetrator could then be tried on the March battery and be convicted again of a first offense domestic battery by arguing that the April conviction could not be used for enhancement purposes since the April offense and conviction occurred before the conviction on the March offense.  Such a result is untenable since it was the perpetrator’s conduct of failing to appear at arraignment which resulted in the March battery not being tried until after the April battery.  There may also be instances where a case could be put together on a prior domestic battery because of evidence uncovered in the investigation of a domestic battery case.  The perpetrator should not be allowed to escape the enhancement of the prior battery merely because a conviction on the case may happen after a conviction on the current batter case.

 

Ms. Hart, continuing to recite from Ms. Lynch’s statement, said the language in A.B. 107 will ensure perpetrators are held accountable for all of their domestic batteries regardless of when those offenses occur and regardless of how those offenses move through the criminal justice system.  She said this bill is really a clean-up bill that should not be controversial.  Ms. Hart stressed this bill will clarify the domestic battery statutory scheme to ensure that perpetrators receive the enhanced sentences the Legislature deemed appropriate when enacting the law.

 

Senator Care asked whether this issue has already appeared in prosecuting these cases, or whether this bill request is to guard against the possibility of this happening.  Ms. Hart replied there have been cases in several rural counties where second‑offense status could not be obtained because of the order in which the cases were tried.  She said she also is aware of cases in Washoe County where this problem exists.

 

Susan J. Meuschke, Lobbyist, Executive Director, Nevada Network Against Domestic Violence, said she supports A.B. 107 because the prosecutors have convinced her it is important.  She stated she does not understand how a person can batter another person and have each one of those batteries be a first offense.  She said she would certainly support rectifying the situation.

 

Senator James asked Ms. Hart whether the language in A.B. 107 is the same language as in NRS 484.3792, subsection 2.  Ms. Hart responded, “Absolutely.”  

 

Senator James asked why this language was not added previously, when the laws were made more responsive to domestic violence.  Ms. Hart replied she was not working for the Office of the Attorney General in 1997 and could not answer that question. 

 

Senator Care asked what happens in a case where a conviction is appealed and reversed, then followed by a second conviction.  The Senator wondered whether this situation is considered one conviction or two convictions.  Ms. Hart said she did not know the answer, but perhaps Mrs. Waldron would be able to answer the question.

 

Senator Wiener asked what happens if a case is being appealed, but has not yet been reversed when a second conviction is handed down.  She pondered what would be the enhancement judgment in this case.  Mrs. Waldron responded, if a person has been charged with a second domestic battery and the first case goes to appeal, the first is still a conviction, and the second incident would be charged as a second offense.  However, she said, if the first conviction is overturned, the second conviction would still be a second offense and would not change the sentencing until the offender is convicted on a third charge.  Then the third conviction would be reduced to a second offense, if one of the other two charges is overturned, she added.  Mrs. Waldron explained there has to be three or more battery convictions to make the charge a felony instead of a misdemeanor. 

 

Mrs. Waldron added the Nevada District Attorneys’ Association supports A.B. 107.  She explained the association would like to see this problem resolved.  Mrs. Waldron said she runs into this problem in her work fairly often, especially if the batterer has several charges within a few weeks of each other.  She noted, in some cases, the district attorney’s office has not had a chance to prosecute the first charge before the defendant has several other charges.  Mrs. Waldron emphasized the batterer could get two or three first-offense charges out of this kind of situation. 

 

Senator James closed the hearing on A.B. 107 and asked the committee if it wanted to take action on S.B. 263.  

 

SENATE BILL 263:  Authorizes court to sentence person convicted of misdemeanor to make donation of money to charitable or educational organization under certain circumstances.  (BDR 15-473)

 

            SENATOR PORTER MOVED TO DO PASS S.B. 263.

 

            SENATOR WASHINGTON SECONDED THE MOTION.

 

            THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Senator James adjourned the meeting at 10:12 a.m.

 

RESPECTFULLY SUBMITTED:

 

 

 

Johnnie L. Willis,

Committee Secretary

 

 

APPROVED BY:

 

 

                       

Senator Mark A. James, Chairman

 

 

DATE: