MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session March 2, 1995 The Committee on Judiciary was called to order at 8:04 a.m., on Thursday, March 2, 1995, Chairman Anderson presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Mrs. Dianne Steel Ms. Jeannine Stroth GUEST LEGISLATORS PRESENT: None STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Mrs. Laurel Stadler, Legislative Liaison, Mothers Against Drunk Driving (MADD) Robert L. Crowell, Esq., Crowell, Susich, Owen & Tackes, Ltd. Mr. Greg Harwell, Legislative Representative, Governmental Affairs, California State Automobile Association (AAA) Mr. Jim Werbeckes, Legislative Representative, Farmers Insurance Group of Companies Mr. Bruce Glover, Chief, Nevada Department of Motor Vehicles and Public Safety, Drivers License Division Mr. James J. Jackson, Nevada State Public Defender ASSEMBLY BILL NO. 91 - Requires evaluation and treatment relating to abuse of alcohol or other drugs for juvenile offenders under certain circumstances. Chairman Anderson announced a series of bills regarding juveniles driving under the influence would be taken under consideration, as a consequence of the A.C.R. 71 Study Committee. Although testimony was received from Mrs. Laurel Stadler, Legislative Liaison, Mothers Against Drunk Driving (MADD) in Las Vegas, she was called upon by Chairman Anderson to testify on A.B. 91, A.B. 92, A.B. 94, and A.B. 95. Mrs. Stadler submitted a brief recap of MADD's proposed bills regarding juveniles, attached as (Exhibit C). She also provided statistical information on drunk driving and "Leading Causes of Death In Teenagers" attached as (Exhibit D). She stated if any clarification is needed, MADD was available. Chairman Anderson reminded the committee testimony was received in Las Vegas on February 13, 1995. There was discussion on A.B. 91, Section 1, ll. 8 and 9, regarding the order for defendant to pay assessment of not more than one hundred dollars and render a judgment against him for the assessment. On page 3, if a child or his parents or legal guardians does not have the financial resources to pay all of those charges, the judge shall to the extent possible arrange for the child to receive treatment from a treatment facility which received a sufficient amount of federal or state monies to offset the remainder of the cost. A.B. 91 has a fiscal note. Mr. Neilander stated the fiscal note following the initial note is the fiscal note for A.B. 499 from last session. Part of the analysis is based on that note. If a defendant is not in a position to pay, Mr. Sandoval recalled provision for community service was discussed. Chairman Anderson replied in the affirmative. Mrs. Steel asked if amending the 21 age limit to 18 years was discussed. Chairman Anderson advised no proposed amendments or additional testimony were received on A.B. 91. The trend appeared to keep children 18 years and older in the district courts and out of the juvenile courts. In order to be consistent that should be examined. Chairman Anderson commented the question of jurisdiction of the court may be a factor. The purpose of A.B. 91 was directed to individuals between the ages of 18 and 21. Mrs. Stadler, MADD, clarified the question was answered in A.B. 91, page 1, l. 10, amending N.R.S. 44, addresses persons under age 21. They would be treated as an adult DUI offender. On page 2, Section 3, l. 39, the juvenile section is amended to add those persons in juvenile court. For the treatment alternative they would like to see 21 years of age and under have the option for treatment because they are not of legal age to be consuming alcohol. Mrs. Steel thought it was the consensus to keep juvenile court for 18 years of age and under only. Above the age of 18 would to district court. It was acceptable if treatment was made available for first offenders. Mr. Neilander offered to provide Mrs. Steel with a copy of the statute that clarifies jurisdiction. Section 1 is amending N.R.S. 484, jurisdiction of district court. Section 3 is amending N.R.S. 62, juvenile court jurisdiction. Currently, juvenile court has exclusive jurisdiction of persons under the age of 18. The statute is attempting to create a situation where the juvenile court would always handle those persons under 18. If they are 18 to 21 the district court would handle it. Mr. Carpenter observed that for two sessions of Legislature attempts were made to pass similar legislation; but the alcohol limit was raised to .18%. If progress is to be made, courts should require everyone with B.A. .10% to be assessed. The bill needs expansion. In response to Mr. Carpenter's comment, Chairman Anderson advised a Bill Draft Request of the Senate addressing this issue will be forthcoming. Chairman Anderson advised A.B. 91 is scheduled for Tuesday's work session. The only amendment to be drafted is for additional language on page 3 for opportunity for other alternatives in lieu of payment, community service. Mrs. Steel agreed with Mr. Carpenter on .18% blood alcohol. It is higher than .10% for adults under the influence. Minors should probably have a lower blood alcohol level. Minors are not supposed to be drinking at all. It is against the law. Why should minors have a higher tolerance level than adults? Chairman Anderson suggested the point could be addressed in a separate bill draft rather than include it in this particular one. Both issues may be lost because of the fiscal impact. Research staff was requested to research the concern in that area. Mr. Perkins understood persons under the age of 21 would undergo the evaluation at any alcohol content. The B.A. .18% threshold is irrelevant. Chairman Anderson agreed. Further, in regard to Mr. Carpenter's issue, Mr. Perkins understood the B.A. .18% reason for the evaluation program; but, it was to provide treatment for offenders with an addiction problem. Mr. Carpenter responded it was a compromise. It was his feeling that research has shown before one is charged with a DUI, he has done that act many times. He thought progress could be made if every offender did have to have an assessment. In reality, it should be mandatory to require everyone receiving a conviction to be assessed. Chairman Anderson defined the purpose of A.B. 91 as an evaluation of juveniles between 18 and 21 years. Chairman Anderson closed the hearing on A.B. 91 and opened on A.B. 92. ASSEMBLY BILL NO. 92 - Requires revocation of driver's licenses of certain juveniles who drive under influence of intoxicating liquor or controlled substance. Robert L. Crowell, Esq., Crowell, Susich, Owen & Tackes, Ltd., testified he was representing Farmers Insurance Company. Farmers Insurance Company supports the concept of A.B. 92. They have a concern on Page 1, ll. 21 and 22. It would preclude an insurance company from receiving the driving record of a juvenile convicted of driving under the influence. The driving record is critical in evaluating the risk of insuring the individual. In essence it would require an insurance company to write a risk blind. If this bill were passed, there would be no parent incentive to report juvenile's DUI conviction to the insurance company. In the event of a juvenile accident, plaintiff's trial attorney could receive from Department of Motor Vehicles the juvenile's driving record; however, the insurance company could not. Mr. Crowell stated it seemed anomalous that A.B. 95 would require the type of violation set forth in A.B. 92 to be held on the juvenile's record for seven years. For those reasons, in order to allow an insurance company the ability to rate a risk for the benefit of the insurance population in general, he strongly suggested and requested the committee to delete the prohibition to remove the insurance company's ability to acquire and receive information regarding a juvenile's driving record from the Department of Motor Vehicles. Chairman Anderson noted the current law N.R.S. 62.226 allows the juvenile court judge that discretion. Mr. Crowell pointed out in A.B. 94, page 3, the discretionary right to suspend a juvenile driver's license for merely drinking as opposed to DUI. A.B. 92 goes a step further and prohibits if convicted of DUI. They have the same concern with A.B. 94 but not so great because it does not involve a driving or moving violation. It involves merely the consumption of alcohol by a minor. On the other hand, A.B. 94 would preclude an insurance company from information regarding revocation or suspension for six months. Mr. Sandoval mentioned he was trying to reconcile A.B. 92 and A.B. 95. Assistance in this regard would be helpful to him. He requested to hear the process for insurance companies in obtaining DMV records. Currently, a driver's history can be obtained, except suspensions under N.R.S. 62.226. This record is used in rating an insurance risk. Chairman Anderson inquired if a family's insurance rates would increase because of DUI violation by their child. Mr. Crowell advised that was correct and deferred to Mr. Greg Harwell, Legislative Representative, Governmental Affairs, California State Automobile Association (AAA). He confirmed that as a result the family's insurance rate would remain high two or three years. Any future moving violation infraction would probably result in no deduction. Ms. Buckley remarked there would be no reason not to allow the insurance companies to receive information regarding revocations. To not do so would conceivably cause everyone's rates to increase. She asked what the rationale of the A.C.R. 71 Study Committee was for that particular item. Chairman Anderson surmised it was a bill drafter's point so it is consistent with N.R.S. 62.226. Mr. Greg Harwell, Nevada (AAA), testified his company has the same concerns as Farmers Insurance and encouraged the committee to make the necessary amendments. Mrs. Judy Jacoboni, Mothers Against Drunk Driving (MADD), responded to this concern. Their intention in suggesting this type of legislation was not to clean up the entire N.R.S. 62. They have a very narrow focus. The purpose was to deter underage drivers from drinking. The proposed language is consistent with the rest of N.R.S. 62. Presiding Chairman Buckley recognized Mr. Carpenter. He inquired of Mrs. Stadler of MADD why penalty for minors was more severe than for adults. A.B. 92 provides mandatory license revocation for six months for persons under 18 years convicted of DUI. Previously, it was a discretionary provision of the juvenile court judge. They would like to see it become a mandatory provision because there is no statutory requirement for license revocation for juveniles. The 90 days proposed in A.B. 94 is for the purchase or consumption of an alcoholic beverage which is a separate crime from DUI. They would also like juveniles who drink to lose their driver's license as well. Juveniles are less experienced drivers than adults. They are more at risk and over represented in crash data. If a juvenile is just beginning to drive and drinks, consumes, or possesses alcohol, he should lose his driver's license for a longer time than an adult because he is posing a much greater risk to society. Hence, MADD believes the longer penalty is appropriate. When they become an adult they may be more careful. Chairman Anderson closed the hearing on A.B. 92 and opened on A.B. 94. ASSEMBLY BILL NO. 94 - Requires revocation or delay in issuance of driver's licenses of certain juveniles who unlawfully purchase, consume or possess alcoholic beverage. Robert L. Crowell, Esq., Crowell, Susich, Owen & Tackes, Ltd., representing Farmers Insurance Company, testified they have the same concerns with respect to A.B. 94 that they had with A.B. 92. A.B. 94 speaks to the violation of merely consuming alcohol as opposed to consuming alcohol and driving under the influence. Their concern was not as major in this area. They recognize the fact the statute allows DMV not to disclose the information. As a policy statement, it was suggested the bill would require the revocation of a license. The mere fact that a license has been revoked should be analyzed for the risk associatedwith insuring the individual. For that reason they ask that the law allow an insurance company to receive information on revocation of a license. They do support the concept of A.B. 94. Chairman Anderson questioned if it was the intent of the insurance companies to have access to juvenile driving records before they obtained a driver's license. Mr. Crowell stated that was not their intent and is not reported to them now Mrs. Steel did not understand the need to access information unless it had something to do with juveniles drinking and driving as far as the court being required to report to insurance companies. Mr. Crowell replied her point was well taken. This bill, A.B. 94, does not involve actual driving; however, it creates in the law a revocation of a driver's license. The fact of a revocation is a driving record. An insurance company would be interested. Mr. Perkins expressed his opinion that insurance companies should be allowed to receive information for DUI offenses resulting in revocation. Ms. Ohrenschall surmised in the event of an injury accident, would the insurance company be exposed to a greater risk because the minor had a revoked license. Mr. Crowell did not believe it would be a factor. It is merely the rating in the rating process and the subsidy issue between one population of insured versus another. Under A.B. 94, the discretionary powers are taken away from the court. Mr. Carpenter believed the judge also has discretion to allow driving to school or work. He inquired if this provision was being deleted in the language of this bill. Chairman Anderson reiterated three proposed amendments heard in Las Vegas: Section 1, l. 3, part 1, change the age of 18 to 21; Section 1, l. 6, change the word "shall" to "may"; Section 1, l. 7, change 90 days to six months. Mr. Bruce Glover, Chief, Nevada Department of Motor Vehicles and Public Safety, Drivers License Division, testified currently juvenile information is not received in his department. The law provides for a restricted license for holders of a revoked license. An adult has to wait half the period of suspension before they have the opportunity to apply for a restricted license. Mr. Perkins requested research if a juvenile will be eligible for a restricted driver's license. Ms. Stroth inquired if a DUI revocation was eligible for a restricted license. Mr. Glover replied after half the time of a revocation, anyone can apply except in second offenses of DUI. Mr. Sandoval called attention to page 6 of A.B. 94, paragraph 2, allowing for a restricted driver's license. Ms. Monaghan outlined four concerns with A.B. 94: If driver's license is possessed, suspension is for 3 months; If no driver's license is possessed, suspension is for 6 months; Alcohol possession by a minor under parental supervision; Non-driving offense information provided to insurance company. Mr. Perkins advised subsection 1 addresses these acts being in violation of N.R.S. 202.020. This statute defines what is unlawful possession. It is not unlawful for a minor to possess alcohol if under supervision of parents or religious setting. It is only those minors that are in violation of this particular statute. Mrs. Steel mentioned possession is a term of art. It is defined as being in control of it. A minor can walk into a situation and be charged with possession because you are close enough to be able to have control of that substance whether you knew it was there or not. Possession needs to be defined as specific or a term of art. Chairman Anderson informed copies of N.R.S. 202.020 were provided to the committee attached as (Exhibit E). Mr. Greg Harwell, Nevada (AAA), testified their concerns are the same as expressed by Mr. Crowell's. His understanding is the rating factors do not become effective until the driver is licensed and placed on the policy. If a license is delayed six months at 15 « years, the insurance company would not know about it until they are 16 and they do get a license. Then their driving record will be considered once in possession of a valid license. Triple A does not believe that non-driving violations should warrant driver's license suspension. Whereas in A.B. 92 it is a driving offense and is appropriate. For purposes of clarification, Mrs. Stadler, MADD, stated the intent of the bill draft was to have the six months both for the minor with and without a driver's license. The A.C.R. 71 Study Committee made that change when reviewing recommendations. It was their intention the controlled substances and the alcohol would be treated the same rather than having the controlled substances at the discretion of the judge and making alcohol offenses mandatory. They would like to see those stay consistent with each other both on the mandatory terms. Chairman Anderson closed the hearing on A.B. 94 and opened on A.B. 95. ASSEMBLY BILL NO. 95 - Requires finding that juvenile was driving under influence of intoxicating liquor or controlled substance to be included in his driver's record for certain period. Mr. Greg Harwell, Nevada (AAA), testified in support of A.B. 95 and encouraged a vote in that respect. Information should be reportable to an insurance carrier. Mr. James J. Jackson, Nevada Public Defender's Office, commented on A.B. 91. To address the concern about 21 years of age in juvenile court, he proposed an amendment to page 2, section 3, line 39, to read "if a child who is within the jurisdiction of juvenile court." Having been a juvenile master, he informed the committee juvenile court can obtain jurisdiction up to age 21. By virtue of law typically they do not because at age 18 all offenses become adult offenses. To clear up the confusion, Mr. Jackson suggested changing the language to a child who is within the jurisdiction of the juvenile court and deleting reference to less than 21 years of age. Mr. Jackson offered to make himself available for the work session next week. Chairman Anderson felt it would be most helpful. Chairman Anderson reiterated proposed amendments to A.B. 95, page 2, ll. 24-26, a record for any offense that a child less than 18 years of age has violated the provisions of this must be included in the driver's license for the child for seven years after the date of offense, adding language for purposes of treatment. Ms. Monaghan noted the seven year record is too severe. Chairman Anderson closed the hearing on A.B. 95 and opened on A.B. 97. ASSEMBLY BILL NO. 97 - Requires offender convicted of driving under influence of intoxicating liquor or controlled substance for first time to be placed in program of treatment under certain circumstances. Chairman Anderson explained A.B. 97 has no major proponent. It was brought about by the concerns of members of the A.C.R. 71 Study Committee regarding first offenders and treatment program. Mr. Sandoval would like more historical perspective of what the bill is trying to accomplish. Chairman Anderson replied the concerns were who was going to pay the costs of treatment and in what manner. Mr. Sandoval inquired if it was elective for defendant and if the person still has to undergo all the penalties for first-time DUI. Chairman Anderson replied the reason was for the prosecuting attorney, page 3, ll. 33, to have the opportunity within ten days to request a hearing for evaluation. Mr. Carpenter requested clarification on the first DUI, two days jail time must be served. The proposed bill will reduce it to one day. Chairman Anderson advised it gives the opportunity to the district attorney to have an evaluation done. Mrs. Steel expressed the same concerns as Mr. Sandoval. First offense DUI violators are arrested and convicted. They are eligible for treatment program whether or not they pay for it. Treatment program is available for one whether ordered by a court or not. If a violator successfully completes treatment, she did not see why the offense was erased from record. She did not understand why it was being codified in the statutes. Mrs. Stadler of MADD stated the intent of this bill was on page 3, l. 43. If the court finds the offender is eligible, the court shall accept the notice of election. Currently, if an offender makes a notice of election, the court can deny the request and issue regular penalties. Testimony in rural areas received by the A.C.R. 71 Study Committee, disclosed judges did not want to approve notice of election and sentenced the standard penalties. If the offender meets the eligibility requirements and makes notice of election, this could make the court accept the notice of election. MADD does not have a stand on this bill in particular. Chairman Anderson informed there was a concern about the development of treatment practices in the rural areas as compared to the metropolitan areas. In some areas they were using more discretion than seemed justified. The intent was to require the courts to do this. It is important to receive treatment after the first offense rather than in prison. Rural areas used the prison system to accomplish the treatment program. Mr. Sandoval requested for his own edification the difference between someone who makes this election and is accepted into the program as against someone who does not. Chairman Anderson felt he could not answer adequately. Mr. Goldwater called attention to page 4, l. 5, if he is accepted he can be placed under supervision. If he is not, he has to serve his sentence. If he completes the treatment, his sentence will be reduced. Mr. Sandoval asked if it was a 24-hour difference because first offense DUI sentence is 48-hours incarceration. Under the proposal, it is 24-hours incarceration. Mr. Goldwater thought it was up to the discretion of the judge. Mr. Perkins did not read the bill as being a reduction from two days to one day. The statutes guarantee the minimum sentence for DUI which is currently a two- day jail term. The judge has discretion in other cases to sentence up to six months with higher fines. If he successfully completes treatment, he is guaranteed the minimum sentence. Chairman Anderson requested research staff to prepare an examination of the question of the amount of incarceration days a first-time offender would actually serve. Chairman Anderson closed the hearing on A.B. 97. There being no further business, the meeting was adjourned at 9:30 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary March 2, 1995 Page