AB106

Assembly Bill No. 106–Committee on Judiciary

CHAPTER..........

AN ACT relating to traffic laws; revising the penalty for driving under the influence of intoxicating liquor or a controlled or prohibited substance; revising the qualifications of a person who may apply to the court to undergo a program of treatment for alcoholism or drug abuse; 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. 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 community service while dressed in

distinctive garb that identifies him as having violated the provisions

of NRS 484.379;

(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 shall:

(1) 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) Fine him not less than $750 nor more than $1,000[;

(3) Order him to perform not less than 100 hours, but not

more than 200 hours, of community service 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)] , or order him to perform an equivalent number of

hours of community service while dressed in distinctive garb that

identifies him as having violated the provisions of NRS 484.379;

and

(3) 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 subsection is guilty of a misdemeanor.

a 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) 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:

(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:

(1) A violation of NRS 484.379 or 484.3795;

(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

(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).] subparagraph (1) or (2).

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

of 1 day, or has performed or will perform [48] 24 hours of

community service.

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

the same 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 484.3794 is hereby amended to read as follows:

484.3794 1. Except as otherwise provided in subsection 2, a

person who is found guilty of a second violation of NRS 484.379

within 7 years 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 1 year if:

(a) He 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 costs of the treatment to the extent of

his financial resources; and

5 days, and if required pursuant to NRS 484.3792, has performed or

will perform not less than [50 hours, but not more than 100 hours,]

one-half of the hours of community service.

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

the same 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 matter. 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.

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 determines that an application for treatment

should be granted, the court shall: