MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
April 23, 2003
The Committee on Judiciarywas called to order at 8:19 a.m., on Wednesday, April 23, 2003. Chairman Bernie Anderson 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.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mrs. Sharron Angle
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Mr. John Oceguera, Vice Chairman (excused)
Mr. David Brown (excused)
Mr. William Horne (excused)
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Sabina Bye, Recording Committee Secretary
OTHERS PRESENT:
Robert Roshak, Sergeant, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department; and representing the Nevada Sheriffs and Chiefs Association
Stan Olsen, Lieutenant, Governmental Liaison, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department
Bruce Nelson, Deputy District Attorney, Vehicular Crimes Unit, Office of the District Attorney, Clark County
Van Heffner, President and CEO, Nevada Hotel and Lobbying Association; President and CEO, Nevada Restaurant Association, and author, Serving Alcohol With Care series
Mary Lau, Executive Director, Retail Association of Nevada
Laurel Stadler, Lyon County Chapter Director, Mothers Against Drunk Drivers (MADD)
Sarah Stadler, Youth Coordinator, Mothers Against Drunk Driving; and Founder, FATE (Fighting Alcohol Through Education) Club
Jim Nadeau, representing the Washoe County Sheriff’s Office
Janelle Kraft, Budget Director, Las Vegas Metropolitan Police Department; and representing the Southern Nevada Regional Planning Coalition, CPI Task Force
Marsheilah Lyons, Senior Research Analyst, Research Division, Legislative Counsel Bureau
Kathryn Landreth, Legal Counsel, Las Vegas Metropolitan Police Department; and Chair, Southern Nevada Adult Mental Health Coalition
Gary Milliken, representing American Medical Response Ambulance Company
Maureen Brower, Chairwoman, Westcare Nevada
Jim Wadhams, Attorney, Volunteer Board Member, Westcare Nevada
Victoria Riley, representing Nevada Trial Lawyers’ Association
Bruce Nelson, Deputy District Attorney, Vehicular Crimes Unit, Office of the District Attorney, Clark County
Tracy Birch, Manager, Forensic Laboratory Chemistry Criminalistics, Las Vegas Metropolitan Police Department
James Jackson, on behalf of the Nevada Attorneys for Criminal Justice
Chairman Anderson:
The Assembly Committee on Judiciary will please come to order. [Roll was called and a quorum was present. The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.]
Please note the sign on the witness table concerning the legality of misrepresenting facts before the Legislature either here in Committee or in the hallways.
Let’s open the hearing on S.B. 91.
Senate Bill 91 (1st Reprint): Removes element of knowledge from crime of selling, giving or furnishing alcoholic beverage to person under 21 years of age. (BDR 15-319)
Robert Roshak, Sergeant, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department; and representing the Nevada Sheriffs and Chiefs Association:
[Introduced himself.] We support S.B. 91. The reason we requested the change was the Supreme Court decision that the term “knowingly” was contained in existing statute, making the bill unenforceable. We also feel we built in some protections for clerks and those sellers of alcohol so that if they are provided identification that appears to look real, they cannot face any charges.
Chairman Anderson:
I believe we made this change in another piece of legislation we have already sent to the other house.
Assemblyman Carpenter:
In S.B. 91, page 2, it states that, “if a clerk were shown identification,” but on line 15 it states, “if the document was counterfeit or forged,” they would be chargeable. With present-day technology a clerk will be unable to determine whether identification is counterfeit or not. Perhaps later on, if the police determined it was, the clerk could be charged. I don’t understand.
Sgt. Robert Roshak:
On line 20, it also states, “If a reasonable person would have suspected the document was legitimate” then there would be no problem. We do not anticipate a problem in this area.
Assemblyman Carpenter:
It also says, “The complete defense set forth in this subsection does not apply, if, under the circumstance, a reasonable person would have known or suspected the document was counterfeit.” I think that portion could present a real problem for a person charged with checking identification and determining whether they were counterfeit or not because they really don’t know. How are they supposed to know that?
Sgt. Robert Roshak:
What we were looking at in the intent of S.B. 91 is that the person is provided identification that appears to be legitimate and they are not accepting something a reasonable person would know to be forged, we would not be going after them for those charges.
Chairman Anderson:
If I understand subsection 3, subparagraph (b), on page 20, Sgt. Roshak is saying that if the clerk has been provided with a document and the clerk believes it is a legitimate document and thus sells the alcoholic beverage to the underage person, then subsequently the police stop the individual, they produce their driver’s license, you ask where they got it, they reply, you then go back to the store and the clerk says, “He provided me with this document I have a copy of” and the police deem it to look like a legitimate document, the clerk would not be charged? Or does the clerk have to go to court anyway?
Sgt. Robert Roshak:
I would think that we would not charge the clerk based on that information.
Chairman Anderson:
Is it the fact that a second person has looked at the forged document and they also drew the same conclusion, that they would have been fooled by the document as well?
Sgt. Robert Roshak:
Yes, Mr. Chairman.
Chairman Anderson:
Why would a young person want to show a police officer a forged document because that would be a second charge against them?
Sgt. Robert Roshak:
Yes sir, it would be, but young people purchase those and I can’t explain to you why they would want to do that.
Stan Olsen, Lieutenant, Governmental Liaison, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department:
We have had incidents in which the older type driver’s license that the Department of Motor Vehicles (DMV) is just moving away from, where they will cut out the date of birth area from behind and then place in a different year of birth. They are very good at it and the store clerk would not be able to tell. One way to tell is to hold a flashlight behind it and there is a little telltale light behind the square they cut out. So they do present them to us and sometimes they get away with it and sometimes they do not.
The idea behind the bill is to detect it first.
Chairman Anderson:
I thought the DMV used to produce a different background for young people under the age of 21.
Lt. Stan Olsen:
They will also borrow a brother’s, sister’s, or cousin’s ID who is of age also, and hope it isn’t looked at closely.
Assemblyman Carpenter:
I understand what the witnesses are saying, but that is not what S.B. 91 is saying. In the first part of the bill it states, if I look at the ID and it appears fine to me, I agree with that part. It doesn’t state I have to take the time to put a flashlight behind it either. But, later in the bill it states, “The complete defense set forth in this subsection does not apply if the document that was shown or otherwise furnished was counterfeit.” Then, because I looked at it and I thought it was legitimate, the way that section reads is that if the police discover it is a false ID, then I don’t have that complete defense.
I don’t think that is right. As you said, with the newer high-tech methods, it is really hard to tell whether an ID is fake or not unless you are trained in it. I think the bill would place a very high standard on the clerk.
Chairman Anderson:
Ms. Lang may be able to clarify this for us.
Risa Lang, Committee Counsel:
I think you are reading it correctly except that in the bottom portion, the bill specifies you must have both (a) and (b) for the complete defense not to apply. The second portion of that is that a reasonable person would have known or suspected that the document was counterfeited. So, not only must the document be a counterfeit but also the clerk that looked at it would have had to reasonably believe that it was counterfeit. So if he had a reasonable belief that the document was real it wouldn’t matter that it turned out to be a fake.
Chairman Anderson:
In other words, the clerk had to know the identification was fake and accept it as a fake document for them to be charged. Is that what you are saying?
Risa Lang:
Yes, because in subsection 3, as Assemblyman Carpenter noted, it only has to appear to be issued by a federal, state, or local government, and then a complete defense does not apply if it turns out to be forged and under the circumstances the person would have known or suspected it was counterfeit or forged. You must have both those elements in order for the defense not to apply. It will really only apply in those cases where the clerk can be shown to have known or he should have known that it wasn’t a legitimate document and accepted it anyway.
Assemblyman Conklin:
Again, in subsection 3, paragraph (b), I have two questions. First, do law enforcement agencies have some standard of what a reasonable person would believe in this particular case? Do you have some written standard or how do you define that?
Secondly, I am concerned about the word “suspected,” and I guess that goes to the obligation that the store person has between something that just doesn’t look quite right versus something where they have a reasonable knowledge something is not correct. For me, it is the stretch from “a reasonable” to the word “suspected.”
Lt. Stan Olsen:
If a clerk does have some suspicion, they have a right to refuse to sell the alcoholic beverage, and that does happen on a regular basis.
I can’t speak for the specific policies of all the Sheriffs and Chiefs, but I can tell you there are policies within the Las Vegas Metropolitan Police Department that provide a guideline of how these operations are done. When we perform the MAP Program, which is done on a regular basis, there are guidelines for setup, operation, and supervision. Without knowing the exact policies in every rural county, I believe all the rural counties and Washoe County do the same thing.
Assemblyman Conklin:
You’re speaking with regard to what a “reasonable” person would know or suspect?
Lt. Stan Olsen:
Yes, sir.
Assemblyman Mortenson:
Is there anything in S.B. 91 that would allow a parent to give their children alcoholic beverages before they were 21? Would that be a crime?
Lt. Stan Olsen:
That is not contained in S.B. 91 because the bill covers a different issue. However, a parent has the right, in the privacy of their home, to let their child have a taste of alcohol, have a drink with dinner, for religious purposes, or whatever they choose to do. That is not something we would ever be involved in.
Assemblyman Mortenson:
The bill uses the word, “furnishes.”
Lt. Stan Olsen:
The issue is one of furnishing addresses those times when a clerk will sell alcohol to an adult who has been given money from a juvenile to go into the store and buy him a six-pack of beer. That is, he gives the adult the price of the beer and then perhaps an additional $10 for doing it. Then the adult “furnishes” the alcohol.
The bill addresses if anybody “furnishes” a juvenile with alcohol such as a beer out of the cooler in the back of your car.
If you look at the top of page 2, lines 1 and 2, it says, it “does not apply to a parent, guardian, or physician” of the person supplying the alcohol.
Assemblyman Mortenson:
Where is that again?
Lt. Stan Olsen:
It is existing language in Section 1, subsection 2, page 2, lines 1and 2.
Assemblyman Mabey:
I am personally okay with the way the bill is written, but how would you feel if we simply eliminated lines 13 through 23? It seems like that would enable a youth to get a forged document and still have the ability to get the alcohol either way, but then it would take the store off the hook.
Lt. Stan Olsen:
We would have some issues with that proposal. If we did that, then a clerk could always use the excuse, “Gee, I didn’t know.” While the clerks are trying to do things well 90 percent of the time, there are that 10 percent who don’t.
Assemblyman Claborn:
Even if the store owner or clerk got caught selling liquor to a minor and you asked them whether they thought the identification was legitimate or not, they would always say no if they knew they were in trouble. Therefore, I have to agree with Assemblyman Mabey.
Sgt. Robert Roshak:
I don’t believe it is up to the storeowner or clerk’s decision, whether he says that it was a legitimate identification; it is what a “reasonable person” would think.
Assemblyman Claborn:
I think it has been asked already, but not answered; can you tell me what a “reasonable person” is? I believe if I am approached to sell liquor and then I get in trouble, I can just say, “I didn’t know, it looked real to me.”
Lt. Stan Olsen:
The courts have already defined the “reasonable person.” It is in various laws and it has been used many times. There is already a standard that has been set down through the court system, and while I can’t cite them, I would believe that Ms. Lang could help with that.
Chairman Anderson:
I guess we could look to Mr. Nelson from the District Attorney’s Office to help with that when he comes forward to testify.
Bruce Nelson, Deputy District Attorney, Vehicular Crimes Unit, Office of the District Attorney, Clark County:
[Introduced himself.] We do use a “reasonable person” standard in both civil and criminal laws. I guess the best example I could give is if I went into a store with Assemblywoman Angle’s driver’s license and the clerk looks at that and sells me the beer, assuming I’m a minor. Obviously a “reasonable person” would not think that I am Assemblywoman Angle. If I go in there with Assemblyman Claborn’s license, that is a little different story because we both wear glasses and we both have mustaches.
In any event, a court looking at that must find beyond a reasonable doubt that a reasonable person would have thought the license as legitimate. Thus, the store clerk is protected if there is some dispute about whether this is reasonable or not. When they go to court, the judge must believe beyond a reasonable doubt that a reasonable person would have thought the same. A reasonable person is simply a person who, viewing the facts known at the time, would reasonably conclude that this was a valid or a false ID, or if they would have some suspicion.
I think with the law addressed by S.B. 91 we would want that the clerk had some suspicion to refuse to sell the alcohol. Assuming the person is not a minor, they could go down to another store and try it there. If they are a minor we don’t want them getting alcohol anyway.
A reasonable person is someone who, reviewing all the facts as known at the time, would conclude that this either was or was not a legitimate form of ID.
Van Heffner, President and CEO, Nevada Hotel and Lobbying Association; President and CEO, Nevada Restaurant Association; and author, Serving Alcohol With Care series:
[Introduced himself.] We have been on every side of S.B. 91 since it has been introduced. We have been opposed to it. “Knowingly” was something we absolutely did not support. At the same time we are very supportive of responsible service of alcohol in our restaurants and casinos.
When an ID is presented that appears to be legitimate, we definitely want support for our servers. I have to concur with both Assemblymen Carpenter and Mabey.
We support the concept of S.B. 91 as amended. We would feel more comfortable if there was clarification language between lines 13, and 23.
Chairman Anderson:
I thought the language between lines 13 and 23 had been agreed to by your organizations in compromise already.
Van Heffner:
I had not agreed to that. I had not disagreed. We were neutral on the proposal. At this point, we can live with the bill.
Assemblyman Carpenter:
Knowing the “real world,” I have a serious problem with the way the bill is written because in the first part it says if you look at the ID and it looks fine—I mean, if they give you the ID of a female and it is a male that gave it to you—there is something wrong there. But, if it is a high-tech ID, the clerk really can’t tell, and then if the police determine it is counterfeit, the bill would cause a charge against the clerk, and that is not right. Senate Bill 91 needs to be modified in some way so that the people out there looking at the identifications can live with it.
Sgt. Robert Roshak:
I have to go back to the “reasonable person” standard. That would be just showing it to a person and seeing if they believe it, not tracking through the whole history of the identification document.
Chairman Anderson:
It appears we are somewhat stuck here on the horns of a dilemma. We are stuck with a Supreme Court decision in Garcia v. Sixth Judicial District Court. That decision makes Nevada’s “knowingly” law not clear enough so that knowledge is not enough for a person to be convicted of violating a statute. There must be proof that a person had actual or constructive knowledge of the purchaser’s age. Thus, in trying to ensure that underaged drinkers are not furnished alcohol, we need to come up with a clearer definition, and S.B. 91 is an attempt to do that.
Mr. Carpenter still maintains we have a bit of a problem. I don’t want to understate his concern but we are still vague in the language. Determining “reasonable” as a factual determination that would go to the jury for its decision is ultimately where the concern lies.
Sgt. Robert Roshak:
We would be willing to work with anyone to get this bill passed.
Mary Lau, Executive Director, Retail Association of Nevada:
We had planned to appear before the Committee to request additional work on the bill, but it appears that will already be the plan.
Chairman Anderson:
If we could find some “reasonable” standard that could be met, that would be most helpful.
Mary Lau:
We would be most happy to work on that, Mr. Chairman. Sam McMullen and Alfredo Alonso were talking about this amendment prior to the Senate passage, but time ran out.
Our concern does mirror Assemblyman Carpenter’s because of the Supreme Court decision. The gentleman in question was 20 years, 6 months of age, with facial hair, dressed to look like he was an adult. He showed up in the courtroom looking like a young person with his hair cut and his mustache or goatee cut off.
We felt there had to be a higher standard, or some way we could assist in these circumstances.
Laurel Stadler, Lyon County Chapter Director, Mothers Against Drunk Drivers (MADD):
We are in support of S.B. 91 and the concept that the clerk and other sellers do need to be responsible in providing alcohol and particularly in the realm of checking identification.
In my reading of the bill, more than splitting hairs on whether or not an ID is valid, is that the clerk does check an ID. It seemed to me that “knowingly” in the old fashioned way meant they would check an ID and then know if they were of age or not.
Hopefully this will address the ID being legitimate or not, and will make that person check an ID in addition to making sure it is legitimate. We want to make sure they check for the ID.
Chairman Anderson:
Seeing no further testimony, I hereby close the hearing on S.B. 91. It has been brought to my attention that the bill needs to be worked on. We would ask that the Committee has a work session scheduled on May 2, 2003, and we would like to consider the bill at that time and would need the changes by the Wednesday prior to that date. Please allow Assemblyman Carpenter the opportunity to review whatever language is agreed on before it is submitted to the Committee.
I hereby open the hearing on S.B. 205.
Senate Bill 205 (1st Reprint): Prohibits impairment of minor by use of alcoholic beverage. (BDR 15-1030)
Laurel Stadler:
I would like to thank Senator Ann O’Connell and members of the Interim Committee on the Study of Suicide Prevention for recommending this piece of legislation. Senate Bill 205 looks beyond the ultimate problem of suicide to one of the root problems that lead to that fatal choice. We become very frustrated when communities and committees talk about suicide, the dropout rate, teen pregnancies, and other social problems without looking at the root problems.
One of the most pervasive and persistent precursors is alcohol and substance abuse. Our mission with MADD is to stop drunk driving, support victims of this violent crime, and prevent underage drinking.
As we all know, it is illegal for a minor to purchase, consume, or possess alcohol, with some clearly defined exceptions. Senate Bill 205 addresses the anomaly in the possession statute. Possession has been defined to mean physical possession of the alcoholic beverage, not internal possession of the alcohol itself. This limits the ability of law enforcement to make a specific possession citation of the minor, which sets in motion the specific sanctions, including an evaluation and treatment if indicated. I know that a lot of people are opposed to more severe sanctions for minors, thinking they are punitive in nature, but I would hope that you would see this as an opportunity to get our youth the needed treatment to hopefully prevent future alcohol-related actions such as suicide attempts.
Several statute changes regarding alcohol use and possession were made in 1995, as a result of the Assembly Concurrent Resolution 71 of the Sixty-eighth Legislative Session interim study, and the area of internal possession was really identified as an anomaly after those statutes were put into use. By clarifying the law with S.B. 205, we would be providing a tool to law enforcement statewide.
There are individual entities like the City of Reno, City of Sparks, and Washoe County that have made code or ordinance changes to address internal possession, but those don’t necessarily lead to evaluation and treatment if needed. Those ordinances are also not consistent from jurisdiction to jurisdiction. The effective change with internal possession specified in statute would enable law enforcement, when they came into contact with a minor who had obviously consumed alcohol and was in internal possession of alcohol, to cite the minor and get them into the system, with the ability to have the minor evaluated for the alcohol abuse. Often, only by detection from law enforcement, which includes school police, can minors be offered the treatment they need in a positive, not a punitive, way.
Please help us to prevent underage drinking by passing S.B. 205, which in turn will help prevent teen suicide, teen pregnancy, and many other social problems.
Sarah Stadler, Youth Coordinator, Mothers Against Drunk Driving; and Founder, FATE (Fighting Alcohol Through Education) Club:
The FATE Club (Fighting Alcohol Through Education)is a group of peers educating our peers and the community of the dangers of underage drinking. With the average age of first alcohol consumption now at 12.8 years old, and with an estimate of 11,000 children trying alcohol for the first time each day, we are assured that there is a problem and early intervention is needed. When our youth are drinking approximately 1.1 billion cans of beer each year and they are also consuming about 35 percent of all wine coolers, there is a problem that needs to be addressed.
One group that is mobilizing to alert people to the problem is the Leadership to Keep Children Alcohol Free, a coalition of governors’ spouses, federal agencies, and public and private organizations. The Leadership is an initiative to prevent the use of alcohol by children ages 9 to 15. We have included the Leadership brochures in your exhibits (Exhibit C), and they include many more shocking statistics about this problem.
We need everyone’s help. The schools, the community, and this Legislature are needed to send a clear and consistent “no use” message to young people. We were very pleased when Mrs. Guinn made her commitment to the Leadership initiative, and we believe that passage of S.B. 205 will send a strong “no use” message from this Legislature.
For juveniles who still choose to drink alcohol, S.B. 205 specifies the same driver’s license sanction and the opportunity for treatment that has been in place under this current statute. Please vote Do Pass on S.B. 205.
Assemblywoman Angle:
I would like some clarification on page 2 of the bill. There is a definition of a minor stating, “older than 7 years of age.” Could you tell me why it does not specify simply someone younger than 21 years of age?
Laurel Stadler:
That verbiage was placed in the bill through an amendment in the Senate and they were concerned that someone 2 years old would be charged with a misdemeanor under this statute. I spoke with Brenda Erdoes, Legislative Counsel, and it was my belief that anyone under 18 would be handled under the Nevada Revised Statutes (NRS) Chapter 62 juvenile statutes anyhow. She explained this verbiage was rather redundant and added at the request of the Senator who offered the amendment.
Assemblywoman Angle:
My second question is on page 1, Section 3, where it says, “impair to any degree.” I know that we have 0.08 driving under the influence legislation in progress. I was wondering how you would define the impairment. We know what the impairment is for a drunk driver, but the wording “to any degree” seems very broad, and I was wondering why that wording was chosen.
Laurel Stadler:
On page 2, line 4, “impairment” for this section is defined. It means any observable signs or symptoms commonly associated with the use of alcoholic beverages. That would be a standard used by law enforcement in determining the impairment.
Assemblyman Sherer:
I have a question on page 2, line 26, where it states, “the selling, handling, serving, or transportation of alcoholic beverages by a minor in the course of his lawful employment.” It was my impression that in most of Nevada it was illegal to sell alcohol if you are under 21 years of age, except there a few places within the City of Las Vegas where a seller is allowed to be 18 years old. Why is that provision in the bill?
Laurel Stadler:
That is existing language for a long time in that particular statute. I agree with you, I thought everyone had to be 21 or older to serve or handle the beverage, but that is not what our state law says. I think there are local ordinances that may supersede that.
Chairman Anderson:
This is an unusual piece of legislation. At first it appears pretty straightforward, but then I am not sure.
Assemblywoman Buckley:
I have a couple of questions to direct toward our legal counsel.
Section 1 of S.B. 205 concerns NRS Chapter 202, which is generally the criminal statute for adults 18 to 21 with alcohol offenses. Minors are generally dealt with under NRS Chapter 62. If that is true, then what will defining minors between 7 and 21 do on page 2, lines 30 and 31? Will that confuse these two statutes?
Secondly, consuming alcohol, for example page 3, line 22, comes under the minor statute. Purchasing, consuming, and possessing is already illegal, so what do we really get by adding impairment?
Risa Lang:
I was just locating where we deal with the minors and drinking in NRS Chapter 62. This defined term of “minor” includes more than just people under the age of 18. It would include 18 to 21. The real minors, 18 and under, will fall under NRS Chapter 62 if they violate a law of this state that would otherwise be a crime if committed by an adult. So, even they would typically be handled under NRS Chapter 62, in order to get to that chapter they would have to have violated one of the ordinary criminal statues, even though it doesn’t say that it pertains to them specifically.
Although it is unusual for us to refer to them in this way, I think it is because those are the only people prohibited from engaging in this conduct. It just provides that it would be violating the law, which would automatically take them over to NRS Chapter 62 in terms of the first part of your question.
Please repeat your second question for me.
Assemblywoman Buckley:
Regarding the first part of my question, it just seems we are making this more confusing than it needs to be.
My second question was, with regard to current issues of purchasing, consuming, and possessing. Is it a criminal act or a delinquent act to prove that a child is in need of supervision and treatment or performance of community service? So, what are we really getting by adding “impairment” from a legal point of view? Are we getting at something I am not seeing yet?
Risa Lang:
Are you referring to subsection 1, where they are talking about consuming? That subsection refers to any saloon, resort, or premises where those things are sold, so I am guessing this would cover some other situation.
Assemblywoman Buckley:
I was really talking about page 3, line 22, in the existing law about a court determining whether a child is an abuser and doing an evaluation and treatment.
Risa Lang:
Section 3, on page 3, deals specifically with minors. Actually, those are the statutes I was just attempting to locate regarding minors and the consumption of alcohol. It does have a cross reference already to NRS 202.020, which is the statute that is being amended in Section 1. It is just clarifying in NRS Chapter 62, what happens when a minor violates that section.
Bruce Nelson:
To answer Assemblywoman Buckley’s question, I think I can best do it with a demonstration. Please imagine I am a minor and I am in possession of alcohol. I am consuming alcohol right now. But, if I finish the alcohol before the police officer sees me, under current law he cannot convict me of anything. Say, I am a minor and I’m pulled over driving with a 0.06 blood alcohol level (BAC). I can’t be convicted of driving under the influence because I am below the 0.10 or 0.08 level and I can’t be convicted of possessing the alcohol because I have already finished it and it is in my system. Senate Bill 205 would allow the police officer to cite the minor who is driving with a 0.06 BAC and hopefully get the minor some counseling, get him to attend a victim impact panel, to convince them that they can’t be using alcohol.
The problem with the current law is that, if the minor is at a party and the cops arrive after everyone has finished their beer before the officer walks in and throws away the can, there is nothing the officer can do to cite them.
Our courts have held that possession does not include internal possession. The consumption statute applying to “consuming” the alcohol is the focus of this bill.
Laurel Stadler:
That is exactly what I was going to say earlier. Lines 22 to 24, on page 3, refer back to NRS 202.020 as the defining area so that is why that particular section is being changed.
I just wanted to clarify one thing Mr. Nelson said. If that minor is stopped with a BAC of 0.06, there is a zero tolerance law where certain sanctions would apply.
Bruce Nelson:
That is correct, he would lose his license, but he would not be committing a criminal offense. The zero tolerance merely results in the suspension or revocation of the driver’s license. It doesn’t allow the court to order the minor to seek counseling or evaluation.
Chairman Anderson:
Ms. Lang, would you please ensure I am reading this properly? I am not impaired if I am under 21 years of age and I am with my spouse who is over 21 years of age. Is that a correct interpretation based upon page 2, line 9? “Impairment in the presence of a minor’s parents, spouse, or legal guardian who is 21 years of age or older.”
Risa Lang:
I think that is intended to be when you are in situations that were discussed before in the privacy of the home. Obviously, it has to be where you are being supervised by a responsible person who is of age.
Chairman Anderson:
I was always under the impression that if the parent was out with their family and provided alcohol such as wine served with dinner, as long as the parent was there, and the minor, under 21 years of age, but over the age of 7 per S.B. 205, and the minor has some of the wine, that it was permissible. Is that still the case?
Risa Lang:
That is what this would seem to indicate.
Chairman Anderson:
And of course, if they are under 7 years of age, it doesn’t make any difference whether they are with their parent or not—is that right?
Risa Lang:
With respect to the age, in NRS 194.010, it provides that children under the age of 8 years are not liable to punishment and apparently that was requested to be added for everything.
Assemblywoman Angle:
Does all the punishment go to the child and none to the parent? Is that correct? I am thinking of a child between the ages of 7 and 12. They have to get the alcohol somewhere. There does not seem to be a provision stating the parent must supervise, or something like that. All the punishment appears to go to the child.
Laurel Stadler:
This particular statute addresses the juvenile law in NRS Chapter 62 as sanctions or opportunities for treatment for the juvenile. I would hope that an adult providing alcohol could be handled under some other statute that would address child endangerment or something, but it is not addressed in this statute.
Assemblyman Carpenter:
Senate Bill 205 states, “Impairment means any observable signs or symptoms commonly associated with the use of alcoholic beverage.” I think there are many people who might act silly who have not consumed an alcoholic beverage, yet that is one sign of someone who has been drinking. It seems this may be rather hard to enforce.
Risa Lang:
I was looking at that yesterday myself. However, if you go back to page 1, of the bill, it does say that the person is impaired by the use of an alcoholic beverage so, even though the impairment is an observable sign associated with the use of alcoholic beverages—to be found liable under the statute it would have to actually be impairment by the use of an alcoholic beverage.
Chairman Anderson:
In other words, if you were impaired because of smoking “that silly weed,” it would have to go under another statute?
Risa Lang:
Yes, it would fall under another statute.
Chairman Anderson:
Thank you, to those presenting S.B. 205.
Jim Nadeau, representing the Washoe County Sheriff’s Office:
We want to go on record in support of S.B. 205. Washoe County has had a county code somewhat mirroring the proposed legislation for a number of years and it has worked fine.
Chairman Anderson:
So, Washoe County feels that since it works there, it will work throughout the state?
Jim Nadeau:
Often things that work in Clark County work well around the state also.
Assemblyman Mortenson:
What happens with fraternities and sororities these days? Do they have a sudden schism where all the young people over 21 are having a big happy time and everyone under 21 is sitting around doing nothing?
Chairman Anderson:
It just so happens I was a chapter advisor for one of the national fraternities before returning to Legislative service. In the early 1990s, fraternities and sororities began to push, on a national level, a policy of no alcohol in their organizations. A very, very, strict alcohol policy is observed. It is so strict, in fact, that the national organization takes the recognition away from the fraternities and sororities for violating it. If you look at the University of Nevada currently, it is trying to make fraternities and sororities 100 percent no alcohol regardless of age.
Assemblyman Mortenson:
That is a dramatic change. No one would have gotten a degree when I was going to college.
Chairman Anderson:
Actually, that is one cause of the move to this. Many people did not get a degree and ended up developing a strong addiction to alcohol as a result of their fraternity and sorority experience. That is kind of another problem.
I hereby close the hearing on S.B. 205 and open the hearing on S.B. 94.
Senate Bill 94 (1st Reprint): Provides for medical treatment in medical facility other than hospital under certain circumstances for certain allegedly mentally ill persons and for medical treatment for certain persons who are under influence of controlled substance. (BDR 39-745)
Janelle Kraft, Budget Director, Las Vegas Metropolitan Police Department; and representing the Southern Nevada Regional Planning Coalition, CPI Task Force:
[Introduced herself.] As many of you are aware, the hospitals in southern Nevada have been experiencing a severe emergency room divert crisis for the last several years.
Chairman Anderson:
If you are speaking to S.B. 94, could you please hold a moment? We have someone here in Carson City from the Research Division of the Legislative Counsel Bureau, we wish to have introduce the bill.
Ms. Lyons, I believe you were the individual from the Research Division who staffed the interim committee for the Senator Raymond Rawson so let me start with you.
Marsheilah Lyons, Senior Research Analyst, Research Division, Legislative Counsel Bureau:
[Introduced herself.] I am before this body to testify on S.B. 94, legislation introduced by the Legislative Committee on Health Care, which I staffed during the interim. As non-partisan staff I do not have an opinion on the measure. However, at the direction of the chairman of that committee, Senator Rawson, I have been asked to provide brief background information regarding this measure and testimony regarding the work of the interim committee related to this measure.
As you know, one of the major issues studied by the interim committee was the issue of emergency room diversion. Testimony related to this issue indicated that a lack of specialty care resources and services for individuals with mental illness exacerbated the divert situation.
Subsection 1(a) of NRS 433A.165, requires that before an allegedly mentally ill person may be transported to a public or private mental health facility, he must first be examined by a licensed physician, physician’s assistant, or an advanced practitioner of nursing, to determine whether the person has a medical problem other than a psychiatric problem that requires immediate treatment. Testimony asserted that at the time of the adoption of this provision, hospitals possessed the resources necessary to carry out the task. However, as the population and the percentage of mentally ill drastically increased, hospitals have found it progressively more difficult to medically clear and transfer the patient to an appropriate mental health facility.
Emergency transporters and law enforcement officials emphasize the impact of limited placement options and followup care or treatment for persons who are chronic public inebriates (CPI) as well as mentally ill persons. As I have already indicated, emergency responders are required by law to transport mentally ill persons to hospital emergency rooms for full medical clearance. In addition, certain agencies also transport CPIs to hospital emergency rooms for medical clearance. Such individuals remain in hospital emergency room beds for extended periods until they become sober or can be transferred to a mental health treatment center if appropriate. In the meantime, rescue personnel and police must wait hours in hospital emergency rooms for these patients.
It was indicated that a vast number of CPIs and mentally ill persons are indigent and are frequently released from hospital emergency rooms without receiving certain followup care or treatment. These individuals continue to cycle through the criminal justice and healthcare systems. Testimony further indicated that the cost for providing care to CPIs and mentally ill patients in hospital emergency room beds is the most expensive care provided.
It was noted that the cost of detoxification services varied from $1,500 per visit or treatment in hospital emergency room departments to $130 per day for care received at certain detoxification facilities. It was further indicated that the estimated cost of care provided to psychiatric patients presented at hospital emergency departments has increased significantly in the past 3 years—from $3,330 million in 1999 to $9 million in 2001. It was indicated that providing emergency personnel with the option of transferring patients who met specific criteria directly to the state mental health hospital or other qualified facility for treatment would greatly reduce the number of individuals with such disorders in emergency room beds for extended periods of time.
After considering several proposals on this topic, members of the interim committee adopted the concept you have before you.
Chairman Anderson:
This particular piece of legislation has been jointly referred to this Committee and of course the bill will then go to the Assembly Committee on Health and Human Services.
I note the nature of the amendment added in the Senate applies to Section 2 of S.B. 94, correct?
Marsheilah Lyons:
I believe that is correct, and Ms. Kraft may be able to speak to that.
Janelle Kraft:
Ms. Lyon’s testimony was a great historical background on the bill. As she stated, we testified before the interim Legislative Committee on Health Care on the need for changes to the statute that would allow an option for police and paramedics to transport these individuals to other facilities besides an emergency room for medical clearance.
We have approximately 13,000 to 15,000 individuals that are accessing our emergency rooms with only 88 beds available at our Southern Nevada Adult Mental Health Facility. It causes a huge backlog of individuals. They are taking up space in the emergency rooms and using valuable resources. It causes the ambulances and paramedics to have to wait in the parking lots of the hospitals with their patients or be diverted to other hospitals, so it literally affects every facility in southern Nevada and every person that is in need of emergency care.
After being assessed, the individuals are left in the emergency rooms, sometimes for days at a time. We have had up to 53 people a day waiting in emergency rooms for mental health care. They are not receiving the treatment they need.
The amendment referred to earlier pertains to Section 2, which allows immunity for ambulance companies, as well as public service agencies, when they are transporting these individuals. That was requested by the ambulance company and something they should probably address in their testimony.
With me is Kathryn Landreth, Chairman of the Southern Nevada Mental Health Coalition, and she is here to provide information about the Crisis Intervention Team that the Las Vegas Metropolitan Police Department recently established and to review statistics available in your packet of information.
We can also take you through the sections of the bill if you would like.
Chairman Anderson:
Ms. Landreth, why don’t you take us whichever way you wish, ensuring we have the necessary information to deal with the critical parts of the legislation? Remember that this is the Assembly Committee on Judiciary policy committee, so your packets were probably delivered to the Assembly Committee on Health and Human Services.
Kathryn Landreth, Legal Counsel, Las Vegas Metropolitan Police Department; and Chair, Southern Nevada Adult Mental Health Coalition:
[Introduced herself and submitted Exhibit D.] Those materials were created by Sheriff Jerry Keller and have been in existence for the past 2 years. We have, as a coalition, over 80 members, representing more than 35 agencies who are involved in dealing with mental health challenges of southern Nevada.
Our principal legislative priorities have been twofold. One is to see that the current state facilities are expanded to meet the growth in population in southern Nevada. Secondly, we want to ensure a workable alternative disposition for people suffering from a mental health crisis, other than the two currently available.
I would like to update one statistic. The problem we are having is with our mental health hospital and the small number of beds available for people in crisis. According to our area hospitals, in March of 2003, there were a total of 1,110 patients who were presented at one of the emergency rooms for mental health crisis. They were held for a total of 21,246 hours. Those statistics represent bed space that could have been used by people with acute physical ailments had there been another place to take people experiencing a mental health crisis.
That brings me to our crisis triage center. We have been fortunate to have a non-profit organization in the Clark County area that has agreed to open and establish an alternative place for people in mental health crisis. Up to this time the officers of Las Vegas Metropolitan Police Department and other local law enforcement have only had two real options. One was the hospital emergency rooms, and as you can see, the result of that has created a substantial problem with long holds and a good number of beds taken up by people with mental health problems.
The second option was that, if the person had committed a crime, and generally it was a minor offense, they could be taken to jail or arrested and booked.
We are proposing a third alternative that Las Vegas Metropolitan Police Department has worked very closely with. That is a drop-off center where police officers who respond to people in mental health crisis can drop someone off. Las Vegas Metropolitan Police Department has currently trained 30 police officers in a 40-hour intensive crisis intervention program where they can respond more effectively in crisis. We will train another 30 in the coming week. Thus, by the end of that week we will have 60 uniformed patrol officers available 24-hours a day, 7 days a week, to respond to people in mental health crisis. We will continue to train officers until a full 15 percent of our uniformed staff have the capacity to respond effectively to people with mental health problems.
It will be difficult to provide the necessary response unless there is an adequate place to take these ill individuals. That is where S.B. 94 becomes critical. We need the authority under state law, rather than to take them to the first two alternatives, to take them to a crisis triage center. Senate Bill 94 provides that ability.
Chairman Anderson:
Have other amendments that have been proposed except the one in Section 2, subsection 4, lines 22 through 27, been agreed to?
Kathryn Landreth:
Yes, I believe so. I gather you are speaking to the amendments that would clarify the meaning of the security toxification unit?
Chairman Anderson:
Correct.
Kathryn Landreth:
We have no issue with that.
Assemblywoman Buckley:
I want to commend the task force for the wonderful work you are doing. The emergency rooms in Clark County are just overwhelmed and this bill represents the hard work of a lot of people. I really appreciate you chairing this task force in addition to your regular work.
Specifically, where will people be taken? Who has been selected to be the contract agency?
Kathryn Landreth:
It was less a case of selection than of one of agency that was willing to step forward and do the work. The only agency that expressed a willingness to do this was Westcare—a non-profit agency in southern Nevada. They are currently renovating a facility on Martin Luther King Boulevard, which will become their drop-off location. As you may know, that is currently the drop-off center for young people and I believe it is their young person facility for runaways. That operation will be moved to another location and Westcare will move this facility into that location.
Currently, they have a detoxification facility in the downtown area, I believe, and they are using that for limited purposes.
Assemblywoman Buckley:
Will the same facility be used for individuals who are under the influence and those who are mentally ill?
Kathryn Landreth:
I believe so, but there will probably be two separate units within that because the needs would be different, but it will be housed together.
Often, as you may know, people present under the influence, and as they become sober it becomes clearer to Westcare that there is a mental health problem, which is really called co-occurring disorder. This will allow the opportunity to address both of those issues.
Assemblywoman Buckley:
Okay, thank you.
Chairman Anderson:
There seems to be no further questions. We all wish to commend you for the work you have done and extend our hopes that this is a successful program.
Lt. Stan Olsen:
There is going to be a request to amend out a portion of the bill by the trial attorneys and as stated by Ms. Landreth, we have no issue with that.
Gary Milliken, representing American Medical Response Ambulance Company:
[Introduced himself.] We are in support of S.B. 94. You have heard the statistics from Ms. Landreth and Ms. Kraft.
From an ambulance perspective, sometimes the crew will remain waiting for up to 3 hours at all the emergency rooms. With the mental health patients, we transport some of these people on a regular basis and it is simply a matter of taking them to the emergency room and in 3 days, if no beds are found for them, they are simply released again. A month later we pick up the same patient again and start the cycle over.
This triage area will give us another option of where to take these people for treatment. We think the treatment will be more appropriate, because currently, we sit in the ambulance for so long and tie up the emergency room. Hopefully this will solve some of the divert problems we have currently.
Chairman Anderson:
There have been some questions raised prior to the hearing relative to the limitation of private provider immunity. It is a little broad reaching in scope. We don’t provide that for ambulance services in other kinds of cases and I am rather curious why we would do it here.
Gary Milliken:
This was our amendment. Part of the reason is, we currently use protocols worked out with the fire department and the police department. When the agency has an inebriant who looks like they may need medical attention, when they call one of the ambulance companies we take him to the emergency room.
We are concerned that as this new option is started there are no protocols for us to follow. From an ambulance perspective, we felt we would just kind of be hung out there transporting these people.
Chairman Anderson:
Thank you for the explanation. Are there further questions relative to the ambulance services?
Maureen Brower, Chairwoman, Westcare Nevada:
[Introduced herself.] I would just like to say that of course Westcare is in favor of S.B. 94 and is already doing a great deal of work to get this moving along.
Assemblyman Conklin:
I have a question about Section 2, subsections 3 and 4. As representative of Westcare, are they immune from all civil liability in pursuit of any action under this bill?
Jim Wadhams, Attorney, Volunteer Board Member, Westcare Nevada:
[Introduced himself.] As Mr. Milliken noted, the ambulance company requested this section. I think the Committee senses it might be a little overreaching and I would happily donate time to work with any subcommittee or the full Committee and all of the agencies to arrive at appropriate language.
But I think the language as you read it does grant blanket immunity and, again, we would be happy to narrow that.
Chairman Anderson:
Thank you for the offer of help. We commend you for your volunteer time.
Is there anyone else wishing to give testimony on S.B. 94?
Victoria Riley, representing the Nevada Trial Lawyers’ Association:
Bill Bradley was going to testify on this bill, but he is currently testifying in the Senate Committee on Finance. We would like to volunteer to work on language addressing our concerns in Section 2, subsection 4 (Exhibit E).
Chairman Anderson:
Would it be permissible to put you down in opposition to the bill?
Victoria Riley:
Yes. We are in support of the entire project and would like to amend out the blanket immunity that Mr. Wadhams referred to. We would like to see something a little more appropriate and we are more than willing to work with anyone to accomplish that.
Chairman Anderson:
Senate Bill 94 is going to be heard in the second committee. I am trying to move it from here to there as quickly as possible so that we keep the essential element.
I would suggest that the Committee amend out Section 2, subsection 4, lines 22 through 27, on page 3 and send the bill on to the Assembly Committee on Health and Human Services. While the bill is making that move it may give the interested parties time to work on additional language to present to that committee.
If there will an amendment coming forward other than that, there will be some compromise language. A work session is scheduled for one week from today in which I plan to consider action on this bill.
I hereby close the hearing on S.B. 94 and open the hearing on S.B. 433.
Senate Bill 433: Revises provisions governing admissibility of certain evidence. (BDR 4-427)
I have submitted written testimony (Exhibit F), which I will summarize.
This bill is simply designed to correct a couple glitches that exist in current laws, specifically NRS Chapters 50, 315, 320, and 325. It is also designed to allow our chemists to save some administrative paperwork when they prepare the results of a blood test. Tracy Birch will talk in more detail about the report part of the bill.
Essentially, we are adding the word “report” so that the chemist can now prepare an affidavit, declaration, and report. The reason we are doing that is that under current law, if we have two chemists perform two separate blood tests, they both have to do a separate declaration. This change will simply allow the two of them to place their findings into one report.
What I want to emphasize is that the bill will, in no way effect the type of testing they perform or the safeguards. It will simply affect the method to report their results. Also, it will not change the rights of the defendant in any way.
Currently, when a chemist is testifying in a driving under the influence case, whether it is a felony or misdemeanor, we, the state, can send the defendant a notice that says we will use the chemist’s affidavit. If the defendant responds and demands the chemist be present to testify, the state must call that chemist as a witness. This bill is not changing that. It is simply a change to make it administratively easier for the chemist to prepare their findings.
The second part of S.B. 433 addresses the declarations that we can currently use as set forth NRS 50.315. The problem with these declarations—and in testimony I will focus on the nurse’s declaration, but it is applicable to all the declarations—are that the current law does not allow the nurse to state in her declaration those things she needs to state for her testimony to be relevant in court.
Currently, the nurse may state in her declaration that she is a nurse, that she drew blood from Mr. Defendant, and that she gave the blood to Mr. Police Officer. The problem is that one of the things it is necessary to prove, pursuant to a separate statute, is that the nurse is authorized to draw blood. Obviously, she is, or she would not be a nurse. However, under current affidavit statute she can’t state that information in the affidavit. When the nurse draws blood for alcohol content, she uses a betadine swab rather than an alcohol swab. Under current law, she cannot place that information in the affidavit either.
The practical result, under present law, is that the defense can say, “Well, your nurse can only testify that she is a nurse and drew blood from the defendant and gave it to the police officer.” She can’t testify by way of declaration to those things. As a result, the nurse must be brought in to testify in every driving under the influence (DUI) trial. This creates a real burden on our nurses.
The Committee heard from the last bill of the problems in emergency rooms. If the defendant goes to the emergency room when the blood is drawn, that nurse must then leave the emergency room to go to court to testify to those simple statements.
If a nurse is working at the jail, where most of the DUI blood draws are done, that nurse must leave the jail to give her testimony. Not only do we have to pay that nurse for going to court, we have to pay for, and find, a substitute for the jail. In rural counties the situation is even worse because the nurse may have to drive 200 or 300 miles to get to the justice court to testify.
Originally, NRS 50.315 was enacted because it was recognized that the nurse’s testimony in a misdemeanor case is simply administrative, and not subject to challenge. The nurse, unlike the chemist, is not testifying to something that is reasonably subject to challenge. If the defense, under current law in a misdemeanor case, can establish that there is something about the nurse’s declaration that doesn’t look right—the buzzword in the statute is, “there is a substantial and bona fide dispute”—then the defense can compel us to bring in the nurse to testify. In a felony case, the defense can compel us to bring in the nurse without any reason whatsoever. They can simply say, “We want the nurse there.”
These changes are going to allow the nurse’s declaration to reflect what it needs to reflect to make her testimony relevant in court, but it is not in any way changing the defendant’s ability to have the nurse appear to testify. We deliberately left those requirements the same.
[Bruce Nelson continued.] Senate Bill 433 also does not expand who can draw blood. There is a limitation in NRS 484.393 as to who is allowed to draw the blood. That is still limited to nurses and certain other persons. We are not changing anything substantive. We are simply adding some of the things that were inadvertently left out in NRS 50.315, 50.320, and 50.325, as enacted.
The bill will end some of the game playing that occurs in courts because the defense has no reasonable challenge that they can make to the nurse unless they have some issue they have discovered, in which case they can compel us to bring the nurse in anyway. The defense loses nothing by the bill.
Tracy Birch, Manager, Forensic Laboratory Chemistry Criminalistics, Las Vegas Metropolitan Police Department:
[Introduced herself.] I am here to testify on behalf of the Forensic Laboratory in support of S.B. 433, specifically, the portion adding the use of a report format.
Currently, each analyst in the Forensic Laboratory is required to submit a first-person declaration or affidavit detailing the results of their analyses. Senate Bill 433 is intended to provide another option that would allow a report format to be used and admitted for court purposes in addition to the use of the affidavit or declaration format already in existence.
Often, in the laboratory, there is more than one analyst working on a single specimen, such as blood. The specimen may require blood alcohol analysis and analysis of several different drugs that may be contained in that blood sample. More than one analyst performs these analyses, and currently they result in the generation of several first-person declarations, each detailing the analysts’ conclusions.
The addition of the report format as proposed in S.B. 433 will allow more than one analyst to have their results contained in a single document. This will benefit the laboratory, as well as the end user of the report, by providing results in a less cumbersome and succinct one-page document.
Assemblywoman Buckley:
I am rather a traditionalist lawyer so I prefer an affidavit format if the person is not present to testify. That provides someone to swear that it is true. Why can’t we just update the statute if that is needed; and why can’t the chemists do a pre-printed report with “State of Nevada, County of Clark” at the top and a signature line under perjury at the bottom? It could be made user-friendly and “swear that the results that are attached hereto are true” and then staple the results. That way we still retain the reliability of an affidavit form and have somebody swear on penalty of perjury.
Bruce Nelson:
We are using pre-printed declarations to a certain extent. The problem with the declaration is this. Let’s say you have two chemists; one tests for marijuana and one tests for cocaine. At the bottom of each declaration the chemist has to swear that the foregoing is true and correct. The problem is that the chemist who analyzes the cocaine can’t swear that the marijuana is correct because they didn’t test that and vice versa, so two declarations have to be generated.
With S.B. 433 there will be one report that will still be sworn to under penalty of perjury. On page 2 [of the bill], when there is a multiple report, each person who prepared the report still has to sign it. It will still be done under penalty of perjury.
Assemblywoman Buckley:
If everyone is signing as to what is within their personal knowledge, and everybody would still be signing as to their personal knowledge, why get rid of the affidavit?
Bruce Nelson:
We won’t be eliminating the affidavit. If we have a case where there is only one test we will still use the affidavit or declaration formats. The report is simply designed to cover three or four chemists at the same time instead of having them generate three or four affidavits. They are still signing; it is just that they are creating one document. The secretary won’t have to type up four affidavits.
The current method of testing is that when there is a DUI test, two tests are done. The first test tells them what drugs are present. Then each chemist will do a separate test where they confirm that drug is present and determine the amount. One chemist will do a test for marijuana and one will do a test for cocaine. They do those tests at the same time with each chemist doing their own thing because they use different processes and chemicals to test for each drug. It is simply easier for the crime lab to run 10 marijuana tests in a row, rather than having the same chemist run the marijuana test, then put all that away and run the cocaine test and then start over. It poses a better division of labor and the report is simply reporting that division of labor. Instead of preparing five documents, we prepare one.
Tracy Birch:
The current format of the declaration affidavit is prescribed in the Nevada Administrative Code (NAC) and it is in the first-person format so each analyst who works on a single specimen—we are talking about a DUI arrest, where there has been a request for the lab to do an alcohol analysis and a drug screen. Currently in our laboratory, and I believe in the Washoe County laboratory also, there is one chemist who does the blood alcohol test, then the sample is transferred over to the toxicology section of the laboratory, where the same sample is tested for drugs of abuse.
We may screen that sample positive for THC (tetrahydrocannabinol), cocaine, and perhaps PCP (phencyclidine). I may have three different analysts working on one single sample, so three different reports will go out on that one sample with the same case number.
By the use of a report in certain situations where that happens, instead of sending reports to the police agency and also to the prosecutor under three individual declarations because they must be in the first person, I have the option of sending a report that will contain the same information as an affidavit or a declaration, but it would not be required to be in the first person. It would list all of the results, the analyst who did the analysis, and it would be reviewed by an administrative person in the laboratory.
Assemblywoman Buckley:
That makes it clearer. I am still concerned that before we deprive someone of their liberty, someone should still say they are swearing it is true. But that is more of a legal than an administrative issue. I can understand why it would be easier to do one report.
Chairman Anderson:
Let me take the prerogative of the Chair because I am having a little problem here. Currently, the person who is going to give the test would have to ensure that the equipment that was used met the criteria of the Nevada’s Department of Public Safety; that we knew that the equipment was properly calibrated; and there was an affirmative statement from the person who conducted the test that the equipment was in such a condition. Is that correct?
Bruce Nelson:
Yes, sir. That is correct.
Chairman Anderson:
Since I have one person who is being charged and I have all these different samples that are being tested, assuming that that person is the only person I am testing, I would do one test and then go to the next piece of equipment and do whatever the next test was that was required and ensure that piece of equipment was accurate and the test was conducted. I would do the affidavit that the equipment was correct, the test was done correctly, and the results of that test were all correct. I would also state that since it had all been done on correctly monitored equipment by a single individual, the affidavit would be substantial and I would sign my name to it. Would that be the perfect world if I had one, and only one case I was dealing with?
Bruce Nelson:
Yes, if you had only one case you were dealing with that would be correct. That would be contained in the affidavit or declaration and that information must still be contained in the affidavit or declaration even under the provisions of S.B. 433. We are not making any changes in the laws regarding machine calibration or running test samples. In a DUI breath case the officer still runs the simulator solution through the machine before he tests the defendant. That simulator solution has a known alcohol value and the machine must read that known alcohol content correctly before the officer can give the defendant the breath test. If it does not read properly, the machine is not working properly and the breath test is invalid. In that situation the defendant would be given a blood test.
Chairman Anderson:
So is what we are looking for now the economy of scale? Is the gist that we are compartmentalizing because we are doing several blood samples and several different urine and breath samples? Since I have so many tests going on with similar substances, do I not stand a greater chance of mixing the samples, by defendant, than I did when I was working one sample all the way through?
Tracy Birch:
I think there is a little bit of a misunderstanding. Our testimony is to one blood sample that has several results. That blood may contain alcohol; it may contain cocaine, PCP, and THC, the active ingredient in marijuana. So it is multiple drugs and/or alcohol in a single blood sample that will be reported out on a single report. With the report, I can put all the results on a single sample in one report format.
Chairman Anderson:
Even though it had not been done by the same analyst?
Tracy Birch:
There will be a person who will possibly testify and also put in the report that they did the analysis. Each test uses a different method that is validated independently in the laboratory. The analyses for the different drugs can happen at different times by different people, but it is all happening on one blood sample.
Chairman Anderson:
Who would I know to call if I doubted one of the test results on the multiple test results reported?
Tracy Birch:
The template of the report will be designed and approved by the Committee on Testing for Intoxication and will be detailed under the NAC, but the report will identify the substance, the amount, the date of the analysis, and which analyst did that analysis will be included. You will know which one did what analysis.
Chairman Anderson:
Even though it is currently in state statute? So, what we are doing is taking it out of black law and moving it over to administrative code where we will no longer see it except through the Legislative Commission?
Bruce Nelson:
The administrative code will set up the format of the report, but the black law will authorize the report; and the report will definitely make clear which chemist performed which analysis. Say you agree with the marijuana and cocaine but object to the PCP—your client tells you he wasn’t under the influence of PCP. You can call in the one chemist or demand that the state produce that one chemist and the state would have to do so.
In whatever format is adopted for the report by the Committee on Testing for Intoxication, it will be clear which chemist did which analysis and what safeguards they followed. That part of the requirement is not being changed by S.B. 433.
Assemblyman Carpenter:
Why are all the sections on pages 2 and 3 being deleted that discuss the Nevada Department of Public Safety certifying that the breath test machines are working? Also, the sections with the certifications from the Committee on Testing? That seems to be good safeguard.
Bruce Nelson:
Those sections are not being deleted, but are simply being condensed. Notice the language used. “Any fact relevant to the testing of another’s breath.” Under current law, the Nevada Department of Public Safety must certify a breath machine. It is being taken out of this subsection, but the law that requires a breath machine to be approved is still in effect. The fact that the breath machine is approved is a fact relevant to the testing of a person’s breath.
In other words, say I tried to give someone a breath test. Obviously, I am not certified to do that test, therefore, my declaration would not be admissible and the defense would certainly object and make me go to court and explain what I thought I was doing.
The language is being taken out of the subsection and condensed into the “any fact relevant” language. The other statutes that require the breath machines to be approved and the person who gives the breath test to have been certified, the breath machine to be calibrated every 90 days, or the simulator solution to be run through a breath machine before a valid test is done, are not being affected by this statute. They are in separate statutory sections.
Assemblyman Carpenter:
To make sure I am clear, you said they are placed somewhere else in law?
Bruce Nelson:
Those statutes are contained in NRS 484.386 through approximately NRS 484.393. Those list the requirements for the breath machine. They require that the breath machine has to be adopted by the Committee on Testing for Intoxication and then the Committee, through the NAC provides a list of what breath machines can properly be used. If a test were given with a machine that was not certified, it would not be considered valid because of the statute contained in NRS 484.388, not because of NRS 50.315. In this section, the language that is being deleted is reflected in other statutes and was simply placed in this statute to show what the affidavit should contain.
The problem is that some things were left out, particularly with regard to the nurse’s affidavit, such as the fact that she is a nurse and that she is qualified to draw blood. I can give you a specific example. The statute that says only certain people can be allowed to draw blood and that they be allowed to draw blood by their appropriate agency is found in NRS 484.393 (1)(a). The bill is not affecting that. The same requirements apply; this simply makes it so the declaration can declare they are allowed to draw blood.
Assemblyman Mortenson:
Are there occasions when different analysts will analyze for the same substance? In other words, would it happen where two or three analysts would test the same sample for blood alcohol?
Tracy Birch:
I typically have an analyst assigned to doing a “batch” of blood alcohol tests consisting of approximately 35 samples in one batch, and, providing all her standards and controls are accurate, that would be the only time the alcohol analysis would be done on that sample. It would only be done once and reported.
Assemblyman Mortenson:
So, one analyst will do that batch with multiple samples and then combine them and make one report?
Tracy Birch:
One analyst will do the blood alcohol analysis on a vial of blood in duplicate and report out her results. If a drug screen is requested or the analysis reflects a zero blood alcohol, it automatically moves to the toxicology section for a drug screen. At that time, there may be several analysts doing analyses on that single blood sample, depending on what it screens positive for.
Assemblyman Mortenson:
But they are doing it for different materials? Only one analyst does a specific test such as blood alcohol content?
Tracy Birch:
That is correct.
Chairman Anderson:
I am having a little problem with this bill in terms of the signature question. On page 3, line 40, it states the report “may” be signed by such a person and combined into a single report containing the report. There is no guarantee either here, or on page 4, line 39, which says, “the report of any person described in Section 1 may be signed by such a person and combined into a single report.” The language is permissive rather than a requirement by using the word “may” instead of “must.”
There does not appear to be a guarantee that the person who actually did the test is going to be the person signing the report. Potentially, the report will be sent on to the court?
Bruce Nelson:
On page 2, lines 1 through 6, it indicates, “if the report is a single report containing the combined reports of persons described in subsections 1 through 5, each report from such person must be signed by that person and the single report must be signed by the laboratory director.” In other words, if multiple chemists combined in one report, each chemist is still going to have to sign that report.
Chairman Anderson:
That is the reason I was noting the inconsistency with the language on page 3. I didn’t understand.
Risa Lang:
I think it is just a “may” indicating that it can be combined into a single report. It is not so much referring to whether or not the report has to be signed.
Chairman Anderson:
I want to ensure that if we are going to do this, that whoever does the report has signed some sort of a statement that they have followed the procedure and everything is as it should be. Because we must use the forensic evidence carefully so that there should be no technicality that lets someone off in a case because someone did not initial or sign a proper document.
Assemblyman Geddes:
I have had some laboratory experience and this practice is very common where you have the laboratory director sign off on the final report and take the final responsibility that all the procedures and protocols were followed. When the laboratories go through the certification process, and they go through their annual certifications by the certifying agencies, their standard operating procedures and how they perform all these tests are reviewed.
The quality assurance documents for their calibration schedule, how those calibrations are doing, their calibration criteria are all reviewed. The qualifications of all the chemists are reviewed and once a sample gets into the laboratory, all the way through the process there is a chain of custody, documentation, and review policies are all scrutinized.
Thus, at any point, if any piece of data was called into question, it can be tracked all the way through the laboratory. When the laboratory director signs that final report, they are attesting that all those procedures have been followed and are in place. The chemist’s name will show up on the final report. It can be tracked all the way through the laboratory, and they are swearing that all of this is true and accurate all the way through the system.
Beyond what is in the bill, the procedures that laboratories go through have several safeguards built into the system that will help assure this and are in the background of what is being discussed here today.
I see S.B. 433 as a real benefit from the legal and law enforcement side whereby they will receive a much simpler report that will give them the data they want to know. Did this person fail for drugs or alcohol—yes or no? That will show up in a very simplified report that they can look at with all the supporting documentation attached. I think this bill will help everybody in the process, especially the people trying to understand the current reports. They can be very complicated and difficult to read.
Chairman Anderson:
I appreciate that, Assemblyman Geddes. The reasons those procedures have come to be is because someone had the experience where they could not prove that the chain of evidence was kept in place. Therefore, having been burnt, they don’t want to be burnt again.
One of the questions I was going to have was as to the chain of evidence being dropped in lines 18 and 19, of subsection (c), on page 3; the fact that the affiant or declarant kept a sample in his sole custody or control. How are we going to maintain that?
The other part that concerns me is that while we have everything in the NRS in all the law offices, instead of looking laws up on the computer, the NAC regulations are not as readily available or kept up-to-date as quickly in the law offices. It is a matter of use.
Bruce Nelson:
The chain of custody remains the same. Normally in a blood case, the nurse will draw the blood, place it in a vial, hand it the officer. The officer will seal the blood and put it in a locked refrigerator at the jail. A runner, or someone from the lab, will come out and take the sample to the lab. In Clark County, I think the lab is within 1/2 hour of the jail.
When it gets to the lab it is checked in and eventually it goes into a secured facility there. When the chemist is ready to work on it, they come and pick it up. The runner fills out a declaration that attests that he/she is the runner for the lab and that they picked up of the sample from the locked refrigerator at the jail and transported it to the lab and placed it in the secured facility. That is still all open to challenge by the defense if they wish to do so. There are normally no chain-of-custody issues in a DUI case because it has been simplified to that point. Unless someone hijacks the runner’s car on the way to the lab and steals the blood sample, it can’t be contaminated because it is sealed almost as soon as it is drawn. When it arrives at the lab, one of things that must be attested to before the blood is tested is that it was still sealed. It is sealed in the tube and then the tube in a cardboard box that is taped with evidence tape.
Tracy Birch:
Each analyst who performs an analysis on the vial of blood inside the kit reseals the box after their analysis and signs the chain of custody on the outside of the box. Then the next analyst would have to break that seal and reseal it again when they were done. We audit that in our laboratory as well.
Chairman Anderson:
Before, the affidavit could only be used to attest to those four things that were present. Now the affidavit can be used to prove any relevant fact that could come forward.
Bruce Nelson:
Yes and no. It is any fact relevant to the receipt and delivery of the sample of blood, urine, or other tangible evidence. The runner’s affidavit could not state that while I was carrying the sample out to the lab, I put my hand on the box and determined there was a 1.5 blood alcohol level because that is not relevant to the delivery of the box.
Each person who does something is still limited to testifying only to facts relevant to their area of expertise such as the delivery of the box, the calibration of the breath machine, or simulator solution.
Also, I would note, in a blood case, we always draw two tubes. One is tested and one is left sealed, so if the defense wants to do a retest, they have a sealed unit they can take to their own lab and have tested.
Chairman Anderson:
Are there any other questions for Mr. Nelson or Ms. Birch? Seeing none, is there anyone present to testify in opposition to S.B. 433?
I am presenting to the Committee an e-mail from JoNell Thomas, sent to me yesterday in opposition to the bill (Exhibit G).
James Jackson, on behalf of the Nevada Attorneys for Criminal Justice (NACJ):
[Introduced himself.] I had hoped some of the other practitioners and members of the group could be present but that was not possible.
The NACJ is opposed to S.B. 433 as written. Mr. Nelson described this as a bill to fix a glitch. I would suggest if there is a glitch, let’s fix the glitch and not throw out the hearsay rule. As we see it, this is another step to adversely affect the hearsay rule. Hearsay is generally disfavored by the courts and is something that prevents, by virtue of something being authored, a full opportunity for the other side to have a review and cross-examine something.
