MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Subcommittee
Seventy-Second Session
April 3, 2003
The Committee on Judiciary Subcommittee was called to order at 7:07 p.m., on Thursday, April 3, 2003. Chairman Harry Mortenson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Harry Mortenson, Chairman
Mr. Marcus Conklin
Mr. Jason Geddes
GUEST LEGISLATORS PRESENT:
Assemblywoman Chris Giunchigliani, District No. 9, Clark County
STAFF MEMBERS PRESENT:
Danielle Christenson, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Sabina Bye, Committee Secretary
OTHERS PRESENT:
Jim Nadeau, representing Washoe County Sheriff’s Office, Reno, Nevada
Kristin Erickson, representing Nevada’s District Attorney Association and Washoe County District Attorney’s Office
Gary Booker, Chief Deputy, Vehicular Crimes Unit, Clark County District Attorney’s Office, Las Vegas, Nevada
Erin Breen, Director, Safe Communities Partnership, Las Vegas, Nevada
The Judiciary Subcommittee on Assembly Bill 362 will please come to order.
Assembly Bill 362: Revises provisions relating to driving or being in actual physical control of vehicle or operating or being in actual physical control of vessel while under influence of certain controlled substances. (BDR 43-802)
[Roll called]
We don’t have a preparation, a recapitulation [on A.B. 362]. I’m wondering if you, Ms. Giunchigliani, would be interested in opening up, telling where some of the problems are and what we should look at and discuss.
Assemblywoman Chris Giunchigliani, District No. 9, Clark County:
I think it really comes down from the testimony that there was no disagreement about the issue of blood being used. I think Mr. Geddes e-mailed me to say that it should probably read “whole blood” in order to be very clear about the testing purposes.
In the testimony, I believe, I was using the term “metabolite,” but Dr. Anderson and Mr. Berkable used “parent compound.” So some terminology regarding the compound or component in marijuana, which is the delta-9-tetrahydrocannabinol (THC), is what we want to define.
The third area is the debate on where to set the nanograms; I won’t rehash that. I think their testimony was 2 to 4, 2 to 5. I think 5 is what is in there currently for marijuana metabolite. I recommended 15 nanograms based on what the state personnel office uses to determine hiring and safety purposes for its employees. I think that’s the framework within that part of it.
The fourth issue was the rebuttable presumption. It currently only pertains in this recommendation for marijuana; it doesn’t have to; it’s just because I originally started out with the bill solely focusing on that issue, which was narrowly confined. I do believe that rebuttable presumption is probably very key to the matter and, unlike what Mr. Nelson said in the testimony yesterday, it is constitutional to have rebuttable presumption; it is unconstitutional if you don’t. I think that’s part of the challenge that could come up at some point if we don’t deal with that issue.
I think that those were the four main areas. There are other tweaking and cleanup issues, but I don’t know if this is the session to be dealing with that part of it, at least this late in the game. I recommend that [the Subcommittee] just focus on those four areas.
Chairman Mortenson:
Was there not a problem with urine testing? Wasn’t it felt that it might depend on the rate of metabolism rather than the amount of material in the blood system?
Assemblywoman Giunchigliani:
Correct. I think that’s why in the amendment we didn’t put a nanogram under “urine” column. We moved it over under “blood” and tried to title it “whole blood” on the top of the listing. The compounds that are tested in the urine are inactive. We want to go after the active compounds, which is the THC.
Chairman Mortenson:
Would the amendment remove the urine column?
Assemblywoman Giunchigliani:
It’s my recommendation, yes.
Chairman Mortenson:
That sounds reasonable from the testimony that I remember.
Would you prefer that we, for one thing, start working on amendments to this? Okay. Are there any questions for Ms. Giunchigliani from the Subcommittee?
Starting with some amendments, we remove the column that says “urine.” Is that correct?
Assemblywoman Giunchigliani:
It’s just for marijuana.
Chairman Mortenson:
That doesn’t hold for the rest of them?
Assemblywoman Giunchigliani:
If I recall the testimony, no. But I think Mr. Geddes is my expert I rely on here. “Urine” is proper for the cocaine and the other items that are listed there. It was simply for the marijuana that it was not a proper testing methodology. That’s why I think I had a line, or “not applicable,” or something along those lines in that section.
Chairman Mortenson:
I was under the impression that all of them depended upon the metabolism rate.
I believe another one is that Ms. Giunchigliani would like to substitute 15 for the 20 on the nanograms per milliliter of Phencyclidine. Is that the one? Is that the active ingredient in marijuana?
Assemblywoman Giunchigliani:
Delta-9-tetrahydrocannabinol (THC) is the one, but I would also go to Mr. Geddes’ terminology as the more appropriate terminology versus metabolite, I believe.
Chairman Mortenson:
We scratched the marijuana metabolite, and do we have that name on here that you just mentioned?
Assemblyman Geddes:
Yes. What she had done was pull it out of the chart and put it down in subsection 4, which describes it. What we were discussing was actually putting it back up in the chart but having it refer to the delta-9-THC in the chart. Instead of where it says “marijuana” and we could say the “marijuana constituent, delta-9-THC,” or something like that.
Chairman Mortenson:
Then another amendment would be to move the delta-9-THC from (g) in the chart on page 2 and put it where the marijuana is under (g).
Assemblywoman Giunchigliani:
If I might, Mr. Chairman, I think it should actually be where (h) was, I think the issue with (g) with marijuana means nothing; that’s a plant and there was nothing tied to it. I think we’d eliminate (g) and move (h) to (g) and make it “marijuana constituent, delta-9-THC.”
Assemblyman Geddes:
It could be either (g) or (h).
Chairman Mortenson:
We will change the amount to 15 nanograms.
Assemblywoman Giunchigliani:
That’s my recommendation; I’m sure there is discourse about that also. I think that is going to be the main discussion.
Chairman Mortenson:
We need to do that also, 15 nanograms per milliliter.
Then there is rebuttable presumption. What is your recommendation?
Assemblywoman Giunchigliani:
I believe it needs to be in the statute. I don’t have a problem with it if it’s made broader to allow for any argument that’s there. The reason we drafted it, actually, was because I was focusing only on the marijuana issue. Rebuttable presumption is an appropriate standard to have and it really should apply to our alcohol laws as well as this one. I’m researching and doing that on another bill. But I think it, at least, allows for an argument to be made in court and I do believe it is—I know it is—the language is very constitutional. I believe it was misrepresented in the hearing. That is for this Subcommittee to discuss. I think if you’re going to have a standard to make a determination and argue unimpairment versus impairment, rebuttable presumption allows for that argument to take place in court.
Chairman Mortenson:
“Except as otherwise provided in this subsection, it is unlawful for any person to operate or be in actual physical control of a vessel under power or sail”; that’s water, that’s the first one. Let’s go back to both rebuttable presumptions, except one is for boats and one is for cars?
Assemblywoman Giunchigliani:
Yes. They just picked up the other section that dealt with DUID (driving under the influence of drugs).
Chairman Mortenson:
“. . .unlawful for any person to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access with an amount of delta-9-tetrahydrocannabinol in his blood and that it is equal to or greater than. . .” and we’ll have “15 nanograms per milliliter.”
Assemblyman Geddes:
Are we on page 3?
Chairman Mortenson:
Page 3 of 7, yes.
Assemblyman Geddes:
Basically, once we pull the delta-9-THC portion out and put it up back into the chart, you can start in subsection 4 and scratch out the first 5 sentences and start with “for the purposes of determining whether a person has: (a) Violated the provision of the subsection; or (b) Driven or been in actual physical control of a vehicle while under the influence. . .” And then at that point you can scratch the rest of that line, lines 14, 15, 16, and line 17 though “milliliter.” So that paragraph (b) reads: “. . .while under the influence creates a rebuttable presumption of guilt.”
Chairman Mortenson:
That’s great; that’s what we’re looking for.
Assemblyman Geddes:
And scratch lines 5 through 9.
[Chairman Mortenson read the changed section again.]
Paragraph (g) on the top of page 4 disappears as well.
Chairman Mortenson:
If (g) goes does (d) also go because it refers to (g)?
Assemblyman Geddes:
Correct.
Chairman Mortenson:
So we scratch (d) on page 3, 5 lines from the bottom, the whole three lines.
Assemblyman Geddes:
Actually, it’s not all three lines, we just leave (d) as is; we just pull out the amendment that was put in referring to (g).
Chairman Mortenson:
We need to change the language, “Except as otherwise provided in paragraph (g),” which we are getting rid of.
Assemblyman Geddes:
Right; we get rid of that and it [(d)] just stays as, “Is under the influence of a controlled substance,“ which is the original language if you just pull out what was amended in.
Chairman Mortenson:
So we just remove all the italics and start with “is” and remove all the other in italics in paragraph (d), and paragraph (g) gets moved over to the charts so we eliminate (g). Then when we get to the boats we do the exact same thing again.
Assemblyman Geddes:
Correct. We need to discuss the 15 [nanograms per milliliter]. Once we’re back in the chart and talking about the blood level and urine, I think 15 is too high. That is based on the testimony, the degradation rate of the THC in the body, the way it metabolizes out of the system, and on the data that was presented. I think it should be 2 nanograms; that’s based on the time a person is observed, pulled over, field tested, and blood drawn. Based on the first observance of driving recklessly, he could easily drop to 2 nanograms in that amount of time. I think 2 is the number, in looking at the charts and looking at the way the [prohibited substance] breaks down. That’s where I’m sitting.
Chairman Mortenson:
I am leery of always lowering things so far. I personally think 0.08 is terrible for alcohol. If you looked at the charts that were produced, 0.08 was the lowest point on the chart for accidents. I worry about people being made criminals who have legitimate reasons to have marijuana and have a tiny residual in them.
Assemblyman Conklin:
I was just going to say I do think the number needs to be lower, but based on the testimony I heard, I’m wondering if it sounded like there might be some common agreement somewhere around 4 or 5 nanograms, that the standard set in the law was 5 already; we must have gotten that from somewhere. I’m looking at it right now. Blood nanograms per milliliter is 5 on the marijuana, at least on the metabolite; maybe the THC is different, but in the testimony, 4 was the number that I heard.
Assemblyman Geddes:
I’m not sure what a marijuana metabolite is as far as the testing goes, but when they test for marijuana they test for THC and the current standard is 2. When they test for marijuana in the system and pull it out of the blood, they’re testing for THC. That’s what they are testing at and that is the legal limit now. The 5 would be for the metabolite, but I don’t know what metabolites they look at when they do that because I’m not sure which ones come out of there. Frankly, if the THC is 2 there is no way a metabolite will be higher at that point.
Chairman Mortenson:
Perhaps Mr. Nadeau could shed some light on this. I don’t know what your testimony is going to be; maybe we ought to listen to it first.
Jim Nadeau, Washoe County Sheriff’s Office:
[Introduced himself] I’m certainly not the scientist and Dr. Anderson, our toxicologist, was here and presented the testimony on our behalf. I think we agree that if you want to call it marijuana and then put in brackets “THC,” we agree with that. I think that’s probably a good thing to do. If I recall his testimony, Dr. Anderson indicated that over the 300 people that tested positive, 61 percent of those tests were in the range of between 2 and 5 nanograms. If we go to 15, less than 6 percent of the people tested were in the range of 15 or higher.
Chairman Mortenson:
Was there a physical description of the 61 percent that were between 2 and 5?
Jim Nadeau:
[Let me explain] how we get to that point. The traffic stop is made; the officer observes signs and symptoms of intoxication, whether it be from alcohol or drugs. There may not be any alcohol symptoms on board; therefore, based on the field sobriety test and those observable signs, it’s determined that the person was impaired while he was driving. In order to get to the point where blood is taken—in the case of a hemophiliac or something like that, urine is taken—there has to have been signs and symptoms of impairment; that’s what got us to that point. So there are observable signs that convince the officer that the driver is intoxicated, whether it be alcohol or drugs. It’s at that point the test is made.
Following the chronology, it’s at that point the driver is taken and the blood test administered. This could be an hour based on the time it takes for the test plus travel time and the time it takes to draw the blood. Obviously, we feel comfortable with 2 nanograms per milliliter, but we really believe that the rate is somewhere between 2 and 5; it’s probably really a logical progression.
Assemblyman Conklin:
To my recollection of the testimony, the number, I want to say, was higher than 61 percent. I want to say one of the numbers that they presented was somewhere upwards of 80 percent was at 6 nanograms and lower. So it is very important that we capture those that are impaired at that 6 and lower rate. I think that’s consistent with what you’ve said, Mr. Nadeau.
Jim Nadeau:
I think one of the reasons that it is so low is because there is such a—Dr. Anderson used a hockey stick as an example of how it drops and then flattens—there’s a very significant drop within a very short time after usage. I think that was what our concern was. If I recall, and again, I don’t understand the terms, but I believe that Dr. Anderson testified that there was a specific metabolite in the urine or that could be tested in the blood that was specific to, or could be tied to some sort of impairment.
Assemblyman Geddes:
That was carboxylic acid, which is the metabolite of the cannabinol; he testified to that. I’m not sure he said it could show any level of impairment. That was one of the discussions; it is the metabolite and it is there and it could be tested for that. Maybe that’s why it has a higher standard at the 5 nanogram level, but it really wouldn’t demonstrate impairment.
Jim Nadeau:
Dr. Geddes is absolutely correct. Dr. Anderson did say it does not reflect an impairment, but again, the impairment is reflected through the whole series of issues, what the officer observes, that get us to that point, the point of the test.
Chairman Mortenson:
So the metabolite is not a quantitative analysis.
Kristin Erickson, representing the Nevada District Attorneys Association and the Washoe County District Attorney’s Office:
[Introduced herself] I echo Mr. Nadeau’s comments with respect to the levels; it is a tremendous concern for us. If the levels remain at 20 nanograms, it would effectively preclude prosecution of people who have smoked an illegal substance.
Chairman Mortenson:
Are there any questions for either of our testifiers?
Assemblyman Conklin:
I’ve heard from a couple of attorneys about this actually strengthening our laws in terms of prosecution and keeping people who have violated our laws behind bars. Ms. Erickson, can you give me any feedback on that?
Kristin Erickson
No, it does not help us. I can’t see how it could help us, especially with the rebuttable presumption; that will kill us. That will make it extremely difficult to prosecute these cases, quite frankly.
Assemblyman Conklin:
I’m curious because we’ve made it the assumption that a person is impaired if he tests positive. It becomes his responsibility to prove beyond a reasonable doubt that he was not impaired and when he can’t do that now he is stuck.
Kristin Erickson:
It’s my understanding that the rebuttable presumption must be proven by a preponderance. The state has to prove all elements of the case beyond a reasonable doubt. We have to prove beyond a reasonable doubt that the person was driving. We have to prove beyond a reasonable doubt the elements, such as the level of nanograms per milliliter, all beyond a reasonable doubt. The rebuttable presumption, the defendant only has to prove by a preponderance. Preponderance means more likely than not. Beyond a reasonable doubt is the highest standard in our justice system. We have beyond a reasonable doubt, which is the highest standard. We have clear and convincing evidence, which is a middle standard, and then we have a preponderance, which is the lowest standard we have in our criminal justice system, which I said is more likely than not. So it’s really quite very easy to prove a rebuttable presumption by a preponderance. If it was beyond a reasonable doubt, that would be a different story; with preponderance it is extremely low.
Assemblyman Conklin:
So as we move up that chart it becomes more difficult to prove, correct? [Ms. Erickson indicated yes.] At the same time—before I go down this path, let me just clarify—I don’t like impaired drivers period, end of discussion. My research indicates there are far more people who are tired and impaired, just tired, that fall asleep at the wheel and kill people and they’re not criminals. I simply want to make sure that a person who has had too much to drink, or had a drink, is actually impaired before he gets convicted of it. The same is true with THC and all the rest of the things. It’s a very difficult thing to ascertain, and I’m quite sure in the very near future some talented attorney is going to get our current statute overturned because there is no proof that these people were impaired, which is what the law is trying to get at.
Kristin Erickson:
I certainly understand your concern with regards to impairment. Impairment is an interesting word. The statute before us regarding the prohibited substances, and what we have now for DUI, 0.10, are per se levels. This means that, basically, there doesn’t have to be impairment. If a person reaches that level he is deemed impaired. It’s very interesting because I have prosecuted people at 0.25, 0.23, extremely high levels of alcohol, and they were not pulled over for weaving or running a red light or anything like that. They were pulled over for speeding for whatever reason, 10 miles over, not egregious speeding and truly, they were not impaired; they were functioning drunks. These people who can achieve 0.20 levels in the blood alcohol system and function, probably drive better than a lot of sober people because they have built up a tolerance. That’s why we have the 0.10, because they may be able to do the field sobriety tests very easily and pass them all, but they are extremely intoxicated and their reaction times are slower. So that part concerns me. There may not be physical impairment.
Chairman Mortenson:
I don’t understand that. You’re saying that they are unimpaired but do you want to arrest them because of the level of alcohol rather than because of the level of impairment?
Kristin Erickson:
That is somewhat of what our per se law is. We have deemed that this level can impair a person in other than physical ways. A person may not fall off the line during the walk-and-turn test, but his mental processes are that much slower. His reaction time is that much slower, although he may perform well on the field sobriety test. A person can fail a couple of items on the field sobriety test and still pass the test, so one doesn’t have to be perfect to pass the test. But the reaction time is slower from the gas [pedal] to the brakes; the thinking processes are slower; it’s not all just physical, it’s also mental.
Chairman Mortenson:
I would call that impairment.
Kristin Erickson:
I suppose you’re right. Sometimes I don’t see the physical impairment, but, yes, you are correct.
Gary Booker, Chief Deputy District Attorney, Vehicular Crimes Unit, Clark County District Attorney’s Office:
[Introduced himself] In reference to Ms. Erickson, we 100 percent agree. What we have is distinguishing the tolerance for a thing. As a person uses more of a drug or more alcohol he develops a tolerance for it. That means he can perform better. The natural physiological state of the body is that if it’s put under stress enough it learns to adapt to the stress. When a person first starts drinking he could only go to a 0.04 or 0.06 blood-alcohol level; pretty soon he can go to 0.08; pretty soon he could go to a 1.5, and that is what that number really represents in terms of alcohol. What we’re looking at here is a per se statute.
Marijuana is illegal in this state; people are not supposed to have it at all. Viewing it in the best circumstance, marijuana—if a person has the theoretical doctor’s authorization of the medical marijuana statute he is precluded from being prosecuted by the per se drug statute, which in this state is the prohibited substance statute. So we are only talking about people who are using this drug clearly illegally.
What I’m getting at is the levels that have been set. When Dr. Anderson addressed the Committee the other day, he said we can tell from the 2 nanogram level of the parent drug, marijuana, and at the 5 nanogram level of the metabolite, that a person has used recently. I believe he gave us the number of about four hours. There is no number out there that tells us when a person is impaired, but we’re under a per se statute. The fact is that we know people use this drug to get impaired. Marijuana is a mild depressant, a central nervous system depressant and mild hallucinogenic, people use this drug only for impairment. We don’t know at what level they are impaired but certainly they are impaired.
When we set the original per se statutes in reference to alcohol back in the 1970s, no studies had been done; we set the blood alcohol level at 1.5 and later we had some studies that moved it back to 0.10. Now we have other studies that tell us it should be even as low as 0.06, but eventually we will use the 0.08 standard like the rest of the country.
Marijuana is pretty much the same. At some point somebody may be able to tell us at what level a person is impaired but we know that when people use marijuana they spike up very high initially; they are under the influence of it immediately. They smoke it and, because it comes in across the alveoli of the lungs, it goes immediately to the brain; they are high immediately. They start to come down after that, and we catch them in that bell curve or that “hockey stick” that Dr. Anderson was talking about the other day.
I also echo the same sentiments in reference to the numbers that were given by Bill Anderson’s lab. Our Metropolitan Police Department crime lab came back with a similar number; 70 percent of the people ended up in the 2‑4 range. They didn’t even test for the metabolite. The metabolite tells us we may not know what the level was at the very second that a person is driving and had a crash or was stopped, but it’s measured, basically, an hour later.
Marijuana and its metabolite, which is carboxylic acid, metabolizes out of the body, in terms of the blood, within a period of about 4, 5, or 6 hours. They are not going to be found in the blood [after that]. Arguably, if they are not in the blood they are not affecting a person, but if they are in the blood, we know he had it and while we can’t say what the level was when he was driving, it was certainly higher than it was at the point when the blood sample was taken, because it’s an hour, an hour and a half, maybe two hours in many instances, depending upon the rural nature or if there’s a crash or other things going on, before a person’s blood is [tested]. What we know is that it indicates recent usage; we know he is high immediately, and we only can measure after the crash because we can’t put a needle in him at the moment of the crash.
I would also like to echo the comments of Jim Nadeau; he is absolutely correct. When you look at the statute, NRS 484.383, the implied consent statute, an officer can’t even get blood unless he has reasonable suspicion that a person whom he is about test is under the influence. How is he going to get reasonable suspicion? He’s going to get it because he sees objective symptomatology that a person is exhibiting indicating that he is impaired by that drug; he has pinpointed, dilated pupils for example, or the officer sees marijuana in the car, but he’s going to have a reason. If he doesn’t have a reason he cannot take the blood. It makes no difference if a death occurred or not; he has to have reasonable suspicion. Many people don’t understand that aspect of it, so we must have, at least, some level of impairment to get to the reasonable suspicion standard before we can even take blood. Thank you.
Chairman Mortenson:
I’m sorry, would you repeat your name?
Gary Booker:
[Reintroduced himself] I almost only prosecute DUI cases and have for about the past ten years. I’ve probably done more jury trials on them than anybody else in the state; we move about 5,500 of these kinds of cases yearly.
Chairman Mortenson:
Thank you very much, Mr. Booker. I appreciate your testimony. We have some other people down there [in Las Vegas] that wish to testify. First, are there any questions for Mr. Booker?
Assemblyman Conklin:
I would just like to correct the record here. All of the chemists and pathologists who testified indicated that this will remain in the blood for a long period of time, that it’s a “hockey stick” and that at four hours is where it reached a plateau. A person might be at 2 nanograms for 12 or 24 hours, but in fact, it’s within that first four hours that he is still potentially declining on the curve from whatever the high was. So if somebody is tested within four hours and he is over the standard we can guess that he—we know that he has been caught before that number’s plateau reached the bottom. I think that’s clear to point out; it’s not gone from the blood in four hours.
Assemblyman Geddes:
I’m not sure that’s entirely right. That’s very close but I’m not sure that is entirely there. It was dropping below the 2 within two hours and it was still going out on that “hockey stick” and it was getting down there but within the two hours it could drop below 2 nanograms, based on the original spike.
Assemblyman Conklin:
I’m not saying where you could drop below. At four hours a person has flattened and anything outside of that may not be testable; I don’t know.
Assemblyman Geddes:
I have a question for Mr. Booker. When we’re talking about prosecuting and looking at this and the standards that Ms. Erickson brought up earlier, is it the “rebuttable presumption,” period, you don’t like? If the standard was raised to “clear and convincing” would you be comfortable, or if it was moved all the way up to “reasonable doubt” would you be comfortable?
Gary Booker:
Two things, the first thing, in reference to marijuana being in the blood, I’ve had testimony on this several times. I’m sworn as an expert in the Eighth Judicial District Court in this area. Marijuana will get into the fat-soluble tissues and will stay locked in there for a long time. We will find it in hair samples; we can find it in urine at times; we will find it through other means for maybe weeks afterwards. But marijuana and its metabolite, carboxylic acid, THC, and THC carboxylic acid are out of the blood very quickly. They are absolutely gone, on the outside, in about six hours. In the testimony the other day four hours was the window that was given and that is consistent with testimony I’ve heard before.
In reference to the rebuttable presumption, this is a per se statute; to put any kind of a presumption in there which allows a person to overcome the per se statute has the intent and the effect of vitiating the per se statute.
The purpose of having a per se statute is, we’re not sure altogether what the science is but we know that we have problem, we have demonstrated background of people taking lives or getting in crashes or driving badly with this substance in them, and until we figure out something better we’re going to go with the per se statute.
The second reason we put it in there is so that law enforcement has a vital tool in keeping the streets safe. These drugs, every one of them listed in this section, are unlawful, common street drugs. That’s part of the reason they were chosen to be put in here. They include cocaine, amphetamines, methamphetamines, phencyclidine, heroin, diacetyl-6-morphine; these are all just plain street drugs. No one should have them in his system at all.
What we seek to do with the per se statute is to say that if a person has these illegal drugs in his system, which he is not supposed to have, he is already committing a felon. If he is driving a vehicle, he is compounding the felony and making it everybody else’s problem out on the street.
When we create a per se statute there shouldn’t be a rebuttable presumption of any kind in there because it is not supposed to be a rebuttable presumption. It’s supposed to be a per se statute and there have been legitimate cases—State v. Slinkard, even this statute has been constitutionally upheld by the Nevada Supreme Court in a 28‑page opinion on the case of State v. Jessica Williams—they have upheld it on vagueness grounds; they’ve upheld it on presumptive grounds; the opinion goes on and on. It has not been overruled by a federal court and it will not. I hope that answers your question.
Assemblyman Geddes:
That answered my question. Opposing the rebuttable presumption, are you comfortable with the THC level at 2 or at 4 or 5 or 15 nanograms per milliliter; at what level are you comfortable with no rebuttable presumption?
Gary Booker:
The 2 nanograms per milliliter because that gives us, as prosecutors and scientists as well, the knowledge that for a person to have that in his blood—I’m not talking about urine or in fat tissue or anything else—if he has that in his blood, we know that he has used marijuana at least within four hours of the testing. That applies with equal vigor to the parent ingredient, tetrahydrocannabinol as well as its metabolite, tetrahydrocannabinol-delta-9-carboxylic acid.
Assemblywoman Giunchigliani:
I think we continue to confuse using with abusing. This statute, regardless, is supposed to be trying to get at impairment, although Mr. Booker, in one of the cases, said it didn’t care about whether it was impairment, but just simply whether there’s an amount in the system. I think NRS 484 already says that [the state] can prosecute for someone feloniously using these drugs in the first place. That’s a secondary issue. This, to me, is supposed to be getting at trying to show and link the issue of impairment. I believe that rebuttable presumption has to be part of that debate. I think people are entitled to be able to, at least, make an argument in court that they are not impaired. I know I am not an attorney, so I don’t know how to argue, but the state can already argue the point and nail them under NRS 484 for the purpose of having any of these drugs in their systems.
Chairman Mortenson:
To me, that’s perfectly logical that you don’t nail a person for being impaired with a drug if he’s not impaired with a drug. It may be that he’s given a ticket for having drugs in his system, but I wouldn’t think you would want to do it for driving impaired if the person isn’t impaired. That doesn’t seem right, but that’s my “non-legal” opinion.
Risa Lang:
As a point of clarification in this discussion, when I saw the amendment, I was wondering, if we add the THC onto the list and still remove the marijuana metabolite, how that would work with the rebuttable presumption. I wasn’t sure if—it sounds like you still want the rebuttable presumption and so probably in that case, we wouldn’t need to put it in the list, which is the per se portion of it. I just thought it was a matter for clarification.
Assemblywoman Giunchigliani:
Not being attorneys, Jason and I thought we should put it back on, but in order to maintain the rebuttable presumption you need to segregate it and not have it on the list. Is that what you’re saying?
Risa Lang:
I think that if you want to have the rebuttable presumption that perhaps it (THC) wouldn’t go on the list because the list is referring more to the per se; if you have that limit then you are impaired; that’s what the discussion has been. Separating out and making it a rebuttable presumption is creating a different standard for that type of substance.
Assemblyman Geddes:
The way it’s worded now, the rebuttable presumption would only apply to the THC. If you put the THC back up on the list the rebuttable presumption would go to every drug on the list. So if you’re just talking about rebuttable presumption and you want to isolate it just to the THC, you would leave it the way it is in the bill draft; is that correct?
Risa Lang:
If you want to have a rebuttable presumption for all of these, we would have to change the way that the statute currently reads because it’s not currently rebuttable presumption. We would have to change the language in subsection 3 to provide that those amounts create a rebuttable presumption rather than a per se limit.
Gary Booker:
There are approximately nine other states that have a “drugs per se” statute, which is essentially what our prohibited substance statute is. None of them even play around with the amounts or anything else. They say “any detectable amount” and absolutely none of them have the rebuttable presumption of any kind. Essentially, if you have this amount, then, since we can’t take blood, there has to be some impairment to get to a person’s blood in the first place. There has to be a reasonable suspicion. We can’t just pull everybody over and get it. So we’ve already got, at least at some level, a demonstration of impairment. That’s why the statute was written that way—with the implied consent. Once that level has been breached then we have a number, whereas other states don’t even have a number, but the rebuttable presumption vitiates the whole notion of a prohibited substance or a drugs per se statute.
Chairman Mortenson:
Thank you, Mr. Booker. Like Ms. Giunchigliani, I’m not a lawyer, and I don’t understand, but it seems to me the law should cite a person for what he has done wrong. If a person has a trace of drugs in his system and he is unimpaired, he should get a citation for using the drug but not for driving a vehicle in an impaired manner if he’s not impaired. However, if he is above the numbers then he should get the citation, perhaps, for both. I just don’t understand citing someone for being impaired if he’s not impaired and just because he happened to have a trace in his hair or his fat or something of that nature.
Gary Booker:
Before we can even get a person’s blood, we have to show that he is impaired. How are we going to know that he may be under the influence? We have to have reasonable suspicion to believe that he is under the influence or showing objective symptomatology, even before we can do a blood draw. We have at least some level of impairment demonstrated at that point already. Then it becomes a matter of how much he has. What that number will tell is how recently he used before he drove, which tells us how much more dangerous he is; the higher the number, the more dangerous the person is.
Chairman Mortenson:
Mr. Booker, if a person is involved in an accident and has a much, much lower, just a trace amount of some prohibited substance and the accident was because he was sleepy, do you feel then that he should still get a citation for being impaired?
Gary Booker:
Absolutely not; if he’s below the prohibited substance amount he is not going to get a ticket. As a matter fact, the labs do not even report it out. They find amounts less than 2 nanograms per milliliter all of the time. It’s not reported as a positive test and nothing happens as a result of it.
Chairman Mortenson:
There is another person in Las Vegas who hasn’t had a chance to testify. Is Angela Faber there?
Erin Breen, Director, Safe Communities Partnership, Clark County:
Mr. Chairman, Angela Faber had to leave, as did Maggie Saunders. [Introduced herself]
Chairman Mortenson:
Would you like to testify?
Erin Breen:
Mr. Chairman, I was here today to answer any questions that may arise, and obviously Mr. Booker, Ms. Erickson, and the rest are doing a terrific job on that. I would just like to call your attention to the fact that we study traffic crashes for a living. Our goal is to reduce traffic crashes in Clark County.
I would just like to point out to you that there were, in each of the last two years, 15 fatalities where the at-fault driver that caused those fatalities was in that 2‑5 marijuana nanogram level. In the year before that—three years ago—there were 30 fatalities in Nevada where the at-fault drivers tested positive for marijuana. This is not something that we take lightly at all and we just wanted to be here today to reiterate our concern about moving the per se levels to anything higher than already established.
Assemblyman Conklin:
Just out of curiosity, Mr. Booker, how many total traffic fatalities were there?
Gary Booker:
Was that in Clark County or statewide?
Assemblyman Conklin:
I believe the number was 15 fatalities statewide.
Gary Booker:
For the entire state there were about 110, that’s overall impaired driving in 2001, but that encompasses everything—alcohol, every other kind of drug.
Assemblyman Conklin:
I’m talking about total traffic fatalities.
Gary Booker:
There were 312.
Assemblyman Conklin:
So there were 312 total traffic fatalities and of those, 15 of those died as a result of drivers who tested positive for marijuana under our per se laws. Is that correct?
Gary Booker:
That’s marijuana alone. Marijuana is mixed in with other things scattered throughout many of those other cases, mixed with alcohol or amphetamines, so marijuana—I would venture to guess that marijuana is probably in about one‑third of that total number—it’s somewhere in it, but in terms of marijuana alone, there were only 15; that’s 15 lives lost.
Jim Nadeau:
What Mr. Booker is saying is that marijuana was the only substance that the drivers had on board. It is not uncommon that in crashes and with a variety of these instances, they have multiple drugs or multiple substances on board. They may have had marijuana, alcohol, or some methamphetamine; they may have a whole variety of things. When we say “on board” we mean within their systems at the time. What Mr. Booker is saying is that of those 15 crashes where there was a death, the drivers were on marijuana only without any other substance on board.
Assemblyman Conklin:
Do we know of those 15 deaths, how many of the drivers were impaired at the time?
Erin Breen:
When I asked—that number comes from the Nevada Office of Traffic Safety—they went down as the at-fault driver; they were charged with driving impaired. There may have been many more cases where if you looked and asked for a number and said, “Tell me how many traffic crashes there were that involved drugs,” you’d get a much, much higher number. I specifically asked them to give me the at-fault drivers. Because they tested positive for marijuana and again, marijuana only, nothing else on board in their systems, strictly marijuana, they were charged with a vehicular felony. The other thing you have to realize is how many times a crash happens when a blood draw is never requested on the driver. I can tell you from work I’ve done in the trauma center, they do not test unless it’s specifically requested by the arresting or attending officer. They know for a fact that there was some substance and I can’t tell for sure that it’s marijuana; they know there was a substance on board. But if not specifically requested by the officer, the [trauma center] will not report.
Assemblyman Conklin:
So what you’re telling me is that of those 15 deaths, you don’t know how many of the drivers were actually impaired. We just know they had marijuana in their systems.
Erin Breen:
I just guess that depends on what side of the fence you’re on. We would consider all of those drivers impaired and that’s what caused the crashes.
Assemblyman Conklin:
We would consider that. I can assure you when I leave here tonight, because I’ve been here for about 14 hours, and I have had nothing to do but drink coffee, I’m going to be impaired.
Erin Breen:
But you wouldn’t test positive for anything illegal.
Chairman Mortenson:
I think we probably need to move along. Thank you very much, Ms. Breen, for your testimony. Does anyone else have a little more discussion before we start on the amendments?
Assemblywoman Giunchigliani:
I do appreciate the time and attention to this. I think anyone sitting in this room is not advocating anyone to drive under impairment of anything.
I do believe, though, simply testing positive does not necessarily mean that a person is impaired and therefore he should at least have the opportunity to rebut that in court. If that case can’t be made and it’s after the two-hour period, he’s in. But we already have a statute that people should have a felony charge against them if they are caught with any drugs in their systems but are found not to be impaired. That’s already in place. If law enforcement is not choosing to use that and simply is dealing with the DUI part of it then that’s irresponsible; that’s not using the laws that are on the books to allow them to go after someone who used an illegal substance.
Chairman Mortenson:
Rebuttable presumption sounds very reasonable to me because I don’t think anyone should be cited for driving impaired if he just happens to have a trace; if he happens to have a trace, as you said, he should get cited for that.
Are there any comments on that? We’re working on the rebuttable presumption.
Assemblyman Geddes:
I wasn’t quite sure on the rebuttable presumption but after hearing from everybody today I’m sure I do not like it. We have a level of concern about what is “trace.” If a person is pulled over then the limit of 2 nanograms is too low for that trace based on the data we saw; maybe it’s 3 or maybe it’s 4, but I’m agreeing with the people that testified today that the rebuttable presumption should be out. It shouldn’t be there and if we think that without it there are going to be people stopped at the level of 2, then maybe we should raise it to 3 or 4. I don’t think it should be in there.
Chairman Mortenson:
Mr. Conklin, what is your opinion on rebuttable presumption?
Assemblyman Conklin:
Quite frankly, I’m not 100 percent sure about the rebuttable presumption at this point. I think there are some points well made. My concern is this; if somebody dies of a stab wound, the mere fact that a person has a gun and is near [the scene] doesn’t mean he’s guilty [of the stabbing] just because he has a weapon—maybe it’s an illegal weapon—for that particular crime.
It seems to me that what we’re saying here is that we are trying to get at those people who we know were impaired because of this drug, they have committed this crime and should be sentenced and put away. The flip side of this is if someone is driving under the influence and not impaired he’s no less guilty, but we already have statutes that get at that. He gets his traffic violation first, and then we turn around and get him for the violation of using drugs in the second place. At least, I would assume we are prosecuting under both because he has now tested positive for a prohibited substance.
That’s a long way around it; when it comes to the rebuttable presumption, I probably want to get the advice of some of my attorney friends on the larger Judiciary Committee because I’m not an attorney, as we all know. If I’m going to go for it, I would probably look for a much higher standard; Ms. Erickson’s discussion of “clear and convincing” or “beyond a reasonable doubt,” I believe, was the highest one. I guess I would have to weigh all those in. I know that doesn’t help you as far as making a decision to get it out of Subcommittee.
Chairman Mortenson:
We’ll just put an “undecided” on rebuttable presumption, then.
Jim Nadeau:
I don’t want to belabor the point. I just want to restate that in order to get to the point where we take blood to prove impairment, we have already determined that there are signs and symptoms of impairment in order to get there. In other words, we make a traffic stop and it’s not just a matter of speeding that leads us to the blood test. The driver must do the field sobriety test and there must be signs and symptoms of impairment to get us to that point so that we can then move to that next layer. If we stop a driver because he was speeding and we don’t have any signs and symptoms of impairment then we cite him for speeding and he is on his way. He may have even had drugs on board; we don’t know that because we had no indication of impairment. I just wanted to make that clear.
Chairman Mortenson:
At this point we have one for [rebuttable presumption], one against, and one undecided; so we’ll leave it at “undecided” and then we’ll go to “threshold level” or THC level that we put in here. What’s your opinion, Doctor, on the level that should be in here for THC?
Assemblyman Geddes:
I personally think it should be at 2 nanograms, which is what the standard is and what they’re testing at. I’m not sure of a reason to raise it; I’m comfortable with 2.
Assemblyman Conklin:
I’ll go with 2.
Chairman Mortenson:
So we will go with 2 nanograms per milliliter for the THC level.
Do we do the rebuttable presumption for all of the substances or do we do it for marijuana?
Assemblywoman Giunchigliani:
The intent was to focus solely on the marijuana because of the per se law; it was not trying to overturn the whole thing. I will state that I believe if we maintain the law as it currently is written, which is basically what you are choosing to do, you will open us up to a lawsuit. I understand what Mr. Nadeau is saying; however, to use Mr. Booker’s words, “they simply deal with it based on a reasonable suspicion,” not impairment. I do think we have an obligation to make sure that people are innocent until proven guilty. I do believe that reasonable presumption, which we currently have in hundreds of the laws in this state, is the best way to go to, at least make sure that we are proving someone’s innocence as well as his guilt. I think if they have to work a little bit harder to do that, I’d rather have that and err on the side of someone still being innocent until proven guilty.
Chairman Mortenson:
I’m on your side on that one. So now we will take the THC level back out of the chart and put it back into the discussion paragraph following it. Are there any other items that we need to care of regarding this bill?
Assemblywoman Giunchigliani:
I think you just need to make sure that you’re going to deal with the “whole blood” at some point.
Chairman Mortenson:
Do we just put “whole blood” every place that we have “blood”? [Ms. Giunchigliani indicated, yes, where applicable.]
I hope our LCB expert has all of these changes. I’m not hearing anything so I guess so.
Ms. Giunchigliani, is there anything else you think we need to do? We have everything but the “undecided” here.
Assemblywoman Giunchigliani:
I do appreciate your consideration and thoughts. It’s a difficult decision, but I believe that that’s our job. Sometimes we have to make tough decisions that are not always are not politically correct or that may be perceived incorrectly. I think that is part of our job. I think when we create laws that are unconstitutional, and I believe this language is, then I think we have an obligation to at least review it and make some changes. I do appreciate the changes and the edits that you’re making at a minimum.
Chairman Mortenson:
If we put “marijuana” and then “THC,” is it going to be absolutely certain it’s going to be the THC that’s measured instead of the marijuana? “Marijuana” has no meaning, right?
Assemblyman Geddes:
From the lab perspective, THC is what’s analyzed, it’s not marijuana, but for the sake of the law and the interpretation of the law, you need “marijuana” in there just so that everybody knows what we are talking about. But it would be marijuana, its prime constituent or main component, THC, something like that.
Chairman Mortenson:
That’s good. We got that. Is there anything else we can think of here?
Gary Booker:
Are we moving the carboxylic acid or the THC, the marijuana metabolite, the delta-9-tetrahydrocannabinol carboxylic acid, which is the metabolite, back up into the. . .
Chairman Mortenson:
I don’t think so, Mr. Booker, I think we are going to leave it at THC.
Gary Booker:
So you are not going to have the metabolite in there that is a measure, as well, that a person has recently used?
Chairman Mortenson:
We’ve heard so much testimony that we should move that out if I’m not—gentleman, what’s your opinion on that?
Assemblywoman Giunchigliani:
The carboxylic acid is not an active ingredient; everyone who testified to that [said] it was not appropriate to be listed; that was not causing the impairment, and that is even what Dr. Anderson from Washoe County testified.
Gary Booker:
It may not cause the impairment, but it is like walking with a footprint; the person had marijuana on board at the time he was driving.
Assemblywoman Giunchigliani:
It isn’t an active ingredient, Mr. Booker, and I believe even Dr. Anderson testified otherwise. [Mr. Booker and Ms. Giunchigliani were speaking at the same time; Mr. Booker’s comments were inaudible.]
Chairman Mortenson:
We are going to do it this way. We’re going to leave the metabolites out and have just the THC. Are there any other comments?
We will report back with all the changes except the undecided on the rebuttable presumption.
The hearing is closed [at 8:18 p.m.].
RESPECTFULLY SUBMITTED:
Sabina Bye
Committee Secretary
APPROVED BY:
Assemblyman Harry Mortenson, Chairman
DATE: