MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session March 14, 1995 The Committee on Judiciary was called to order at 8:05 a.m., on Tuesday, March 14, 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: Speaker Lynn Hettrick, Assembly District 39 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Scott Doyle, Douglas County District Attorney Ben Graham, Deputy District Attorney, Clark County Terry Sanford, private citizen Susie McGregor, private citizen Sarah McGregor, private citizen Jackie Bess, private citizen Russ Swift, private citizen Dan Hammack, Nevada Highway Patrol Judy Jacoboni, Chapter President, Mothers Against Drunk Driving Nancy Tiffany, Unit Manager, Parole and Probation Mr. Carpenter began with a statement about yesterday's request for a bill draft request he received from the Attorney General (AG) asking that all political subdivisions, contractors, officers, employees of the state or any other agency or political subdivision be included in that request. Mr. Carpenter feels the Motion should be limited to what was made yesterday rather than expand as it was suggested by the AG today. Chairman Anderson announced a request for bill draft request dealing with defining a deadly weapon. ASSEMBLYMAN SANDOVAL MOVED FOR COMMITTEE INTRODUCTION FOR REQUEST FOR BILL DRAFT. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. * * * * * BDR 3-644 Revises provisions governing tort claims against government. Chairman Anderson outlined the BDR was "reducing the time to file certain claims, broadening the authority of the AG handling tort claims against the State of Nevada, revising the procedure regarding such claims, and providing other matters properly relating thereto." The introduction failed as no motion was brought forth by the committee. ASSEMBLY BILL 185 - Includes within crime of involuntary manslaughter violation of certain traffic laws resulting in another person's death. Ben Graham, Clark County District Attorney's Office, District Attorney's Association, stated A.B. 185 was brought as a result of two deaths in a vehicular accident in Douglas County. Under the current statutes, this type negligence does not arise to criminal negligence. Mr. Graham provided an example of a person falling asleep at the wheel of a vehicle which resulted in the death of a young girl. This did not result in criminal negligence and it is those types of incidences the Clark County District Attorney is concerned with. Scott Doyle, Douglas County District Attorney, provided background data regarding A.B. 185 stating under the Nevada Revised Statutes currently manslaughter can be either a felony or a gross misdemeanor. He elaborated if there is a lawful act performed in an unlawful manner, for over 20 years the Nevada Supreme Court has held in order to convict on the felony or the gross misdemeanor, there must be gross or criminal negligence present and be able to prove that element beyond a reasonable doubt. There are many vehicular accidents where there is negligence but the proof of that negligence does not rise to the criminal negligence level. Currently, for a simple negligence incident, violating a traffic offense would be charged under the vehicle code such as improper lane change, improper U-turn, etc. That is the charge that goes to trial and results in a conviction. He feels the charging decision needs to be better recognized in the Criminal Justice System. He is recommending the law provide another category of manslaughter--misdemeanor manslaughter--which is what A.B. 185 proposes. The passage of A.B. 185 would enable them to recognize the existence of a fatality in a vehicle accident with simple negligence involved. He concluded that A.B. 185 is good public policy and it fills a gap in the current law. Further information provided by Mr. Doyle is attached as (Exhibit C). Mr. Carpenter asked how passage of A.B. 185 would affect the civil liability issue of a case. Mr. Doyle stated if a person enters a plea of "no contest" then the result would be the same as in current law. The plaintiff in the civil action would still have to prove the existence of negligence because liability would not have been established. If the person enters the plea of "not guilty" then liability would be established in the parallel civil proceeding and the plaintiff would simply have to prove their damages. He surmised this was no different than how the law currently reads. A.B. 185 simply better recognizes within the Criminal Justice System that there is a fatality. Further discussion was held between Mr. Carpenter, Mr. Graham, and Mr. Doyle regarding the civil implications of the passage of A.B. 185. Speaker Lynn Hettrick, Assemblyman District 39, the primary sponsor of A.B. 185, testified briefly in support of A.B. 185 and urged the committee to consider passage of the