MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
April 3, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:00 a.m., on Thursday, April 3, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark E. Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Valerie Wiener
Senator Terry Care
COMMITTEE MEMBERS ABSENT:
Senator Dina Titus (Excused)
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Jo Greenslate, Committee Secretary
OTHERS PRESENT:
Judge Daniel P. Ward, Justice of the Peace, New River Township, Churchill County
Susan J. Meuschke, Lobbyist, Nevada Network Against Domestic Violence
Nancy E. Hart, Deputy Attorney General, Civil Division, Office of the Attorney General
Elizabeth Neighbors, Ph.D., Director, Lakes Crossing Center, Division of Mental Health and Developmental Services, Department of Human Resources
Ed Irvin, Deputy Attorney General, Human Resources Division, Office of the Attorney General
Dorla M. Salling, Chairman, State Board of Parole Commissioners, Department of Public Safety
Richard Varner, Deputy Chief, Division of Parole and Probation, Department of Public Safety
Gene Munnings
John A. Wardrobe
R. Ben Graham, Lobbyist, Nevada District Attorneys’ Association/Las Vegas, Washoe County Sheriff’s Office
James F. Nadeau, Lobbyist, Nevada Sheriff’s and Chief’s Association/North
Laurel A. Stadler, Lobbyist, Mothers Against Drunk Driving - Lyon County Chapter
Bruce W. Nelson, Deputy District Attorney, Vehicular Crimes Unit, District Attorney, Clark County
Chairman Amodei:
We will start the hearing with Senate Bill (S.B.) 398.
SENATE BILL 398: Makes various changes to provisions concerning certain protective orders. (BDR 3-611)
Judge Daniel P. Ward, Justice of the Peace, New River Township, Churchill County:
I am currently the president of Nevada Judges Association. I am here to represent the association on S.B. 398, a bill designed to clean up protection orders. Currently, four types of protection orders exist in the State of Nevada: A protection order for domestic violence; a protection order for violence in the workplace; a protection order for stalking; and a protection order for harassment. There is disparity in penalties in regard to violation of these orders. Currently, violation of a domestic protection order is a misdemeanor. Violation of a workplace protection order is also a misdemeanor. Violation of a stalking or harassment order is a gross misdemeanor. The first offense without an extended order is a gross misdemeanor; an extended order violation would be a category C felony.
We would like to see the language cleaned up to make the penalties uniform across the board. Currently, if we have a domestic order in place, and we have an adverse party who has a significant other, and they get into a situation where the applicant is confronted, the significant other could be charged with a gross misdemeanor, but the adverse party would only be charged with a misdemeanor. If the penalties were consistent across the board, I believe we could serve our victims better.
The workplace order is typically issued for 15 days. In order to extend it, we must have a hearing. Generally, the protection order would expire before we could get the hearing set, leaving potential victims unprotected for a period of time. We would like to clean up the language to make it consistent with what is in the other protection orders so we do not lose jurisdiction and we can keep the victims protected. I am taking Las Vegas Township, Department 6, Justice of the Peace Nancy Oesterle’s notes and condensing them rather than reading 19 pages of testimony (Exhibit C. Original is on file in the research library.). One other issue we have with S.B. 398 is the word "intentional" versus "accidental" violations. Judge Oesterle draws an analogy to adverse parties at a University of Nevada, Las Vegas, football game, leaving with thousands of others and encountering the applicant. Is it an accidental violation or is it an intentional violation, subject to punishment under our current statutes? I do not have those types of problems in Fallon, per se. If there is a violation, it is usually intentional, because everybody knows everybody else in Fallon.
The final change contemplated would be the sealing of protection orders. Currently, Nevada Revised Statutes (NRS) 179.245 allows the sealing of criminal orders, but not civil actions. There is nothing in NRS addressing sealing of civil proceedings. I only received Judge Oesterle’s testimony yesterday, and I was in the hall with domestic violence advocates trying to figure out what we can do to fix this bill. I do not know where we are, and I will leave it in your hands.
Susan J. Meuschke, Lobbyist, Nevada Network Against Domestic Violence:
I am the executive director of the Nevada Network Against Domestic Violence, and I am not here to oppose or support S.B. 398. I have a lot of questions about what this bill will ultimately do in terms of orders for protection. Why seal records, and why the 5-year time frame? When an order expires, it expires and, theoretically, it goes away. Truly, all court records are public records, and are always available, but they do not live on any electronic registry after expiration, in my understanding. Another concern is if there are criminal activities during the 5-year period, there was no mention of whether other protection orders would be considered in terms of sealing a record. It was not clear whether there would be any attempt to look outside the jurisdiction or if that could even be done in terms of looking at types of violations. We wondered why “intentional” was added to the bill. I believe Judge Oesterle explained it in a way I understand, so that question was answered.
There were other questions regarding a change to the arrest section. There is legislation currently in process that would allow for orders for protection to be enforced 24 hours a day, 7 days a week, on a misdemeanor basis, and our assumption was removal of that language just had to do with the fact this was going to become a gross misdemeanor or a felony. Another concern is we support stiffer penalties, but in conversations with prosecuting offices, there have been concerns expressed around gross misdemeanors being a difficult class of crimes to prosecute or ones the courts do not prosecute. I am not clear what the issue is, but several years ago when we looked at increasing penalties on domestic violence battery, it did not happen due to that concern. I believe there are other issues around just the courts Ms. Hart would like to address.
