AB315_EN

Assembly Bill No. 315–Assemblymen Parks, Manendo, Arberry, Gibbons, Ohrenschall, Anderson, Bache, Beers, Buckley, Chowning, Claborn, Collins, de Braga, Freeman, Giunchigliani, Goldwater, Hettrick, Koivisto, Lee, Leslie, McClain, Mortenson, Neighbors, Oceguera, Perkins, Price, Smith and Williams

CHAPTER..........

AN ACT relating to traffic laws; requiring an offender convicted of a first offense of driving under the influence of intoxicating liquor or a controlled substance to attend a program of treatment for the abuse of alcohol or drugs when the concentration of alcohol in the blood or breath of the offender is 0.18 or more; providing a penalty; and providing other matters properly relating thereto.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. NRS 484.3792 is hereby amended to read as follows:

484.3792 1. [A] Unless a greater penalty is provided pursuant to

NRS 484.3795, a person who violates the provisions of NRS 484.379:

(a) For the first offense within 7 years, is guilty of a misdemeanor.

Unless he is allowed to undergo treatment as provided in NRS 484.37937,

the court shall:

(1) Except as otherwise provided in subparagraph (4) or subsection

6, order him to pay tuition for an educational course on the abuse of

alcohol and controlled substances approved by the department and

complete the course within the time specified in the order, and the court

shall notify the department if he fails to complete the course within the

specified time;

(2) Unless the sentence is reduced pursuant to NRS 484.37937,

sentence him to imprisonment for not less than 2 days nor more than 6

months in jail, or to perform not less than 48 hours, but not more than 96

hours, of work for the community while dressed in distinctive garb that

identifies him as having violated the provisions of NRS 484.379; [and]

(3) Fine him not less than $400 nor more than $1,000 [.] ; and

(4) If he is found to have a concentration of alcohol of 0.18 or more

in his blood or breath, order him to attend a program of treatment for

the abuse of alcohol or drugs pursuant to the provisions of NRS

484.37945.

(b) For a second offense within 7 years, is guilty of a misdemeanor.

Unless the sentence is reduced pursuant to NRS 484.3794, the court:

(1) Shall sentence him to:

(I) Imprisonment for not less than 10 days nor more than 6 months

in jail; or

(II) Residential confinement for not less than 10 days nor more

than 6 months, in the manner provided in NRS 4.376 to 4.3766, inclusive,

or 5.0755 to 5.078, inclusive;

(2) Shall fine him not less than $750 nor more than $1,000;

(3) Shall order him to perform not less than 100 hours, but not more

than 200 hours, of work for the community while dressed in distinctive

garb that identifies him as having violated the provisions of NRS 484.379,

unless the court finds that extenuating circumstances exist; and

(4) May order him to attend a program of treatment for the abuse of

alcohol or drugs pursuant to the provisions of NRS 484.37945.

A person who willfully fails or refuses to complete successfully a term of

residential confinement or a program of treatment ordered pursuant to this

[paragraph] subsection is guilty of a misdemeanor.

category B felony and shall be punished by imprisonment in the state

prison for a minimum term of not less than 1 year and a maximum term of

not more than 6 years, and shall be further punished by a fine of not less

than $2,000 nor more than $5,000. An offender so imprisoned must,

insofar as practicable, be segregated from offenders whose crimes were

violent and, insofar as practicable, be assigned to an institution or facility

of minimum security.

2. An offense that occurred within 7 years immediately preceding the

date of the principal offense or after the principal offense constitutes a

prior offense for the purposes of this section when evidenced by a

conviction, without regard to the sequence of the offenses and convictions.

The facts concerning a prior offense must be alleged in the complaint,

indictment or information, must not be read to the jury or proved at trial

but must be proved at the time of sentencing and, if the principal offense is

alleged to be a felony, must also be shown at the preliminary examination

or presented to the grand jury.