measure as being a very important piece of legislation. Further, he asserted additional penalties were needed for even simple negligence cases. Speaker Hettrick stated the movement of the penalty area in the bill is not huge and is appropriate. In addition, with regard to Assembly Bill 186, Speaker Hettrick stated the people testifying on both A.B. 186 and A.B. 185 were better equipted to address the concerns of the committee and he appreciated being allowed to make a brief statement regarding his bills. Mr. Perkins stated his concerns are 1) in the rural areas city attorneys rather than district attorneys would be making some of these decisions and may not have the necessary experience; 2) in the case of a DUI resulting in death, it may be decriminalized to some extent; and 3) possibly taking a current statute with a high penalty and allowing the felony to be pled to a lesser offense. Mr. Doyle stated he did not see any lessening of the offense occurring with the passing of A.B. 185. He believes A.B. 185 would enhance the tools already available to law enforcement and prosecutors to more properly deal with the behavior when an accident is involved causing a fatality. He explained there was a gap in the criminal code which would be properly filled with A.B. 185. Mr. Perkins stated many fatalities occur throughout our state each year that are not charged out as felonies because it is a simple negligent act. Ms. Ohrenschall asked if there was any way the bill, in its present form, would prevent a district attorney from plea bargaining down a DUI death into a misdemeanor situation. Mr. Doyle called attention to lines 25-26, on page one of the bill stating that would not be a concern. Ms. Ohrenschall also addressed the possibility of a paper crime (no proof of insurance, etc) and a fatality occurred, would this bill affect such an incident? Mr. Doyle described the theory of proximate cause in that failure to carry insurance was not the cause of the accident which resulted in a fatality. Ms. Steel was not convinced that A.B. 185 could be used as a plea bargaining tool and does not want to see any decriminalization of the laws so perhaps some stronger language could be in the statute. Mr. Graham again clarified that type of compromise would most likely not occur. Presiding Chairman Buckley asked Mr. Graham and Mr. Doyle to look at the language in the statute to see if it needed to be strengthened to alleviate Ms. Steel and Ms. Ohrenschall's concerns. Mr. Terry Sanford, a private citizen, testified in support of A.B. 185. His prepared statement is attached hereto as (Exhibit D). Mr. Sanford emotionally described the loss and sadness surrounding the death of Jasen Swift and Dustin Boesch on October 14, 1993 in Douglas County, Nevada. Jasen and Dustin, both corporals in the United States Marines, were driving on Highway 395 near Minden, Nevada when they collided with a stalled truck and rig sprawled over both lanes of the highway. The truck was driven by an underaged driver attempting to make an illegal U-turn while the legal owner and operator of the rig slept in the sleeping compartment of the truck. Mr. Sanford's demonstrative testimony included the ring he gave to Dustin and the wooden display case containing Dustin's ashes. Mr. Sanford, having been a truck driver for several years, concluded by stating the fatalities occurred as a direct result of the negligence and stupidity of the truck drivers. Now, these truck drivers are walking free and just received a fine. Ms. Susie McGregor, a private citizen, addressed Mr. Carpenter's question by stating the plea or sentence in the criminal action is totally irrelevant to the civil suit they currently have pending. Ms. McGregor is the mother of the late, Corporal Dustin Boesch, who died in the accident described above. Ms. McGregor testified her son was in Somalia and Desert Storm and she was uncertain if he would ever return. But he did, only to be killed needlessly and recklessly on a Nevada highway. Ms. McGregor expressed how deeply saddened the entire family has been by her son Dustin's death especially her daughter, Sarah since Sarah's father has been absent most of her life and now her older brother is gone too. Ms. McGregor introduced her mother, Jackie Bess whose statement is attached hereto as (Exhibit E). Ms. McGregor emotionally described the activities her son will never be able to participate in now that he is deceased. She was unable to see her son before his funeral because his body was so dismembered. A photograph of the accident scene and Ms. McGregor's prepared statement is attached hereto as (Exhibit F). Sarah McGregor, Dustin's 13 year old sister, read a statement from Dustin's fianc‚ about how their life would have been if he were still alive. Photographs of Dustin and his fianc‚ were held up during this testimony. Sarah also described how the loss of her brother has affected her life. Russ Swift, private citizen from Maine, and father of Jasen Matthew Swift, testified in support of the A.B. 185. Mr. Swift's prepared testimony is attached as (Exhibit G). Mr. Swift described the pain and horror the Swift family has experienced as a result of the above accident taking the life of their son, Jasen Swift. Mr. Swift also described the negligence of the truck drivers involved in the accident in that they failed to register his company for interstate commere, neglected to maintain log books, neglected the hours of service rules, drove without valid drivers licenses, failed to do anything to prevent the crash, attempted an illegal U-turn. He explained the outcome of the case for these two truck drivers was three traffic citations, an $1,800 fine, and a six-month suspended jail sentences. But his boy is dead. He elaborated by stating one of the truckers had an accident in 1981 which resulted in a fatality and he (the truck driver) was not held accountable for his negligence at that time either. Mr. Swift concluded by urging the committee to pass A.B. 185 so perhaps other families will not suffer the same tragedy he has. Major Daniel Hammack, Nevada Highway Patrol, stated his division wholeheartedly supports the basic purpose behind A.B. 185 to include vehicle manslaughter within NRS 200.070. However, they are concerned with the penalty phase of the crime being defined as a misdemeanor and judicial discretion should classify the offense as either a felony or gross misdemeanor based upon the set of facts. Also, A.B. 185 should include Chapter 706 of the Nevada Revised Statutes for Motor Carrier Safety violations. In response to Chairman Anderson's inquiry, Major Hammack stated he had compared A.B. 185 with A.B. 207 and he felt the bills were essentially the same. Major Hammack stated there are four specific felony laws within the traffic statutes: 1. Felony-reckless; 2. Felony-DUI; 3. Alluding a police officer; and 4. Disregarding an emergency roadblock. Judy Jacoboni, Chapter President, Mothers Against Drunk Driving (MADD) stated they would support passage of A.B. 185 but they prefer the language on page two of A.B. 207 instead. She expressed her concern that the legislative intent be made very clear regarding the possibility of someone pleading down to a lesser-included offense as was earlier expressed by Ms. Steel and Ms. Ohrenschall. Chairman Anderson requested comments from Mr. Doyle and Mr. Graham. Mr. Doyle suggested the language in this bill could be comparable to the language in the DUI laws. He also agreed with the inclusion of Chapter 706 to the bill. He explained there currently is no punishment for simple negligence only gross or criminal negligence. Mr. Perkins, in opposition to Mr. Doyle and with regard to public policy, stated a negligent act which causes a loss of life should not be treated as a misdemeanor. A lengthy discussion was held regarding simple negligence and gross negligence in relation to fatal vehicular accidents and the penalties for such charges. This discussion led to further comments regarding punishment, proving gross negligence, and establishing mens rea which refers to criminal intent. Several hypothetical situations were presented which fueled the discussion. Chairman Anderson adjourned for a break at 9:35 a.m. The committee reconvened at 9:50 a.m. ASSEMBLY BILL 207 - Revises punishment for involuntary manslaughter and includes within crime violation of certain traffic laws resulting in another person's death. Chairman Anderson stated in order for the committee to concentrate their efforts on one bill, they would take action on A.B. 207 presently. ASSEMBLYMAN CARPENTER MOVED TO INDEFINITELY POSTPONE A.B. 207. ASSEMBLYMAN HUMKE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. ASSEMBLYMEN MANENDO, BATTEN, AND SCHNEIDER ABSENT. Chairman Anderson brought A.B. 185 back to committee for discussion. Mr. Neilander explained the possible amendments as a result of discussion on this bill. First, the addition of Chapter 706 at line 21, page one, after Chapter 484 insert "or Chapter 706." The second amendment addresses the penalty phase of the bill to increase the punishment for simple negligence to a gross misdemeanor which would be achieved by amending page two, lines 10-11 and deleting the phrase "is guilty of a misdemeanor" and inserting the language used in the existing law as seen on page 2, lines 4-5 which provides for the judge's discretion. Mr. Neilander further explained that Chapter 706 deals with commercial motor carriers, persons who are regulated because they are involved in transportation for hire. Ms. Buckley concurred the bill, with the amendments, would be a first step to filling the void in this law. ASSEMBLYMAN PERKINS MOVED TO AMEND & DO PASS A.B. 185. ASSEMBLYMAN HUMKE SECONDED THE MOTION. Further discussion was held addressing the amendments of the bill. Mr. Perkins stressed the discretion for charging the offense still lies with the judge, the prosecutor, and even the arresting officer on the scene of the accident. Mr. Sandoval expressed his concern in bringing the offense up to a gross misdemeanor the prosecutor would have to prove gross negligence and he feels there may be problems in this area which could lead to people being let off on technicalities. A discussion was held about the charge of gross misdemeanor being heard in district court rather than a lower court. Mr. Graham stated determination of whether it is a felony or a gross misdemeanor is often left to the judge at the time of sentencing and there is discretion remaining with the courts. Ms. Steel, Ms. Buckley, Ms. Ohrenschall, and Mr. Schneider expressed their concerns for the death of a human (through simple negligence in an automobile accident) with no intent may result in the charge of gross misdemeanor. Ms. Steel commented she was uncomfortable voting on A.B. 185 today. Chairman Anderson brought the motion, including amendments as outlined by Mr. Neilander, back to committee for vote. THE MOTION FAILED WITH ALL PRESENT. ASSEMBLYMEN PERKINS, HUMKE, MONAGHAN, OHRENSCHALL, MANENDO, AND ANDERSON VOTED YES. * * * * * * ASSEMBLYMAN PERKINS MOVED TO AMEND & DO PASS A.B. 185 TO INCLUDE CHAPTER 706 AT LINES 15 AND 21. ASSEMBLYMAN HUMKE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. * * * * * * SENATE JOINT RESOLUTION 2 - (OF THE 67TH SESSION) Proposes to amend Nevada constitution to provide expressly for rights of victims of crime. ASSEMBLYMAN BUCKLEY MOVED TO DO PASS S.J.R. 2 (OF THE 67TH SESSION). ASSEMBLYMAN BATTEN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. * * * * * * Chairman Anderson assigned S.J.R. 2 to Mr. Manendo for floor presentation. ASSEMBLY BILL 186 - Revises provisions governing evidence considered at hearing to determine sentence to be imposed on criminal defendant. Mr. Doyle, Douglas County District Attorney's Office, spoke in support of passage of A.B. 186. He stated currently at the time of sentencing the court receives Victim Impact Statements to take into consideration at the time of sentencing. The law states the victim must appear personally or through counsel. A.B. 186 would allow the victim to appear, counsel for the victim to appear, or a personal representative of the victim to appear. The bill also expands the definition of a victim. Mr. Doyle stated the passage of A.B. 186 would represent good public policy and provide the court with the full impact the crime has had on the victims. The personal representative would be able to provide accurate information to the judge at the time of sentencing. Mr. Doyle explained a representative from MADD could testify on a DUI case on behalf of a victim who, because of emotional difficulties, cannot testify yet still want their concerns heard. Mr. Doyle stated, upon Chairman Anderson's inquiry, a paralegal would be entitled to appear if the victim requested they act as their personal representative at sentencing. Mr. Doyle replied, upon Ms. Steel's inquiry, a court can consider evidence over and above what was presented at trial. Ms. Stroth stated she would prefer line 24 state "a relative of a person described in NRS 217.060." Dave Sarnowski, Chief, Criminal Division, Attorney General, testified in support of A.B. 186. However, he believes the bill should include "entities." A governmental entity may want to make a statement to the judge at the time of sentencing. He stated possible language could be changed at page one, line 21 between the words "person" and "against" by adding "or entity, either private or governmental." Nancy Tiffany, Unit Manager, Parole and Probation, testified in support of A.B. 186. She emphasized the dramatic testimony today showed victims sometimes are not emotionally able to talk about the crime. The victim should be allowed to have someone else speak for them if they are unable to do so. Chairman Anderson clarified the amendments regarding the expansion of the definition of a victim as identified by Ms. Stroth and the other amendment was the broadening of the language to include a private or governmental entity. ASSEMBLYMAN OHRENSCHALL MOVED TO AMEND & DO PASS A.B. 186. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. No further business before the committee, the meeting adjourned at 10:50 a.m. RESPECTFULLY SUBMITTED: ______________________________ Joi Davis, Committee Secretary APPROVED BY: __________________________________________ Assemblyman Bernie Anderson, Chairman __________________________________________ Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary March 14, 1995 Page