With regard to Mr. Nelson’s comments, however, if we have a problem with the nurses being required to go to court, then let’s fix that problem and allow them to present that information by affidavit and get to the specific problem.
I would have to agree with Assemblywoman Buckley in her comment about being somewhat a traditionalist lawyer. I, and most of the members of the NACJ are as well, in that, if something is going to be offered into evidence, let’s make sure it has some safeguards and assurances. As we read this bill, if a particular analyst reviews a sample and submits a report there is no requirement that that particular analyst sign attesting to their results under penalty of perjury. It does allow for the laboratory director to certify in a general sense what has been stated. We don’t believe that goes to what was intended under the purpose of the statutes under NRS Chapter 50. When the use of affidavits was originally considered in the 1997 Legislative Session, there was, of course, concern expressed by the defense bar that this was the first step down a slippery slope taking away the rights on confrontation and allowing things to be presented by documentary evidence that could not be otherwise challenged.
As we view S.B. 433, it appears to state that this could be used for any purpose up to and including a trial, and only at trial can the other party object to the use of that document for those purposes. Our greatest objection is that it takes away the right of cross-examination.
Concerning Assemblyman Carpenter’s comments that this bill removes all the attesting requirements currently in place, if we are going to expand this to the use of a hearsay report, then we ought to make sure all those required items are still contained in the document. While I appreciate the assurances of Mr. Nelson that the broad language of the current proposed bill, “that any fact relevant to the receipt and delivery of the sample of blood, urine, or other tangible evidence,” is present, it is very broad language, but even at this, is it inclusive enough to ensure that the specific things considered by the Legislature and that the Committee on Testing has said has to be in those affidavits are present? I would submit to you that if they are there, then it may very well stop the game playing he is concerned about. Let’s be sure that if all those “t’s” are crossed and “i’s” dotted it may obviate the need for there to be any challenge to any aspect of the testing.
Finally, with respect to the use of the single report, as I read the bill, it does not require the individual testing analyst to swear under penalty of perjury that their testing was done according to what the law currently requires. We think that is an absolute and necessary safeguard and would ask that aspect to be considered if this bill is to move forward.
Chairman Anderson:
Mr. Jackson, do you not think that on page 2 of S.B. 433 the “must be signed by the person and the single report must be signed by the laboratory director” is sufficient safeguard for the information required?
James Jackson:
As I read that portion of the bill, it certainly requires that they sign it, but it does not require that they sign it under penalty of perjury.
Bruce Nelson:
We believe that they would have to sign the report under perjury. However, if we wanted to perhaps add specific language of, “laboratory director, the report shall be signed under the pains and penalty of perjury,” that would certainly make it even clearer than it is currently.
The confrontation issue has already been addressed by the Nevada Supreme Court, which has that these reports are admissible regarding the confrontation or heresy issue.
Chairman Anderson:
You are suggesting adding the language at page 2, line 6, Section 1, of S.B. 433?
Bruce Nelson:
Yes. We could add the phrase, “under penalty of perjury. The combined report of the persons described, each report must be signed by that person, and a single report must be signed by the laboratory director, under penalty of perjury.” Or you could make it, “in the same manner as an affidavit or a declaration,” to make it even clearer.
Chairman Anderson:
So, you are making some suggestions to our bill drafter to draft the proper language so that there is an assurance from the Committee that the affidavits submitted to the courts are true and meet the criteria of law as currently applied by the Supreme Court?
Bruce Nelson:
I already believe the assurance is in the bill, but for the comfort of others, this suggested language would make it clearer.
Chairman Anderson:
That may relieve the concerns of some of the members of the Committee. I still have a little concern regarding the “must” and “may” language.
Mr. Jackson, I was concerned about the questions we were removing relative to the calibration of the equipment used in the blood alcohol tests. What are your feelings about that?
James Jackson:
That goes back to my prior point. We don’t believe that those requirements should be removed. They should remain in each and every report that is drafted and signed by the laboratory director. To me, it doesn’t seem inconsistent to keep those things in there and keep the language that has been suggested, “and any fact relevant to the withdrawal,” in Sections 2 or 3.
Chairman Anderson:
Section 2, lines 18 through 26.
James Jackson:
All of the areas that have been deleted in this bill, but have been previously required under the law, to be included in any affidavit or declaration, we believe should also be included in the report.
Chairman Anderson:
I take it you wish to see no action taken on S.B. 433?
James Jackson:
Mr. Chairman, if this bill were to die a slow but painless death, it would be fine by the NACJ.
Chairman Anderson:
What about the chain of evidence? Do you consider that to be essential also?
James Jackson:
Absolutely. We need to know who it has been with and where it is going.
Assemblyman Geddes:
I don’t think the bill will change the way anything is handled in the laboratory if we kill the bill or if we make the amendments. I think the laboratory is going to follow the procedures and protocols to the letter of the law. The only effect would seem to be on the final report made by the lab. I think we have false assurances based upon what is sitting here in the letter of the law. There is so much behind all of this that we are not discussing that maybe the affidavits should be placed in law, if that is a concern.
Did this chemist graduate? Is that a requirement? Sign off on that. Were the standards good? Was the cocaine standard valid for calibrating that instrument? There is a whole list of issues taking place behind the scene that could completely invalidate the data that are not being required in the law. There are a few things in the bill that would make us feel better about that report, but there is so much behind what is going on here that we are not attesting to that the general statement, “this is good data,” covers. We may feel better but it is not going to change the data in my mind one way or the other.
When I was a laboratory director and was signing off on these combined reports, I made sure I reviewed everything in there; all the QAQC, (quality assurance, quality control), because I knew I was the first person up on the stand when a lawsuit came about. I also made sure every chemist in that lab signed off on what they were doing, as well as their supervisors. I had a good paper trail so that if I was brought up on the stand I had full confidence in that data and that all my people had full confidence. If I didn’t feel confident about the data, I sent it back to the laboratory and I made them review it all again.
Just the volumes of data we look at as far as the quality control procedures, calibrations, standard operating procedures; all of that is not considered here at all beyond this statement. The suggested amendment language doesn’t change my comfort level one way or the other, because it is those procedures behind the scene that raise my comfort level. The certification and that the laboratory director is ensuring that everything is being followed are some of those. That is what gives me the confidence.
Chairman Anderson:
As a forensic examiner in Clark County, how do you perceive the assurance of equipment calibration as an essential element?
Tracy Birch:
Currently, when they are talking about calibration, they are talking about calibration of breath testing devices for alcohol in this statute. Maybe it will help if I explain one of the problems we have had in the past pertaining to how this law is written. It has to do with the affidavits and declarations being admitted into court and one of the problems I had. When I was doing breath alcohol calibrations for the southern half of the state, one of the requirements in the NAC is that you must be a forensic analyst of alcohol, certified by the state of Nevada. Hence the declaration or affidavit where it says on page 2, Section 3, about the calibration of breath testing devices. All it said was that the affidavit could contain the occupation of the affiant, the date the calibration was performed, and the period of time it was operating properly. It didn’t require it to say that you were a forensic analyst of alcohol. But that is required somewhere else in the statute. There was a problem of admissibility of the affidavit because it was required, but didn’t state that requirement in this section of the statute. That is one of the reasons why Mr. Nelson has added the language, “any fact relevant” to prevent that from happening.
Pertaining to analyses in the laboratory, it is correct that we have a lot of quality assurance and quality control factors that we have to comply with in the process of being accredited by the American Society of Crime Lab Directors. We have protocols we follow and none of that is detailed in this statute, but they are followed. As a manager, I make sure that every report I review contains all the data and all those requirements that fulfill our protocols in the laboratory.
Chairman Anderson:
My legal adviser has reminded me that NRS Chapter 484 sets out the requirements and qualifications for the persons who would be performing the exams and therefore are not necessary in this particular section of the statute. They are specifically detailed in NRS Chapter 484.
Bruce Nelson:
That is correct. Again, realistically, if I got a report that was done by Bill’s Radiator Shop, that is not going to do me any good in court. The defense is going to object to it and the judge is not going to admit it. So, these safeguards from the legal point of view have to present or the report that I presented is useless and the defendant escapes conviction. Obviously, I don’t want that, so I am going to make sure the lab follows the protocol, and the lab is going to make sure it follows the protocol, and the defense bar is there to make sure we are both right.
James Jackson:
I agree with Assemblyman Geddes that we could probably not craft a statute with all the requirements that would comfort everyone. My point was that, by keeping in that basic and rudimentary information and allowing the affidavit and the report, if we are going to go that direction to include any other fact relevant to the testing, then we can come up with something as broad as the lab wants to make and that provides as much information as can be provided to the prosecution, the court, and the defense, and maybe we can obviate the need for calling in some of the witnesses.
Chairman Anderson:
Seeing no one else wishing else to testify on S.B. 433, I will bring the bill back to Committee. If the bill does move forward, we will ask the Legal Division to be prepared to draft the suggested amendments that Mr. Nelson has stated he would agree to.
Having no further business before the Committee, the meeting is adjourned [at 10:56 a.m.].
RESPECTFULLY SUBMITTED:
Cindy Clampitt
Transcribing Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: