AB106

Assembly Bill No. 106–Committee on Judiciary

(On Behalf of the Nevada Supreme Court)

February 13, 2003

____________

Referred to Committee on Judiciary

SUMMARY—Revises penalty for driving under influence of intoxicating liquor or controlled or prohibited substance and revises qualifications of person who may apply to court to undergo program of treatment for alcoholism or drug abuse. (BDR 43‑606)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State: No.

EXPLANATION – Matter in bolded italics is new; matter between brackets [~~omitted material]~~ is material to be omitted.

Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

AN ACT relating to traffic laws; revising the penalty for driving under the influence of intoxicating liquor or a controlled or prohibited substance; revising the qualifications of a person who may apply to the court to undergo a program of treatment for alcoholism or drug abuse; and providing other matters properly relating thereto.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 Section 1. NRS 484.3792 is hereby amended to read as

1-2 follows:

1-3 484.3792 1. Unless a greater penalty is provided pursuant

1-4 to NRS 484.3795, a person who violates the provisions of

1-5 NRS 484.379:

1-6 (a) For the first offense within 7 years, is guilty of a

1-7 misdemeanor. Unless he is allowed to undergo treatment as

1-8 provided in NRS 484.37937, the court shall:

1-9 (1) Except as otherwise provided in subparagraph (4) or

1-10 subsection 6, order him to pay tuition for an educational course on

1-11 the abuse of alcohol and controlled substances approved by the

2-1 Department and complete the course within the time specified in the

2-2 order, and the court shall notify the Department if he fails to

2-3 complete the course within the specified time;

2-4 (2) Unless the sentence is reduced pursuant to NRS

2-5 484.37937, sentence him to imprisonment for not less than 2 days

2-6 nor more than 6 months in jail, or to perform not less than 48 hours,

2-7 but not more than 96 hours, of community service while dressed in

2-8 distinctive garb that identifies him as having violated the provisions

2-9 of NRS 484.379;

2-10 (3) Fine him not less than $400 nor more than $1,000; and

2-11 (4) If he is found to have a concentration of alcohol of 0.18

2-12 or more in his blood or breath, order him to attend a program of

2-13 treatment for the abuse of alcohol or drugs pursuant to the

2-14 provisions of NRS 484.37945.

2-15 (b) For a second offense within 7 years, is guilty of a

2-16 misdemeanor. Unless the sentence is reduced pursuant to NRS

2-17 484.3794, the court shall:

2-18 (1) Sentence him to:

2-19 (I) Imprisonment for not less than 10 days nor more than

2-20 6 months in jail; or

2-21 (II) Residential confinement for not less than 10 days

2-22 nor more than 6 months, in the manner provided in NRS 4.376

2-23 to 4.3766, inclusive, or 5.0755 to 5.078, inclusive;

2-24 (2) Fine him not less than $750 nor more than $1,000[;

2-25 (3) Order him to perform not less than 100 hours, but not

2-26 more than 200 hours, of community service while dressed in

2-27 distinctive garb that identifies him as having violated the provisions

2-28 of NRS 484.379, unless the court finds that extenuating

2-29 circumstances exist; and

2-30 (4)] , or order him to perform an equivalent number of

2-31 hours of community service while dressed in distinctive garb that

2-32 identifies him as having violated the provisions of NRS 484.379;

2-33 and

2-34 (3) Order him to attend a program of treatment for the

2-35 abuse of alcohol or drugs pursuant to the provisions of

2-36 NRS 484.37945.

2-37 A person who willfully fails or refuses to complete successfully a

2-38 term of residential confinement or a program of treatment ordered

2-39 pursuant to this subsection is guilty of a misdemeanor.

2-40 (c) For a third or subsequent offense within 7 years, is guilty of

2-41 a category B felony and shall be punished by imprisonment in the

2-42 state prison for a minimum term of not less than 1 year and a

2-43 maximum term of not more than 6 years, and shall be further

2-44 punished by a fine of not less than $2,000 nor more than $5,000. An

2-45 offender so imprisoned must, insofar as practicable, be segregated

3-1 from offenders whose crimes were violent and, insofar as

3-2 practicable, be assigned to an institution or facility of minimum

3-3 security.

3-4 2. An offense that occurred within 7 years immediately

3-5 preceding the date of the principal offense or after the principal

3-6 offense constitutes a prior offense for the purposes of this section

3-7 when evidenced by a conviction, without regard to the sequence of

3-8 the offenses and convictions. The facts concerning a prior offense

3-9 must be alleged in the complaint, indictment or information, must

3-10 not be read to the jury or proved at trial but must be proved at the

3-11 time of sentencing and, if the principal offense is alleged to be a

3-12 felony, must also be shown at the preliminary examination or

3-13 presented to the grand jury.

3-14 3. A person convicted of violating the provisions of NRS

3-15 484.379 must not be released on probation, and a sentence imposed

3-16 for violating those provisions must not be suspended except, as

3-17 provided in NRS 4.373, 5.055, 484.37937 and 484.3794, that

3-18 portion of the sentence imposed that exceeds the mandatory

3-19 minimum. A prosecuting attorney shall not dismiss a charge of

3-20 violating the provisions of NRS 484.379 in exchange for a plea of

3-21 guilty, guilty but mentally ill or nolo contendere to a lesser charge or

3-22 for any other reason unless he knows or it is obvious that the charge

3-23 is not supported by probable cause or cannot be proved at the time

3-24 of trial.

3-25 4. A term of confinement imposed pursuant to the provisions

3-26 of this section may be served intermittently at the discretion of the

3-27 judge or justice of the peace, except that a person who is convicted

3-28 of a second or subsequent offense within 7 years must be confined

3-29 for at least one segment of not less than 48 consecutive hours. This

3-30 discretion must be exercised after considering all the circumstances

3-31 surrounding the offense, and the family and employment of the

3-32 offender, but any sentence of 30 days or less must be served within

3-33 6 months after the date of conviction or, if the offender was

3-34 sentenced pursuant to NRS 484.37937 or 484.3794 and the

3-35 suspension of his sentence was revoked, within 6 months after the

3-36 date of revocation. Any time for which the offender is confined

3-37 must consist of not less than 24 consecutive hours.

3-38 5. Jail sentences simultaneously imposed pursuant to this

3-39 section and NRS 482.456, 483.560 or 485.330 must run

3-40 consecutively.

3-41 6. If the person who violated the provisions of NRS 484.379

3-42 possesses a driver’s license issued by a state other than the State of

3-43 Nevada and does not reside in the State of Nevada, in carrying out

3-44 the provisions of subparagraph (1) of paragraph (a) of subsection 1,

3-45 the court shall:

4-1 (a) Order the person to pay tuition for and submit evidence of

4-2 completion of an educational course on the abuse of alcohol and

4-3 controlled substances approved by a governmental agency of the

4-4 state of his residence within the time specified in the order; or

4-5 (b) Order him to complete an educational course by

4-6 correspondence on the abuse of alcohol and controlled substances

4-7 approved by the Department within the time specified in the

4-8 order,

4-9 and the court shall notify the Department if the person fails to

4-10 complete the assigned course within the specified time.

4-11 7. If the defendant was transporting a person who is less than

4-12 15 years of age in the motor vehicle at the time of the violation, the

4-13 court shall consider that fact as an aggravating factor in determining

4-14 the sentence of the defendant.

4-15 8. As used in this section, unless the context otherwise

4-16 requires:

4-17 (a) “Concentration of alcohol of 0.18 or more in his blood or

4-18 breath” means 0.18 gram or more of alcohol per 100 milliliters of

4-19 the blood of a person or per 210 liters of his breath.

4-20 (b) “Offense” means:

4-21 (1) A violation of NRS 484.379 or 484.3795;

4-22 (2) A homicide resulting from driving or being in actual

4-23 physical control of a vehicle while under the influence of

4-24 intoxicating liquor or a controlled substance or resulting from any

4-25 other conduct prohibited by NRS 484.379 or 484.3795; or

4-26 (3) A violation of a law of any other jurisdiction that

4-27 prohibits the same or similar conduct as set forth in [paragraph (a)

4-28 or (b).] subparagraph (1) or (2).

4-29 Sec. 2. NRS 484.37937 is hereby amended to read as follows:

4-30 484.37937 1. Except as otherwise provided in subsection 2, a

4-31 person who is found guilty of a first violation of NRS 484.379, other

4-32 than a person who is found to have a concentration of alcohol of

4-33 0.18 or more in his blood or breath, may, at that time or any time

4-34 before he is sentenced, apply to the court to undergo a program of

4-35 treatment for alcoholism or drug abuse which is certified by the

4-36 Health Division of the Department of Human Resources for at least

4-37 6 months. The court shall authorize that treatment if:

4-38 (a) The person is diagnosed as an alcoholic or abuser of drugs

4-39 by:

4-40 (1) An alcohol and drug abuse counselor who is licensed or

4-41 certified pursuant to chapter 641C of NRS to make that diagnosis; or

4-42 (2) A physician who is certified to make that diagnosis by the

4-43 Board of Medical Examiners;

4-44 (b) He agrees to pay the cost of the treatment to the extent of his

4-45 financial resources; and

5-1 (c) He has served or will serve a term of imprisonment in jail

5-2 of 1 day, or has performed or will perform [48] 24 hours of

5-3 community service.

5-4 2. A person may not apply to the court to undergo a program of

5-5 treatment pursuant to subsection 1 if, within the immediately

5-6 preceding 7 years, he has been found guilty of:

5-7 (a) A violation of NRS 484.3795;

5-8 (b) A homicide resulting from driving or being in actual

5-9 physical control of a vehicle while under the influence of

5-10 intoxicating liquor or a controlled substance or resulting from any

5-11 other conduct prohibited by NRS 484.379 or 484.3795; or

5-12 (c) A violation of a law of any other jurisdiction that prohibits

5-13 the same or similar conduct as set forth in paragraph (a) or (b).

5-14 3. For the purposes of subsection 1, a violation of a law of any

5-15 other jurisdiction that prohibits the same or similar conduct as NRS

5-16 484.379 constitutes a violation of NRS 484.379.

5-17 4. A prosecuting attorney may, within 10 days after receiving

5-18 notice of an application for treatment pursuant to this section,

5-19 request a hearing on the question of whether the offender is eligible

5-20 to undergo a program of treatment for alcoholism or drug abuse.

5-21 The court shall order a hearing on the application upon the request

5-22 of the prosecuting attorney or may order a hearing on its own

5-23 motion. The hearing must be limited to the question of whether the

5-24 offender is eligible to undergo such a program of treatment.

5-25 5. At the hearing on the application for treatment, the

5-26 prosecuting attorney may present the court with any relevant

5-27 evidence on the matter. If a hearing is not held, the court shall

5-28 decide the matter upon affidavits and other information before the

5-29 court.

5-30 6. If the court grants an application for treatment, the court

5-31 shall:

5-32 (a) Immediately sentence the offender and enter judgment

5-33 accordingly.

5-34 (b) Suspend the sentence of the offender for not more than 3

5-35 years upon the condition that the offender be accepted for treatment

5-36 by a treatment facility, that he complete the treatment satisfactorily

5-37 and that he comply with any other condition ordered by the court.

5-38 (c) Advise the offender that:

5-39 (1) If he is accepted for treatment by such a facility, he may

5-40 be placed under the supervision of the facility for a period not to

5-41 exceed 3 years and during treatment he may be confined in an

5-42 institution or, at the discretion of the facility, released for treatment

5-43 or supervised aftercare in the community.

5-44 (2) If he is not accepted for treatment by such a facility or he

5-45 fails to complete the treatment satisfactorily, he shall serve the

6-1 sentence imposed by the court. Any sentence of imprisonment must

6-2 be reduced by a time equal to that which he served before beginning

6-3 treatment.

6-4 (3) If he completes the treatment satisfactorily, his sentence

6-5 will be reduced to a term of imprisonment which is no longer than

6-6 that provided for the offense in paragraph (c) of subsection 1 and a

6-7 fine of not more than the minimum fine provided for the offense in

6-8 NRS 484.3792, but the conviction must remain on his record of

6-9 criminal history.

6-10 7. The court shall administer the program of treatment pursuant

6-11 to the procedures provided in NRS 458.320 and 458.330, except that

6-12 the court:

6-13 (a) Shall not defer the sentence, set aside the conviction or

6-14 impose conditions upon the election of treatment except as

6-15 otherwise provided in this section.

6-16 (b) May immediately revoke the suspension of sentence for a

6-17 violation of any condition of the suspension.

6-18 8. The court shall notify the Department, on a form approved

6-19 by the Department, upon granting the application of the offender for

6-20 treatment and his failure to be accepted for or complete treatment.

6-21 Sec. 3. NRS 484.3794 is hereby amended to read as follows:

6-22 484.3794 1. Except as otherwise provided in subsection 2, a

6-23 person who is found guilty of a second violation of NRS 484.379

6-24 within 7 years may, at that time or any time before he is sentenced,

6-25 apply to the court to undergo a program of treatment for alcoholism

6-26 or drug abuse which is certified by the Health Division of the

6-27 Department of Human Resources for at least 1 year if:

6-28 (a) He is diagnosed as an alcoholic or abuser of drugs by:

6-29 (1) An alcohol and drug abuse counselor who is licensed or

6-30 certified pursuant to chapter 641C of NRS to make that diagnosis; or

6-31 (2) A physician who is certified to make that diagnosis by the

6-32 Board of Medical Examiners;

6-33 (b) He agrees to pay the costs of the treatment to the extent of

6-34 his financial resources; and

6-35 (c) He has served or will serve a term of imprisonment in jail of

6-36 5 days, and if required pursuant to NRS 484.3792, has performed or

6-37 will perform not less than [50 hours, but not more than 100 hours,]

6-38 one-half of the hours of community service.

6-39 2. A person may not apply to the court to undergo a program of

6-40 treatment pursuant to subsection 1 if, within the immediately

6-41 preceding 7 years, he has been found guilty of:

6-42 (a) A violation of NRS 484.3795;

6-43 (b) A homicide resulting from driving or being in actual

6-44 physical control of a vehicle while under the influence of

7-1 intoxicating liquor or a controlled substance or resulting from any

7-2 other conduct prohibited by NRS 484.379 or 484.3795; or

7-3 (c) A violation of a law of any other jurisdiction that prohibits

7-4 the same or similar conduct as set forth in paragraph (a) or (b).

7-5 3. For the purposes of subsection 1, a violation of a law of any

7-6 other jurisdiction that prohibits the same or similar conduct as NRS

7-7 484.379 constitutes a violation of NRS 484.379.

7-8 4. A prosecuting attorney may, within 10 days after receiving

7-9 notice of an application for treatment pursuant to this section,

7-10 request a hearing on the matter. The court shall order a hearing on

7-11 the application upon the request of the prosecuting attorney or may

7-12 order a hearing on its own motion.

7-13 5. At the hearing on the application for treatment, the

7-14 prosecuting attorney may present the court with any relevant

7-15 evidence on the matter. If a hearing is not held, the court shall

7-16 decide the matter upon affidavits and other information before the

7-17 court.

7-18 6. If the court determines that an application for treatment

7-19 should be granted, the court shall:

7-20 (a) Immediately sentence the offender and enter judgment

7-21 accordingly.

7-22 (b) Suspend the sentence of the offender for not more than 3

7-23 years upon the condition that the offender be accepted for treatment

7-24 by a treatment facility, that he complete the treatment satisfactorily

7-25 and that he comply with any other condition ordered by the court.

7-26 (c) Advise the offender that:

7-27 (1) If he is accepted for treatment by such a facility, he may

7-28 be placed under the supervision of the facility for a period not to

7-29 exceed 3 years and during treatment he may be confined in an

7-30 institution or, at the discretion of the facility, released for treatment

7-31 or supervised aftercare in the community.

7-32 (2) If he is not accepted for treatment by such a facility or he

7-33 fails to complete the treatment satisfactorily, he shall serve the

7-34 sentence imposed by the court. Any sentence of imprisonment must

7-35 be reduced by a time equal to that which he served before beginning

7-36 treatment.

7-37 (3) If he completes the treatment satisfactorily, his sentence

7-38 will be reduced to a term of imprisonment which is no longer than

7-39 that provided for the offense in paragraph (c) of subsection 1 and a

7-40 fine of not more than the minimum provided for the offense in NRS

7-41 484.3792, but the conviction must remain on his record of criminal

7-42 history.

7-43 7. The court shall administer the program of treatment pursuant

7-44 to the procedures provided in NRS 458.320 and 458.330, except that

7-45 the court:

8-1 (a) Shall not defer the sentence, set aside the conviction or

8-2 impose conditions upon the election of treatment except as

8-3 otherwise provided in this section.

8-4 (b) May immediately revoke the suspension of sentence for a

8-5 violation of a condition of the suspension.

8-6 8. The court shall notify the Department, on a form approved

8-7 by the Department, upon granting the application of the offender for

8-8 treatment and his failure to be accepted for or complete treatment.

8-9 Sec. 4. This act becomes effective on July 1, 2003.

8-10 H