3. A person convicted of violating the provisions of NRS 484.379

must not be released on probation, and a sentence imposed for violating

those provisions must not be suspended except, as provided in NRS 4.373,

5.055, 484.37937 and 484.3794, that portion of the sentence imposed that

exceeds the mandatory minimum. A prosecuting attorney shall not dismiss

a charge of violating the provisions of NRS 484.379 in exchange for a plea

of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for

any other reason unless he knows or it is obvious that the charge is not

supported by probable cause or cannot be proved at the time of trial.

4. A term of confinement imposed pursuant to the provisions of this

section may be served intermittently at the discretion of the judge or

justice of the peace, except that a person who is convicted of a second or

subsequent offense within 7 years must be confined for at least one

segment of not less than 48 consecutive hours. This discretion must be

exercised after considering all the circumstances surrounding the offense,

and the family and employment of the offender, but any sentence of 30

days or less must be served within 6 months after the date of conviction or,

if the offender was sentenced pursuant to NRS 484.37937 or 484.3794 and

the suspension of his sentence was revoked, within 6 months after the date

of revocation. Any time for which the offender is confined must consist of

not less than 24 consecutive hours.

5. Jail sentences simultaneously imposed pursuant to this section and

NRS 482.456, 483.560 or 485.330 must run consecutively.

6. If the person who violated the provisions of NRS 484.379 possesses

a driver’s license issued by a state other than the State of Nevada and does

not reside in the State of Nevada, in carrying out the provisions of

subparagraph (1) of paragraph (a) [or (b)] of subsection 1, the court shall:

(a) Order the person to pay tuition for and submit evidence of

completion of an educational course on the abuse of alcohol and controlled

substances approved by a governmental agency of the state of his residence

within the time specified in the order; or

(b) Order him to complete an educational course by correspondence on

the abuse of alcohol and controlled substances approved by the department

within the time specified in the order,

and the court shall notify the department if the person fails to complete the

assigned course within the specified time.

7. If the defendant was transporting a person who is less than 15 years

of age in the motor vehicle at the time of the violation, the court shall

consider that fact as an aggravating factor in determining the sentence of

the defendant.

8. As used in this section, unless the context otherwise requires [,

“offense”] :

(a) “Concentration of alcohol of 0.18 or more in his blood or breath”

means 0.18 gram or more of alcohol per 100 milliliters of the blood of a

person or per 210 liters of his breath.

(b) ”Offense” means:

[(a)] (1) A violation of NRS 484.379 or 484.3795;

[(b)] (2) A homicide resulting from driving or being in actual physical

control of a vehicle while under the influence of intoxicating liquor or a

controlled substance or resulting from any other conduct prohibited by

NRS 484.379 or 484.3795; or

[(c)] (3) A violation of a law of any other jurisdiction that prohibits the

same or similar conduct as set forth in paragraph (a) or (b).

Sec. 2. NRS 484.37937 is hereby amended to read as follows:

484.37937 1. Except as otherwise provided in subsection 2, a person

who is found guilty of a first violation of NRS 484.379 , other than a

person who is found to have a concentration of alcohol of 0.18 or more

in his blood or breath, may, at that time or any time before he is

sentenced, apply to the court to undergo a program of treatment for

alcoholism or drug abuse which is certified by the health division of the

department of human resources for at least 6 months. The court shall

authorize that treatment if:

(a) The person is diagnosed as an alcoholic or abuser of drugs by:

(1) An alcohol and drug abuse counselor who is licensed or certified

pursuant to chapter 641C of NRS to make that diagnosis; or

(2) A physician who is certified to make that diagnosis by the board

of medical examiners;

(b) He agrees to pay the cost of the treatment to the extent of his

financial resources; and

or has performed or will perform 48 hours of work for the community.

2. A person may not apply to the court to undergo a program of

treatment pursuant to subsection 1 if, within the immediately preceding 7

years, he has been found guilty of:

(a) A violation of NRS 484.3795;

(b) A homicide resulting from driving or being in actual physical

control of a vehicle while under the influence of intoxicating liquor or a

controlled substance or resulting from any other conduct prohibited by

NRS 484.379 or 484.3795; or

or similar conduct as set forth in paragraph (a) or (b).

3. For the purposes of subsection 1, a violation of a law of any other

jurisdiction that prohibits the same or similar conduct as NRS 484.379

constitutes a violation of NRS 484.379.

4. A prosecuting attorney may, within 10 days after receiving notice of

an application for treatment pursuant to this section, request a hearing on

the question of whether the offender is eligible to undergo a program of

treatment for alcoholism or drug abuse. The court shall order a hearing on

the application upon the request of the prosecuting attorney or may order a

hearing on its own motion. The hearing must be limited to the question of

whether the offender is eligible to undergo such a program of treatment.

5. At the hearing on the application for treatment, the prosecuting

attorney may present the court with any relevant evidence on the matter. If

a hearing is not held, the court shall decide the matter upon affidavits and

other information before the court.

6. If the court grants an application for treatment, the court shall:

(a) Immediately sentence the offender and enter judgment accordingly.

(b) Suspend the sentence of the offender for not more than 3 years upon

the condition that the offender be accepted for treatment by a treatment

facility, that he complete the treatment satisfactorily and that he comply

with any other condition ordered by the court.

(1) If he is accepted for treatment by such a facility, he may be placed

under the supervision of the facility for a period not to exceed 3 years and

during treatment he may be confined in an institution or, at the discretion

of the facility, released for treatment or supervised aftercare in the

community.

(2) If he is not accepted for treatment by such a facility or he fails to

complete the treatment satisfactorily, he shall serve the sentence imposed

by the court. Any sentence of imprisonment must be reduced by a time

equal to that which he served before beginning treatment.

(3) If he completes the treatment satisfactorily, his sentence will be

reduced to a term of imprisonment which is no longer than that provided

for the offense in paragraph (c) of subsection 1 and a fine of not more than

the minimum fine provided for the offense in NRS 484.3792, but the

conviction must remain on his record of criminal history.

7. The court shall administer the program of treatment pursuant to the

procedures provided in NRS 458.320 and 458.330, except that the court:

(a) Shall not defer the sentence, set aside the conviction or impose

conditions upon the election of treatment except as otherwise provided in

this section.

(b) May immediately revoke the suspension of sentence for a violation

of any condition of the suspension.

8. The court shall notify the department, on a form approved by the

department, upon granting the application of the offender for treatment

and his failure to be accepted for or complete treatment.

Sec. 3. NRS 484.37945 is hereby amended to read as follows:

484.37945 1. When a program of treatment is ordered pursuant to

paragraph (a) or (b) of subsection 1 of NRS 484.3792, the court shall

place

the offender under the clinical supervision of a treatment facility for

treatment for not less than 30 days nor more than 6 months, in accordance

with the report submitted to the court pursuant to subsection 3, 4 or 5 of

NRS 484.37943. The court may:

(a) Order the offender confined in a treatment facility, then release the

offender for supervised aftercare in the community; or

(b) Release the offender for treatment in the community,

for the period of supervision ordered by the court.

2. The court shall:

(a) Require the treatment facility to submit monthly progress reports on

the treatment of an offender pursuant to this section; and

(b) Order the offender, to the extent of his financial resources, to pay

any charges for his treatment pursuant to this section. If the offender does

not have the financial resources to pay all those charges, the court shall, to

the extent possible, arrange for the offender to obtain his treatment from a

treatment facility that receives a sufficient amount of federal or state

money to offset the remainder of the charges.

3. A treatment facility is not liable for any damages to person or

property caused by a person who:

(a) Drives, operates or is in actual physical control of a vehicle or a

vessel under power or sail while under the influence of intoxicating liquor

or a controlled substance; or

(b) Engages in any other conduct prohibited by NRS 484.379,

484.3795, subsection 2 of NRS 488.400, NRS 488.410 or 488.420 or a law

of any other jurisdiction that prohibits the same or similar conduct,

after the treatment facility has certified to his successful completion of a

program of treatment ordered pursuant to paragraph (a) or (b) of

subsection 1 of NRS 484.3792.

Sec. 4. The amendatory provisions of this act do not apply to offenses

committed before October 1, 2001.

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