MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session March 7, 1995 The Committee on Judiciary was called to order at 8:10 a.m., on Tuesday, March 7, 1995, Chairman Humke 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 Ms. Dianne Steel Ms. Jeannine Stroth GUEST LEGISLATORS PRESENT: None STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: None Chairman Humke declared this meeting was a work session beginning on A.B. 91. He called upon Mr. Neilander, Research Staff, to give explanation of work session document relative to today attached as (Exhibit C). He outlined major provisions of each of the bills and proposed amendments or problem areas raised during the initial committee hearings. ASSEMBLY BILL NO. 91 - Requires evaluation and treatment relating to abuse of alcohol or other drugs for juvenile offenders under certain circumstances. ASSEMBLYMAN STEEL MOVED TO AMEND A.B. 91 TO DELETE "LESS THAN 21 YEARS OF AGE" AND INSERT "THE COURT OF PROPER JURISDICTION"; TO AUTHORIZE THE JUDGE TO ORDER COMMUNITY SERVICE IN LIEU OF PAYMENT FOR TREATMENT FOR APPROPRIATE INDIVIDUALS; AND, INFORMATION CONCERNING THE REVOCATION BE REPORTED TO AN INSURANCE COMPANY. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. For clarification, Mr. Carpenter noted anyone under the age of 20 would have to be evaluated. If the evaluation found they needed treatment, they would have to go for treatment. Mr. Neilander responded in the affirmative. Mr. Carpenter asked if A.B. 97 was similar to A.B. 91. Mr. Neilander advised A.B. 97 was not specific to juveniles. It applies to the adult population. Ms. Monaghan mentioned the records of A.B. 95 would go into A.B. 91. She expressed a concern of the violation staying on a driving record for seven years. Mr. Neilander called attention to A.B. 95, page 2, l. 24, "a record of any finding of that a child who is less than 18, has violated the DUI provisions must be included in the driver's record of that child for seven years after the date of the offense." This provision is the same for an adult. Ms. Monaghan remarked, "Luckily, her kids are all older because it is going to kill people who have young teenagers." Mr. Anderson requested clarification from Ms. Monaghan if she perceived we are having an unreasonable expectation of children. Ms. Monaghan stated she was not concerned with that. Juvenile's insurance is generally under their parents' names. The seven-year record is of concern. Chairman Humke pointed out we were discussing A.B. 91. Members may wish to think of these bills in a coordinated fashion, but we will deal with A.B. 95 when we get there. Mr. Goldwater requested clarification assuming A.B. 91 is enacted as law would you need a conviction before it appears on your driving record. Mr. Neilander referenced Section 1, l. 10. where the conviction would appear first. This is a condition of later treatments. Mr. Carpenter recalled a similar bill vetoed by the Governor because the length of stay was too long. When a situation arises where it is over a year, the constitutionality question requires a jury trial. This bill does not have a time limit in it. He felt it should be researched because it was an issue when the bill was vetoed. Chairman Humke remarked the U. S. Supreme Court has found that juveniles do not have a right to jury trial in any circumstance. A.B. 91 does deal with juveniles. Persons 18 to 21 years of age arrested for alleged offense, if they attain the age of adulthood before court, still have the benefit of the jurisdiction of the juvenile court. Mr. Neilander responded affirmatively. In addition, 18 to 21 year olds in adult court would also be subject to these provisions. For purposes of drinking alcohol, Nevada is a 21-year old legal drinking age state. In relation to Mr. Carpenter's request he would like the committee to have information of the prior bill, look at the issues raised, see if there is a right to a jury trial for certain juvenile offenders, and how the length of treatment may violate some constitutional provisions. This request was characterized by Mr. Neilander as purely legal in nature, and he could not respond to it. Mr. Neilander understood the motion made was to amend and not to amend and do pass. He stated he could transmit the amendment and bring it back to the committee. At that time he could bring back the research that Mr. Carpenter has requested. In response to the concern raised by Ms. Monaghan and Mr. Goldwater, Ms. Buckley wondered how long insurance companies were keeping convictions on the record. As a practical matter if it is only kept three or four years, perhaps our concern with seven years is not valid. For the purposes of clarification and not for testimony, Mr. Graham of the Clark County District Attorney's Office stated the seven year provision is provided for enhanced penalties for driving under the influence. If during any seven year period a person receives a second DUI arrest, the penalty and minimums are increased. It is from the date of offense. Mr. Graham suppositioned: if you had a DUI under this bill with a .01% is this the first DUI for the record? Six years later at 22-23 years of age a second DUI offense is committed. This bill will enhance the penalty for second DUI, and the second adult DUI would make it a felony. He asked the committee if this was their intent. The other aspect with regard to more than six months potential punishment is when you get into mandating a jury trial. Right now you have the right to refuse a blood alcohol or a breath test. Mr. Anderson appreciated Mr. Carpenter's sentiment and recalled the particular bill. He felt those concerns were not at issue in A.B. 91. The intent of A.B. 91 is to put 18-21 year old people into a voluntary treatment program. Mothers Against Drunk Drivers (MADD) recommended this legislation. It is an important factor to keep in mind, enrollees have stipulated their guilt to the offense. It is not the same as persons who are mandated into the program with no jury trial. We are dealing with a separate set of problems than the ones that came up in the previously vetoed bill. Chairman Humke clarified the motion to amend with Ms. Steel. Mr. Anderson alluded to whether or not the treatment dispensed by the juvenile court judge would be discretionary or mandatory. Ms. Steel was asked if she wished to include in her motion, page 3, l. 8, change "shall" to "may". Ms. Steel responded affirmatively. Chairman Humke recognized it is included in the motion. Mr. Carpenter felt the word should remain "shall". Otherwise, the purpose of the bill is defeated. He understood we are trying to get these young people into treatment. He did not wish to agree as a seconder of the motion with this insertion. Ms. Ohrenschall wished to invite Mr. Graham to testify in explanation of the difference between the young man submitting himself to the B.A. or refusing the test. The Chairman advised this is a work session and testimony is not solicited. Ms. Ohrenschall withdrew her question if it was inappropriate. One of the difficulties the Co-Chairmen found in managing the committee, yesterday one of the witnesses in regard to a bill scheduled later in the week remarked he did not get a chance to testify. Now we are faced with the prospect of re-opening for more testimony. Obviously, testimony will not be heard at work sessions. Mr. Graham is offering additional staff liaison assistance to this committee. Members were kindly requested not to invite witnesses to the microphone. Chairman Humke declared that Ms. Steel's motion failed for lack of second. Ms. Steel recited the same motion: ASSEMBLYMAN STEEL MOVED TO AMEND A.B. 91 TO DELETE "LESS THAN 21 YEARS OF AGE" AND INSERT "THE COURT OF PROPER JURISDICTION"; TO AUTHORIZE THE JUDGE TO ORDER COMMUNITY SERVICE IN LIEU OF PAYMENT FOR TREATMENT FOR APPROPRIATE INDIVIDUALS; AND, INFORMATION CONCERNING THE REVOCATION BE REPORTED TO AN INSURANCE COMPANY. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. Under discussion, Chairman Humke advised the bill could be referred to subcommittee or take a vote to amend A.B. 91 or send it to the floor for the purposes of being re-printed and re-referred back to committee. Ms. Buckley inquired if Mr. Neilander could investigate whether there are constitutional problems and bring back to the committee. Mr. Neilander advised he could request the amendments and bring them back to the committee. Perhaps, he could circulate among committee members to get a consensus of whether to proceed in a subcommittee or work session. Chairman Humke clarified the motion is not to amend and refer, but rather amend. There being no further discussion, the Chair called the question. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. ASSEMBLY BILL NO. 92 - Requires revocation of driver's licenses of certain juveniles who drive under influence of intoxicating liquor or controlled substance. Mr. Neilander stated this legislation is a penalty provision. If one is convicted of DUI, their license is revoked. Major provisions are if a child less than 18 years is found guilty of DUI, the judge is required to revoke the driver's license for six months. The issue is the current DUI law requires an adult driver's license to be revoked for a lesser period of time than a juvenile. There is a provision that requires revocation information not to be reported to insurance companies. That provision was taken from the statute that addresses possession of alcohol and controlled substances by juveniles. It was also suggested to raise the age from 18 to less than 21 years of age. Mr. Perkins advised the A.C.R. 71 Interim Study Committee did address whether or not the age should have been 18 or 21 years. He recalled from testimony and discussions of the Interim Study Committee the intent to go to 18 years rather than 21 years because juveniles between 16-18 years were the focus group. This group could be more impacted by the revocation of a driver's license. ASSEMBLYMAN STEEL MOVED TO AMEND A.B. 92 TO DELETE IN SECTION 1, SECTION 4.B. AND DO PASS. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. Mr. Manendo requested clarification if revocation would be reportable to insurance companies. Ms. Steel responded affirmatively. Chairman Humke asked Mr. Neilander if there was a discrepancy when a first-time adult DUI offender driver's license is revoked for ninety days, and the first-time juvenile DUI offender driver's license is revoked for six months. Chairman Humke asked if this was the desire of the movant and the seconder. Ms. Steel responded affirmatively. Ms. Steel made a proposed amendment to the motion. After clarification from research staff, Ms. Steel withdrew her proposed amendment to the motion. Mr. Schneider directed a question to Mr. Perkins regarding statistics of DUIs from the 16-18 and 18-21 year old groups, if it was discussed during the Interim Study Committee. It seemed to him in Las Vegas, DUIs with major injury or death are all over 21 and 30 years old. He asked if the 16-18 year old category is tapering down from what it was 10-15 years ago. Mr. Perkins did not recall any statistics. This age group was addressed because it was most easily corrected before later transgressions. Mr. Carpenter inquired what the current law is for a juvenile DUI offender. Mr. Neilander advised they are under the jurisdiction of juvenile court. He will check Chapter 62 of N.R.S. to clarify. Mr. Carpenter surmised that A.B. 92 would make it mandatory revocation for six months. He asked if there was a constitutional problem treating juveniles differently than adults. Mr. Neilander replied juveniles are treated differently throughout the N.R.S. both criminally and civilly. Mr. Neilander will check with legislative counsel on constitutionality issue. Chairman Humke pointed out to Mr. Carpenter there is a great amount of law that shows a juvenile may be treated differently. There is a rational basis that goes to a concept of a privilege known as a driver's license. The state does not recognize a right to a driver's license. Ms. Monaghan commented in juvenile justice system overview the Department of Motor Vehicles reported 314 revocations under 21 years of age. In 1992, there was a total of 432; in 1993, 240. She inquired why the Interim Study Committee recommended not reporting revocation to insurance companies. Mr. Anderson responded the set of recommendations presented to A.C.R. 71 Interim Study Committee was a mirrored recommendation with other statutes currently existing. He believed it was a bill drafter's process of trying to keep conformity within the statutes relative to the insurance question. Chairman Humke requested the pleasure of the committee. After members discussed their support and disparity of treatment for juveniles, the Chair called for the question. THE MOTION CARRIED. (ASSEMBLYMAN CARPENTER VOTED NO, ALL OTHERS VOTED YES.) 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. Under the current law, the judge has discretion to revoke the driver's license for alcohol violations. Ms. Monaghan reiterated three of her concerns: In possession of driver's license, revocation for three months; no driver's license, delay of six months; and non- moving violation reported to insurance company. Mr. Neilander advised this bill would prohibit release of information to insurance carriers. Mr. Anderson advised of the intent for a harsher penalty for juveniles without a driver's license. Mr. Goldwater stated the previous and present bill were not only penalties on the juveniles by revocation of driver's license but also a penalty on the parents. He supported the previous bill because the greater good was served. In this bill a minor in possession is truly a penalty on the parents. Even if it is at the discretion of the judge, he felt he could not support the bill. Ms. Steel had no problem with penalizing a parent who is responsible for their child and their actions. This will increase parental involvement if they have to scrutinize their child more frequently. She requested clarification of actual and constructive possession, two different types of possession. A minor could be in constructive possession and not have a clue he is in danger of violating this bill. Mr. Neilander pointed out in the work session document and N.R.S. 202.020, attached as (Exhibit D), that it does provide a definition of what is included. He was not familiar with any cases that construe constructive possession relative to this provision of N.R.S. He was not aware of that issue in this context. Ms. Steel stated she would be more comfortable if it were actual possession. Mr. Perkins advised he was not concerned about the constructive possession argument because it has not been a problem. It does become a discretionary item at times. There is a burden of proof to satisfy. He felt the delay of the license should be for ninety days rather than six months. Chairman Humke related a personal circumstance involving his daughter going to a private residence party where alcohol was served by parents. Their parental advice was there would be no questions asked if their daughter telephoned for them to pick her up. He felt parents always have an obligation to participate in both the prevention and in the punishment. Ms. Stroth responded to Mr. Goldwater's comments. As a mother of two teenagers at one time, she would have appreciated the extra backup this bill provides to show the seriousness and consequences. When one decides to have children, certain commitments are made to be responsible for that child. Sometimes, when punishment is given, it is more difficult for the parent. A responsible parent is willing to make that sacrifice in order to teach that child and to bring that child up to have integrity and character and know the consequences of their decisions. Mr. Goldwater stated he was persuaded by the debate! He could only hope and pray that all parents are as kind and compassionate as the parents on this committee. ASSEMBLYMAN PERKINS MOVED TO AMEND AND DO PASS. ASSEMBLYMAN SANDOVAL SECONDED THE MOTION. Under discussion, Mr. Carpenter expressed his concerns and the difficulty to enforce. He stated he cannot support the bill. Ms. Monaghan and Ms. Ohrenschall expressed their support for the bill. Chairman Humke seeing no request for additional discussion, called for action on the motion. THE MOTION CARRIED. (ASSEMBLYMAN CARPENTER VOTED NO, ALL OTHERS VOTED YES.) 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. Neilander advised if this bill is passed, reconciliation is needed with A.B. 91 if it also passes. Clarification is needed to address the issue of treatment records not open; but, the fact of the conviction would be a matter of record. Chairman Humke announced Mr. Perkins and Ms. Steel are excused for the remainder of the hearing. Mr. Sandoval asked whether the initial conviction could be used in a subsequent proceeding. If that is the intent, should the bill be amended for the conviction to be used in a subsequent proceeding. Mr. Neilander advised the proponents of the bill during the Interim Study Committee hearings did intend that these convictions be used for subsequent offenses. A provision amending N.R.S. 62 states they are no longer sealable. It does not specifically say they can be used as subsequent offenses. It is not crystal clear they can be used as subsequent offenses. Mr. Anderson disagreed over how the seven year purpose was to be accomplished. He felt the purpose of it was to make sure it was for treatment. Others saw this as an enhancement. For purposes of clarification, he hoped for an amendment to page 2, l. 26. Ms. Buckley stated she is not convinced the language is clear. If intent of the subcommittee was to ensure an additional penalty for a second violation with regard to driver's license revocation, it needs clarification. She noted a 1992 case that said a juvenile adjudication of driving under the influence was not a conviction for purposes of enhancement. If this provision was trying to correct that so it would be, it needs to be clearer. Mr. Sandoval inquired why juvenile first-time offender convictions would not be included in consideration for a subsequent offense. Mr. Anderson replied they did not have that discussion. He characterized the bills as the earlier we can reach first-time drug and DUI offenders, the better off we are. The question is how early should young people go into treatment program. As one progresses through multiple convictions for DUI, the chances for treatment as an alternative decreases after the first offense. The committee concurred in assigning A.B. 95 to a subcommittee. The Chairman appointed a subcommittee consisting of Assemblymen Sandoval and Buckley to further process this bill. Chairman Humke closed the work session on A.B. 95 and moved to 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. Mr. Neilander stated A.B. 97 requires first-time DUI offenders to be placed in treatment programs. The first-time offender must apply to the court to undergo a program of treatment if the person is classified as an abuser, agrees to pay the cost of treatment, and has served one day in jail or performed 24 hours of community service. The prosecutor is given the ability to request the hearing to determine eligibility of defendant. If the offender is determined to be eligible, the court is then required to place the defendant in the treatment program and impose a sentence that is suspended. If the offender successfully completes the program, the conviction is not set aside and remains a part of the defendant's criminal record. The court is required to reduce the sentence to not more than one day in jail which the person has to have already served to be eligible, but it cannot go beyond that. There is a great deal of discussion about the difference between offenders and treatment under this bill and existing law. Chairman Anderson asked him to briefly discuss it. The issue of that difference was raised. Under the existing law, the defendant may be sentenced to not less than two days nor more than six months or to perform 48 hours of community service. The fine is $200 to $1,000. Under the bill, if the person successfully completes treatment program, the sentence is reduced and not more than one day must be served in jail or 24 hours of community service. Essentially, the minimum is cut in half and they are not fined more than $300. Chairman Humke commented this bill seems to set up a distinction without a difference. He was not sure if it would have a great impact except to create confusion among our courts. Mr. Schneider concurred and remarked if he was a first-time DUI offender, he would try to get into treatment as a habitual offender in order to keep his record clean. One would get all the benefits as opposed to if one were at a friend's house watching the Super Bowl and had too many drinks and drove home. One could get hammered. It is a one time shot here, everybody is going to try to get into the program. Mr. Schneider stated he could not support this bill as it is. ASSEMBLYMAN ANDERSON MOVED TO INDEFINITELY POSTPONE A.B. 97. ASSEMBLYMAN SCHNEIDER SECONDED THE MOTION. Mr. Anderson commented A.B. 97 creates a problem where we are not going to pull anybody into the very program that we are trying to create because this could create a penalty greater and more unreasonable than the other alternatives. One would avoid treatment. There are a lot of problems with the bill and there is no way to save this particular piece of legislation. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. Mr. Anderson inquired of the Chair, if he would obtain for the committee a report from various judicial district courts as to how they have used the current stalking statute to verify whether it is being enforced under its current format. He suggested through the Nevada District Attorneys Association this material may be obtained. Hearing no objection from committee members, Chairman Humke advised the Co-Chairs will draft a written request for such a report. Ms. Stroth inquired when A.B. 109 was scheduled for work session. Chairman Humke believed a setting for next week can be amended. There being no further business, the meeting was adjourned at 10:20 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman David E. Humke, Chairman Assemblyman Bernie Anderson, Chairman Assembly Committee on Judiciary March 7, 1995 Page