Nancy E. Hart, Deputy Attorney General, Civil Division, Office of the Attorney General:
I would like to state the attorney general’s office also does not have a position on S.B. 398. I came primarily to listen to the proponents talk about the purposes of the bill and explain some of the provisions. Like Ms. Meuschke, I have questions about the provisions provided for. I believe Ms. Meuschke has expressed most of them, but I would like to highlight a couple of my concerns. In terms of record-sealing, I believe, in passing any law, it is important to understand the reason for passing it. In the work I do, obviously a protection order that remains in effect has ongoing consequences people have concerns about. The federal firearms disability kicks in if you have a current extended order. There are possibly employment-related questions being asked about current things in effect. To my knowledge, those do not exist for expired or vacated orders.
Again, I come back to what essentially is the purpose for sealing records? In particular, if one seals protection orders in family matters where custody may be in dispute several years after a protection order, I am sure you are aware there is a presumption of custody against the person who has engaged in domestic violence. If that order is now sealed, it is not part of what the family court could consider in deciding custody matters. There may be valid reasons, but we would like to hear what those are before deciding whether sealing is an appropriate thing to do. I also have questions about the 5-year period. It is difficult to know how it relates to the regular 3-year period of limitations for sealing regular misdemeanor records, and the 7-year period for misdemeanor domestic battery. Five years is between three and seven, but no specific reason was given for five years as opposed to something else.
With respect to the intentionality, I believe right now the statute reads it has to be a violation of the order. I have not heard of difficulties in prosecuting violations based on them not being intentional. What is the meaning of adding “intentional?” Is there some threshold of proof judges are looking for without intentional? I have operated on the idea if something were an accidental violation of an order, it would certainly be a defense to the case. If you are accidentally in a large stadium of people and happen to be in the same place as the victim who had obtained the order, I cannot imagine that case would proceed, because it would not be provable. If we are trying to address accidental violations, I do not know if intentional is trying to do that or if intentional is trying to address some other kind of proof problems and violations.
Senator Care:
I, too, am somewhat puzzled by the sealing of records. I do not know what the purpose would be. The other thing, I guess the fundamental question is, what in law, when it comes to protective orders, is not working? We went through this in 1999, and I believe we had some discussion about protective orders against violence in the workplace during the 71st Legislative Session. I believe the question the committee should entertain is, what is it about the process now that does not seem to be working? As to the category C felony, it has been my observation, in my three sessions here, that we have a tendency to march up, sometimes at a whim, and make something a misdemeanor or a gross misdemeanor, and next session it becomes a category C felony. I sometimes get the feeling by the time term limits kick in, if I am still here, we will have made everything a category A, the way we are going. I do not want to say that lightly, but I often wonder if we realize what it means to say, “We are going to make this a category C felony because we do not like this kind of person.” We need to give a lot of thought to this because when you put somebody behind bars for an extended period, that is serious. I agree I am somewhat confused about what we are trying to do here, but I believe the fundamental thrust is, what is not working is what we need to examine repairing.
Judge Ward:
In regard to the category C penalty in S.B. 398, I am not sure where it came from, but it appears to go along with the enhancement in the domestic battery statute where the third offense becomes a category C felony.
Ms. Hart:
Actually, I believe the reason it is providing for a gross misdemeanor and the category C felony is simply to conform all of the protection orders to the penalties currently in place for stalking and harassment orders in chapter 200.591 of NRS. Those are gross misdemeanors currently and category Cs for violation of extended orders. I believe that may be the laudable part of this bill, an effort to, if not simplify the laws, make them similar enough there is not a lot of discrepancy between the provisions.
Chairman Amodei:
We will close the hearing on S.B. 398 and open the hearing on S.B. 403.
SENATE BILL 403: Requires certification of persons who provide reports or evaluations to courts regarding competency of defendants. (BDR 14‑1245)
Elizabeth Neighbors, Ph.D., Director, Lakes Crossing Center, Division of Mental Health and Developmental Services, Department of Human Resources:
I am the director of Lakes Crossing Center, the State’s only public facility designated to care for mentally ill offenders, for whom there is a question of their ability to proceed with adjudication due to their mental illness. I will read my testimony (Exhibit D).
Senator Wiener:
Looking under current law and the explanation from staff about competency evaluations in misdemeanor cases (Exhibit E), it says, “The court of jurisdiction shall appoint a psychiatric social worker or other person specially qualified.” When we are talking about certification, could you explain who else might satisfy that qualification once you put certification into place?
Dr. Neighbors:
It would have to be somebody who is a licensed health care provider and would be trained by the division. That provision has been in place for a long time, and I am not aware of anyone who had been trained in that way by the division, even though it is allowed by law. Perhaps a marriage and family therapist could qualify, if he or she had the appropriate background and training. There is an issue around the basic training one gets in his or her discipline that would support performing these evaluations. An example would be the kinds of assessment psychologists do using their specialized instruments, as well as general standardized testing. Chapter 433 of NRS has a list of qualified professionals in mental health that would meet that requirement.
Senator Washington:
Reading through the bill, when you deal with psychologists, psychiatrists, and social workers, if I understand this correctly, you are asking for them to be certified before they can give an expert report to the court. In thinking this through, most of the people in this profession have had some type of education and received a degree before they can practice their profession. Would not that certify them to give the expert report to the court without going through certification through the Division of Mental Health and Developmental Services (MHDS) and the Department of Human Resources?
Dr. Neighbors:
Not necessarily. We all have to qualify as an expert witness when we testify about these particular matters in court. As far as the general training, I can speak for myself, as a psychologist. I am a clinical psychologist and I am board certified in forensic psychology through the American Board of Professional Psychology. My general training would not have prepared me to do these types of evaluations. I gained that expertise through experience in going to many specialized trainings through the American Board of Forensic Psychology.
Senator Washington:
Would you provide the training for those individuals?
Dr. Neighbors:
That is what we are proposing, and I have had dialog with my colleagues in psychiatry and social work, as well.
Senator Washington:
Who would fund the training?
Dr. Neighbors:
We will absorb that cost. We have funding for training, and we are pretty much set up to do that kind of thing. We process many documents a year, so it would not be difficult for us to put the clerical part of this in place. There would probably not be a large number of individuals for whom we would have to provide that kind of documentation.
Senator Washington:
Would not the courts, especially the prosecutor or the defense, have a list or some type of résumé for those individuals who could provide expert testimony in whatever situation, whether they are clinical psychologists, psychiatrists, or social workers?
Dr. Neighbors:
They obviously have identified individuals they currently use for testimony. The reports and recommendations, of course, impact a broad part of the system. They impact us as a facility, as well as how individuals move through the system. So, yes, they do have individuals who are identified. When we had a sanity commission, there was a list, and Lakes Crossing Center informally provided names to judges of individuals we had informally mentored in the competency evaluation process. When that was in place, there was something of an informal process.
Senator Washington:
Were you requested or required by the Governor to cut your budget by 3 percent?
Dr. Neighbors:
Yes, we were.
Senator Washington:
In reading S.B. 403, I am going to be frank with you. It looks like a fee bill to me.
Dr. Neighbors:
We have put into S.B. 403 we would require fees only sufficient to offset the cost of things like the paperwork, and that would be minimal. We are not forcing a large fee to be charged for this, if we, in fact, charge a fee at all.
Senator Washington:
I am not trying to talk down the bill. I would expect the individuals who are practicing in these certain professions would have the competency and the expertise without going through another certification to provide expert testimony in whatever relevant situation arises in court.
Chairman Amodei:
This anticipates there would be a test administered for this certification?
Dr. Neighbors:
Yes, it is somewhat open-ended, because there are alternative methods for ascertaining whether somebody meets competency to perform the evaluations. However, in the conversations I had with the other disciplines, usually at the end of a continuing education course, the student has to do some kind of outcome measures. There would be a test to verify, in fact, the participants had absorbed the information.
Chairman Amodei:
I do not know if you are aware, but we are about to get about a dozen death penalty bills from the Assembly. Some of them deal with competency of adults, juveniles, and related issues. If S.B. 403 were to come into play, these people would fall under the guidelines you have set up regulatorily to enable them to provide an opinion in those contexts. Is that correct?
Dr. Neighbors:
I believe this is only referring to competency in criminal responsibility, but that would be a matter of interpretation. Perhaps I should defer to our attorney general to answer that question.
Senator Nolan:
How many people currently serve in this capacity?
Dr. Neighbors:
We have at our facility, five psychologists, three social workers, and a psychiatrist to provide these assessments. The number from the private sector is variable. On the sanity commission, we had approximately 20 people who were available to come in and do those reviews, and they are still in the community, in Reno. We have, over the period of time I have been at Lakes Crossing Center, received reports from varying numbers of individuals in Las Vegas. Presently, there are no people in the rural areas who are trained and consider themselves competent to do this, which is an issue. We do virtually all the assessments for the rural areas, as well.
Senator Nolan:
You are saying somewhere between 20 in northern Nevada who are not trained, and an unknown number in southern Nevada? Could you get a little closer to a number, say 10 or 20?
Dr. Neighbors:
There are probably between 20 and 30 individuals in Las Vegas who have done these over a time I am familiar with. They do not perform assessments as a full‑time practice. They do it as part of their practice, which is a contrast to our experience, because we do them 5 days a week, 8 hours a day. We focus on gathering information, and we have the luxury of doing that. Part of what we are asking is to share that. In terms of board certified individuals; there is one psychiatrist in Las Vegas I am aware of. There are two in Reno, per my discussion with a member of the psychiatry community yesterday. There are a number of other individuals in psychology who have various certifications. I believe I am the only one certified by the American Psychology Association.
Senator Nolan:
Of those 40 or so people, how many do you currently consider competent, and after some preliminary assessment, how many would have the credentials to perform assessments adequately and competently versus those not currently competent?
Dr. Neighbors:
All the people who currently perform evaluations have to be licensed, and therefore, are competent in their fields. As far as the forensic specialty and knowing all the particular resources of the system in Nevada, I would say that varies. It is a difficult question to answer, because we have had the experience of having people sent to us who, when making a referral, were not familiar with, say, a particular statute, such as the time constraints for a misdemeanor. In their fields they are all competent in terms of being social workers, psychologists, and psychiatrists. In terms of having access to information about the system that would help expedite the process to deliver an efficient service, I would say there are perhaps 25 percent or 30 percent who do not have that information. Pretty much all of us could use more training.
Senator Nolan:
Regarding the fee, did you have any idea about what type of fee we are looking at assessing? There are hundreds of fees in statute, and a lot of them are set. I was wondering if you have any idea of what that fee might be?
Dr. Neighbors:
We are talking about a $15 certification fee, if we are going to be as frugal as possible and use individuals who are not going to charge large fees for training. That would be what I would anticipate. I do not believe it would offset our 3 percent.
Chairman Amodei:
How is this handled in other states and in neighboring jurisdictions?
Dr. Neighbors:
Approximately 12 states in the country have a process I am familiar with. Massachusetts has a qualified examiner requirement that is quite involved, somewhat more involved than what we are proposing. Florida has a process in which they contract their training out to a private provider. Hawaii has a process whereby the state provides training with a workshop in review of reports, and then provides a list. I believe Utah also has a process. Their laws are a little different than ours, but they also have qualified examiners. A lot of states have lists of qualified examiners that are verified in varying ways.
Ed Irvin, Deputy Attorney General, Human Resources Division, Office of the Attorney General:
I am a deputy attorney general, assigned to represent the Division of Mental Health and Developmental Services. I am here to answer any legal technical questions. I have no prepared remarks.
Senator Wiener:
What effect would this have if it were to go forward on cases that are either pending or already adjudicated that involved a component of mental health as part of the decision to put somebody into a criminal facility? What impact could it have retroactively in an appeal? Could it be argued that in prior cases, perhaps the evaluators were not qualified to prepare reports, and might that be used in an appeal?
Mr. Irvin:
I believe Senator Washington brought up an interesting issue relating to laying a foundation for an expert in a criminal proceeding as opposed to a certification process. Currently, for evidence of an expert to be introduced, there must be a foundation, which is susceptible to cross examination and objections. This would not change that process. Actually, S.B. 403 does not say someone who is certified is automatically an expert witness and can automatically give a conclusion related to a particular issue. It would still have to go through that process. On appeal, my answer to your question is no, it would not have an effect. On appeal, they would have to say this law was in effect and was not followed, and therefore, there was a legal deficit. It could be used in post‑conviction relief proceedings to attack the qualifications of the participants in the criminal proceeding. Certainly that is available. However, it is available now. Currently, you could attack an expert by saying, in some other jurisdiction, the qualifications are higher; therefore, in Nevada the qualifications were not high enough. However, my simple answer to you is it should have no effect.
Possibly more interestingly, when MHDS prepares regulations, they go to the Commission on Mental Health and Developmental Services. So there is a process by which the regulations are reviewed. There is the possibility this type of certification would not go into effect at the time the bill passes. However, those regulations would not be passed, so the process would not be in place. I suggest, no harm, no foul. Also, it has not been mentioned, but I believe the regulations could easily provide a grandfather provision, stating people who are already providing these services and already have the required qualifications, could be certified if they did certain things, such as receive additional training.
Chairman Amodei:
We will close the hearing on S.B. 403 and open the hearing on S.B. 430.
SENATE BILL 430: Revises provisions concerning restoration of certain rights of ex-felons. (BDR 14-1222)
Dorla M. Salling, Chairman, State Board of Parole Commissioners, Department of Public Safety:
With me today is Richard Varner, who is the deputy chief of the Division of Parole and Probation. I am here to speak in support of S.B. 430, and to hopefully explain the process and how it affects the parole board. Presently the parole board and my office administratively handle all the paperwork for the pardons board, which is a different entity, made up of the Governor, the justices, and the attorney general. The pardons board only meets twice a year and typically handles eight to ten cases at a time. They handle a number of different matters, but one of the largest is the matter of restoration of the right to bear arms. Presently, the pardons board is the only entity in Nevada that can grant that right. Because of that, and all the related paperwork, and the high number of requests that come through my agency, it is a tremendous workload on the parole board. We have no actual people assigned to that task. We are not funded for any positions, so we just absorb that function within our agency.
There are a number of reasons I am in support of this bill. First and foremost, I believe the workload and the cost to the State of Nevada should be spread out among the original courts of jurisdiction, those courts that sentenced these people in the first place and who know the most about them. They should be deciding who should have the right to bear arms restored. I am not saying felons should or should not get the right to bear arms back, but rather to let the original court of jurisdiction make that decision. As it presently stands, when they go before the pardons board, it is not as simple as they go and the pardons board decides. My agency is required to gather all kinds of paperwork and try to go back, sometimes to cases that are 20 to 25 years old. We must go back to the district courts, gather tremendous amounts of paperwork, and make copies for everyone who sits on the pardons board, at a tremendous cost. Then when the board actually sits and the defendant goes before it, there are costs for court reporters. It is a great expense, not even addressing the time it takes, which is months, to prepare for a hearing.
Another major reason to pass this bill is we believe S.B. 430 shifts the burden back onto the defender to take responsibility to go back to the original court of jurisdiction and request to have his or her rights restored. Last session, the law was changed to enable defendants to automatically regain their civil rights in certain instances. We see no reason to change that other than to shift the burden of the decision-making away from the pardons board and spread it out among all the courts in the State, and to address the issue of the right to bear arms.
Senator Wiener:
There is a provision if the court does not decide to allow the restoration of the right to bear arms, it must be entered into the record when the applicant can petition again. The only reason I could see in the language of S.B. 430 for the court to not grant that right was the person poses a threat if the right to bear arms was restored. I was wondering what would occur if, in the original decision, the court believed the person was a threat or could use the right to bear arms for violent purposes. What might change with the repetition to the court to change the court’s decision to restore the right to bear arms?
Ms. Salling:
I certainly could not speak for a judge, but I believe that language was included to not totally cut that avenue off for the applicant. Perhaps they are applying, but it has only been 1 or 2 years. Perhaps the court would like to see more time go by. The court may be on the fence, and not want to grant that right at the present time, but maybe after 5 or 10 years in which the defendant remained arrest-free and had been a contributing member of society, the court might feel more comfortable in granting the right to bear arms.
Senator Wiener:
You used 5 years, but that is open-ended, there is no determination, so it could be any length of time. Is only one subsequent application allowed?
Ms. Salling:
I do not believe the language prohibits someone from coming back again. I believe it has left it up to the sentencing judge as to when he or she would be willing to consider it again. I believe it is left open-ended because people do change over time. Certainly society changes, and society’s philosophy regarding crime and weapons changes over time, as well.
Senator Nolan:
What is the genesis of S.B. 430? Are we looking simply to restore one of the basic fundamental rights that we, as Americans, enjoy to these people after having served their time and made amends to society? Or is there a problem? Have people come to us and said they are not able to protect themselves and their families? I am wondering if there has been a problem with not restoring ex‑felons’ right to bear arms in the past.
Mr. Salling:
I do not believe there has been a problem. Certainly people, in my career, who have applied to the pardons board, said they needed to be able to protect themselves. Generally, they say they want to hunt. It is more about taking their children hunting. Again, it is not my place to support or oppose someone’s right to bear arms. Strictly speaking, the original court of jurisdiction has all the facts of the case and could best make that decision.
Senator Nolan:
I served on the Assembly Committee on Judiciary for 8 years and then came to the Senate and have listened to many of these issues before. I believe people coming out of our penal system who have committed felony crimes, the majority of which are not violent crimes, certainly end up with a whole new education in the penal system, having spent time with violent criminals. I believe when they come out they have a real challenge ahead of them to establish a new life and try to reestablish their values in society. I am just wondering if any thought had been given to the other side of this issue, that for many of these people it is tough enough to get back on track without, at some point, being given the opportunity to possess a gun, and perhaps falling down again.
Ms. Salling:
Again, I reiterate this right to ask for the restoration of firearms already exists. It is not something new. All we are doing is saying the original court of jurisdiction would perhaps be the best one to make that decision. It is certainly not automatic, and I would agree with you, convicted persons have a difficult time reintegrating into society. I would also agree they absolutely do not automatically need the right to bear arms, and we are certainly not suggesting that.
Senator Care:
Has anybody talked to the judges or the district attorney’s office? The very burden you are trying to get rid of may impose an additional burden on them. Usually there would be somebody here on behalf of the judges to testify on such matters, but I have not seen anyone in that capacity.
Ms. Salling:
Nobody has talked to the judges. I believe the idea was this burden, by the time it was spread out among all the judges Statewide, would be minimal. Not everyone applies for this right. It is a huge impact, timewise and fiscally, to the tiny parole board. We have five support staff, and two of those positions are open. To us it is a big impact, but when it is spread out among all the judges Statewide, we did not believe it would be a big impact.
Senator Wiener:
What would be the average number of people who would apply per year over a 5-year period?
Ms. Salling:
We do not actually track how many applicants or phone calls we receive. We have a Web site and people download those applications, and we get tons of phone calls, but not everyone who calls follows through. There are so many avenues in which to pursue this. I believe Deputy Chief Varner has statistics the Division of Parole and Probation has kept because they process those back to the court. As far as the pardons board goes, maybe eight to ten actually get on an agenda twice a year. However, regarding the applications, we do not even have time to track all of those; we get hundreds.
Richard Varner, Deputy Chief, Division of Parole and Probation, Department of Public Safety:
Since October 2001, when the division became responsible for processing these petitions, we have received 174 inquiries about the process. Out of those 174 inquiries, we received 80 applications from individuals wishing to move forward in the process of having their civil rights restored. Out of that 80, 38 were processed and forwarded to the courts, and those would be the probationers; 20 were processed and sent to the parole board, for the parolees; and 22 individuals were denied due to their failure to meet the statutory requirement. That would include such things as those convicted of a federal crime instead of a State crime who had inquired about having their State rights restored. We had to refer them to the federal government. We have also had inquiries from people who did not receive honorable discharges, which we do not handle and were therefore denied. They may have committed another crime since being discharged and were denied. They may not have satisfied some type of financial obligation, such as supervision, restitution, or court fees. These are the types of statistics we have kept since October 2001. As you can see, there have not been a great number of individuals who have applied to have their civil rights restored.
Gene Munnings:
I am representing myself. I read S.B. 430. There is a counter bill in the Assembly, Assembly Bill (A.B.) 337, that will probably be in this House in the next few weeks.
Assembly Bill 337: Makes various changes concerning rights of ex-felons. (BDR 14-63)
In looking through S.B. 430, I note it has nothing regarding a person convicted out-of-state, to restore his rights. Assembly Bill 337 does, but I was wondering how you would write that into this bill. When I ran for office last year, I had a conviction in Maryland, but it was an Alford Plea, which in Maryland is not considered a conviction, so I had no loss of rights. When I moved, I did lose my civil rights due to my Maryland conviction. I asked how I could regain my civil rights, but nobody was able to answer. Maryland did not take my civil rights, but Nevada did. Not that I ever wanted to own a gun, but I would like to be able to purchase collector items for investment. I am unable to even do that in Nevada.
Chairman Amodei:
I am not familiar with how you would go about doing that. Ms. Salling, do you have any thoughts on that?
Ms. Salling:
We have all researched the subject pretty extensively, and my understanding is the law, as it exists now, does not allow the pardons board to grant restoration of civil rights to someone who has been convicted in another state. Once upon a time it did, once upon a time it gave those rights back to persons convicted of federal crimes. That changed a number of years ago. There could be an amendment to this bill addressing people convicted in another state and dishonorable discharges, because currently there is no avenue for either case, and I believe the intent of this bill was to deal with the issue as it exists. I would like to add to Deputy Chief Varner’s point and clarify that all the statistics he gave are for restoration of rights only, not the right to bear arms. The restoration of the right to bear arms has to go to the pardons board. I do not believe A.B. 337 addresses the right to bear arms either.
Mr. Varner:
I would like to put on record the Division of Parole and Probation supports the aspect of the bill that shifts the burden from the division to the individuals who wish to file these petitions to have their civil rights restored. We believe it is more appropriate for them to go through the process rather than what we are doing now. It takes staff time to process these petitions, it takes anywhere from 1 hour to 4 hours to process an application. That is the aspect of S.B. 430 that parole and probation is supporting.
Chairman Amodei:
Has anyone talked to the district judges? Do they have any thoughts on this that you are aware of?
Ms. Salling:
Mr. Chairman, I have not spoken to them, and we have not received any opposition, so I am assuming they are in agreement. I certainly could speak to the judges if you would like me to.
John A. Wardrobe:
I am in support of this bill. I have a petition and have had one for 32 years with the Washoe County Second Judicial District Court. Currently, it is a lot of work to obtain the right to bear arms. I was highly decorated in Vietnam in 1969, and when I came back in 1970, after many months in the hospital, I was growing my own marijuana. I was found guilty. That was a pretty bad crime 32 years ago. The biggest problem was that I was also campaigning for the Nevada State Assembly at the same time, so I was known as “Johnnie Pot Seed,” I guess. I have not heard the mention of firearms, because I have used them up until 1996, when the point of sale provision of the Brady Bill was reinstated, and it had an effect on gun laws. I have been an avid hunter, licensed in this State for approximately 40 years. I used firearms right up until 1996, and on all the forms related to purchasing firearms, I put “no” for felon. It was my assumption that this petition released me from all liabilities and disabilities. I believe it does cost the State a lot of money to process requests for restoration of civil rights. There is a lot of paperwork to be done to complete the package, not only for me, but also for the State, the city, the county, and the Department of Motor Vehicles (DMV). My thought is I like the way S.B. 430 is written, and it does make it simpler for an individual who has acknowledged his crime to restore his rights.
R. Ben Graham, Lobbyist, Nevada District Attorneys’ Association/Las Vegas:
We are involved with a couple of bills dealing with restoration of various rights for people previously convicted of a crime. When it says it will go to the courts, the courts will then try to shift it to us. If S.B. 430 passes, I want it to specifically state the district attorney is not involved. After the record-sealing bill passed last session, the petitions for sealing went up to over 500, and we are sealing more than 1500 a year. With regard to getting the right to bear arms back right away, there is about a 76 percent recidivism rate, and the previous testifier, who has been out for a number of years, is one of the few. If there were a restoration of the right to bear arms, that right should be set out a few years. The position of the police department is more radical than mine. We do not believe the system is broken right now.
Senator Wiener:
Mr. Graham, you made the statement if it were to come to pass, to set the date far out because of the recidivism rate. Did you have an idea of how many years to set it out because there is a pattern of legal behavior?
Mr. Graham:
This is a broad area, and you are asking for a personal standpoint. A person who writes a bad check and is an ex-felon because of that should not be on the same plane as a person who had battery with a deadly weapon. You would have to analyze each offense if you wanted to graduate it. I would think if you wanted to have a firearm and you lost that right, a period of 4 or 5 years of clean and virtuous living, or not getting caught, would be sufficient to show the person is not going to re-offend and would be entitled to the right to bear arms. Of course, there are cases where a person is released from prison and does not get into trouble for a number of years, and we subsequently find out he was in prison in another state during that time. With regard to the issue of out-of-state convictions, we have no jurisdiction to tell another state what to do with their convictions.
Senator Care:
It has been awhile, but I have done a few of these for clients. I believe I just got a package, filled it out, and I did not even have to make an appearance. If there are no objections, the petition is granted. Is that the way it works?
Mr. Graham:
We have done everything we can to become user-friendly for sealing of records. We have also reduced the number of years a lot of these people had to wait. Our record-sealing packet is on the Internet under Clark County. Although it does not say so, we ask that it be submitted to the prosecutor’s office, and 95 percent of the time, we will stipulate so the person does not have to appear in court. I do not recommend a “do it yourself,” but it can be done. I would recommend an attorney review it. If it is acceptable statutorily, 99.9 percent of the time we will stipulate to it, unless we get some other reason why we should not. In that case, it would have to go to court. It is a fairly simple process with regard to sealing. Restoration of rights is another issue.
James F. Nadeau, Lobbyist, Nevada Sheriff’s and Chief’s Association/North, Washoe County Sheriff’s Office:
I concur with Mr. Graham’s comments.
Laurel A. Stadler, Lobbyist, Mothers Against Drunk Driving - Lyon County Chapter:
Senate Bill 430 put a red light on for me when I was looking through a bill draft request list, and I was not sure what it was about. I have some questions, and some of those have been answered. I tend to agree with what Mr. Graham and Senator Nolan said about future victims. Part of our group’s purpose is to support victims of the violent crime of driving under the influence (DUI). This bill, at first glance, looked like an easy way for offenders to get their rights back, to get the right to bear arms, and particularly on page 2, section 2, lines 39 and 40, where “not sooner than 6 months after completing probation” has been taken out to be able to do this. It would seem to me just because a person has completed probation or parole or expired his or her sentence, it does not necessarily mean he or she has changed his or her behavior. As was brought up with the recidivism rate, we would have a great concern about future victims.
In response to Senator Wiener’s question about the time frame, even though there is a wide range of felony crimes, the prison system has repeatedly told us the great majority of offenders have a drug or alcohol problem that is the basis for their criminal behavior. Regardless of the crime for which defendants are incarcerated, they could have a dangerous background that would hopefully be considered when restoring the right to bear arms, particularly. I would like to restate the victims’ point of view that making things easier for offenders to get rights and to bear arms could very easily create more future victims in our State.
Senator Washington:
Ms. Stadler, do you have a suggested time line?
Ms. Stadler:
Actually, maybe instead of a time frame, one of the gentlemen mentioned restitution. A big problem for victims is when a person gets out of prison, if there is any restitution to victims still on the books, very often that is lost. We always hear, “Once a person is out of the system, that is too bad.” The victim has to go to court, or get an order, or do this or that. Maybe restoring some of these rights could be tied to completion of the restitution to victims. That would show responsible behavior by an offender, and it would show they were probably working in order to be able to make restitution. That is one of the issues in the victims’ rights area where it has dropped through the cracks. Once the offender is out of prison, there is no control.
Chairman Amodei:
We will close the hearing on S.B. 430 and open the hearing on S.B. 433.
SENATE BILL 433: Revises provisions governing admissibility of certain evidence. (BDR 4-427)
Bruce W. Nelson, Deputy District Attorney, Vehicular Crimes Unit, District Attorney, Clark County:
I am currently assigned to the Vehicular Crimes Unit, involved primarily with DUIs. I have been doing that for 6 years. Before that I was with the city attorney’s office for 10 years. The purpose of this bill is quite simple. It is not changing anything substantively. It is simply making corrections to current law. To explain why those are necessary, I need to talk a little about how DUI blood cases are handled by the officer. When officers arrest someone for DUI, they take him or her to jail, and the nurse does a blood draw. The officer then takes the blood, which is sent to the laboratory. The laboratory is tested first to determine if there are any drugs in the laboratory. Hypothetically, let us say they find marijuana present, cocaine present, PCP present. Then the chemist will test the blood again to confirm, first, that drug is there, and second, the amount of the drug. In Clark County, our procedure is, let us say we have marijuana, PCP, and cocaine, one of our chemists will test for marijuana, one will test for PCP, and one will test for cocaine.
The reason they do the three tests simultaneously are, quite frankly, to save time and administrative work. Unfortunately, under the present law, each one of those chemists has to prepare either an affidavit or declaration. Then all three of those declarations have to be prepared administratively by someone at the crime lab, and all three declarations have to be signed by the individual chemist. The change proposed by S.B. 433 is to add the word “report.” That would allow us to prepare one report. For example, it would be titled, “Blood Test Results of Defendant Smith. I am chemist A, I found 10 nanograms of cocaine.” On the same page, “I am chemist B, I found 10 nanograms of marijuana.” In that way, we could cut down administratively on the work necessary to prepare the declarations. Instead of having three documents, we would have only one.
Senate Bill 433 does not, in any way, change or affect the defendant’s rights. When the case goes to court, the defendant can still object to it, and can still compel the chemists to come in and testify about their results. Nothing in this bill, in any way, impacts a defendant’s current right to challenge the report, the declaration or the affidavit. It simply expands slightly what type of documentation can be prepared.
The second part of S.B. 433 changes the language with regard to declarations. Again, I need to give you a little background information. Right now, when a nurse does a blood draw, he or she will prepare a declaration that says, “I am a nurse. I am licensed by Nevada to draw blood. I drew this blood from Defendant Smith, not using any alcohol. I gave the blood to Officer Jones, and he took care of it from there.” The problem with the way the law is currently written, NRS 50.315 only allows the nurse to testify by way of affidavit that he or she is a nurse, that he or she drew blood from Defendant Smith, and then he or she gave the blood to Officer Jones. Therefore, the nurse cannot say, for example, that, “I am licensed in Nevada to draw blood,” nor can he or she say, “I drew the blood sample using no alcohol.” When the nurse's declaration gets to court, the defense attorney can say, “He or she is not allowed, under current law, to testify that he or she is a nurse, licensed to draw blood in Nevada.” Therefore, the State has to bring him or her into court. This creates a real problem. We have a nursing shortage in Nevada. Most of our blood draws in southern Nevada are done in the jails, so our jail nurses have to go to court. They never have to testify, but they do have to go to court, necessitating them to leave the jail. The jail then has to get a fill‑in nurse, and we have to pay the nurse that goes to court as well as the fill‑in nurse. When you multiply that by the thousands of misdemeanor DUI cases, you can see this creates a financial hardship.
The problem is even worse in rural areas, because frequently the officer will have to transport the defendant to a hospital 100 miles and 2 or 3 hours away. Now that nurse has to leave the hospital, and drive 200 miles to testify in court. Realistically, I should not say testify in court, because nurses never have to testify. What happens is the defense will make their objection, and the judge will say, “You have to bring in the nurse.” The State will then bring in the nurse and the minute the nurse walks in the door, the defendant will say, “Okay, the nurse is here. We are going to plead guilty now.” The reason we have this declaration statute, is because the nurse’s testimony in court is never challenged, and realistically, it cannot be challenged. When the nurse comes in to testify, what he or she testifies to is, “I am a nurse. I drew blood. I do not remember this person, but everything in my declaration is true.” The law recognized, in 1999, when we first passed NRS 50.315, there was no reason for the nurse to testify in court, because realistically, how can the defense challenge him or her? What are they going to ask, “Is it not true you are not really a nurse? Is it not true you did not really write this paper?”
There is no logical reason to have the nurse come to court anymore than there is in a case where someone is charged with driving without a driver’s license. What we do is introduce a record from the DMV showing the person does not have a driver’s license rather than having the director of DMV go to court on every one of those cases and say, “I searched the records, and I discovered the person did not have a license.” That is why NRS 50.315 was initially passed. We now need to amend it so the nurse’s declaration can serve the function it is supposed to serve. That is, does the nurse’s declaration contain anything relevant to the blood draw? Such as the fact he or she is a nurse licensed to draw blood, which under current law we have to prove to establish the validity of the blood draw in the first place. The problem is we cannot do it by way of declaration. Again, this will not in any way affect the defendant’s rights. The defendant, under current law, can demand the nurse come into court, if the defense can show there is a substantial and bonafide dispute with regard to the affidavit or declaration, such as the nurse forgot to sign it, or wrote down the wrong date or time. The defendant will still maintain the right to make the nurse come to court.
Likewise, in a felony case, the defendant can demand the nurse come to court regardless of the reason. They do not have to establish any dispute. That is unchanged by this bill. What S.B. 433 will do is allow the declarations of the nurse, the person who calibrates the breath machine, the person who prepares the solution the officer runs through the machine to ensure it is working, and the person who administers the breath test to be used in court, in the manner the statute originally intended.
Senator Nolan:
In many cases, when individuals are brought in, a technician will perform the blood draw. I am wondering if it matters at all whether a nurse or technician draws the blood. Does it make any difference in credentialing, or would either of those individuals sign the same declaration?
Mr. Nelson:
The law currently limits who can do a blood draw for a DUI case. It is limited to a nurse, a laboratory technician, or a physician’s assistant. Senate Bill 433 does not affect those categories at all. They are set in a different section of NRS. The people who can draw blood are still limited. It merely allows their declaration to state, he or she is one of those limited people who can draw blood, and he or she is authorized to do so by the appropriate Nevada agency.
Chairman Amodei:
We will close the hearing on S.B. 433. Since there is no further business to come before the committee, we are adjourned at 9:31 a.m., until tomorrow morning at 8 a.m.
RESPECTFULLY SUBMITTED:
Jo Greenslate,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: