MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session May 4, 1995 The Committee on Judiciary was called to order at 8:05 a.m., on Thursday, May 4, 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 Ms. Dianne Steel Ms. Jeannine Stroth GUEST LEGISLATORS PRESENT: Assemblyman William Z. Harrington, M.D., District No. 2 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Judge Ed Dannan, Reno Justice Court/State Judicial Commission Mr. Greg Harwell, Legislative Representative, Governmental Affairs, California State Automobile Association OTHERS PRESENT: (Continued) Ms. Judy Jacoboni, Lyon County MADD Ms. Laurel Stadler, Lobbyist, MADD Lieutenant Phillip A. Galeoto, Reno Police Department Ms. Kimberly A. Bennion, Manager and Legislative Counsel, Governmental Affairs, California State Automobile Association ASSEMBLY BILL NO, 509 - Provides for forfeiture of vehicle upon conviction for driving under influence of alcohol under certain circumstances. Assemblyman William Z. Harrington, M.D., District No. 2, sponsor, testified if an offender is a repetitive drunk driver this bill will take away his weapon. He considered drunk driving to be a similar type of crime as armed robbery, as lives are threatened by negligence. When an offender is arrested the car is impounded and the offender is taken into custody. The bill would provide the car be impounded for at least a week until the record of the offender is determined there is no previous DUI. If previously convicted of DUI, the car would stay impounded until the full court process was completed. If convicted a second time of DUI, the car would be forfeited. Personally, Dr. Harrington has treated many patients in the trauma center due to negligent acts of drunk drivers. Eighteen thousand people are killed each year by a drunk driver. Dr. Harrington provided a summary of 17 states' laws pertaining to forfeiture and sale of vehicles owned by someone convicted of impaired driving, attached as (Exhibit C). Mr. Sandoval inquired how the agency would address third party liens on a vehicle and requested Dr. Harrington's comments on victims receiving funds from sale of car forfeitures. Dr. Harrington advised of no preference where the money goes. Dr. Harrington referenced p. 2, ll. 1-5, if there is a bona fide security interest in the vehicle, the interest is paid off from the proceeds. In regard to cost of impoundment Mr. Sandoval asked if someone was found not guilty, they are only responsible for one week of the cost of impoundment. In lengthy proceedings, he questioned who would be responsible for cost of impounding the vehicle or paying for storage of the car for a six or seven month period. Dr. Harrington responded the local government who impounded the car for that length of time would be responsible. Mr. Sandoval pointed out it could be very expensive. Dr. Harrington suggested local entities might consider impounding it themselves; and, the bill would not dictate impoundment procedures. It would be left to the discretion of the entities. Mr. Batten commented with amendments this bill would be a very good piece of legislation. If an individual has been convicted out of state of three or four DUI's, how would it affect him in Nevada if he was arrested for first DUI? Would the other three or four convictions follow him? Convictions in any locale, Dr. Harrington advised would follow him. Mr. Batten inquired if it was over a five or ten year period of time. Dr. Harrington replied this bill does not specify time limits. Mr. Manendo was concerned about what happens to the wife when the husband gets a DUI. Now the wife and children have no vehicle with her spouse in jail. To alleviate hardship on the family, he suggested an amendment should be considered. Dr. Harrington replied that too often offenders find ways of evading jail. It is a concern but Dr. Harrington stated society has a right to protect itself. Mr. Manendo pointed out if they kill someone they will be behind bars for awhile. In those situations the car should stay with the family. In only 30-60 days incarceration, possible impoundment for 3-6 months was suggested. Mr. Manendo proposed the offender be responsible for impoundment fees for 3-6 months rather than car forfeiture. The idea of car forfeiture proceeds paid to victims is appealing. Consideration has to be given to how it will affect the family. Dr. Harrington emphasized this bill is very amenable to whatever amendments the committee determined would be in the best interest. Somewhere along the line, the weapon must be taken away from the offender. Ms. Buckley asked what if the driver is not the owner of the vehicle. Dr. Harrington advised it would be returned to the owner. Ms. Ohrenschall advised this is a community property state and asked what if the car belongs to a married person of a one-car family and the spouse declares a community property interest. Dr. Harrington advised this bill is similar to the drug laws, and the car would still be confiscable and salable. Ms. Ohrenschall inquired if the spouse would get fifty percent of the car forfeiture proceeds. Dr. Harrington advised he would have a problem with that; however, he would leave it up to the committee. Ms. Steel remarked it is a good piece of legislation and needs major amendments to make it palatable to the community. She was in agreement with Mr. Manendo in taking the car for a specified time period in the third offense. Next time, the car is forfeited. Instead of having the local entities pay for storage of the car, Ms. Steel suggested a lien on the car. In this manner it would be accessible to the family until conviction. There is also the concern of upside down in payments. After car forfeiture sale, the offender would still be liable for the difference on the car loan. Ms. Steel asked if Dr. Harrington would be amenable to amendment to provide for bodily injury. Dr. Harrington stressed the car should be taken away before the offender commits bodily injury and puts a victim in the trauma center. If all the drunk drivers could be stopped, it would take away over half of his business in the trauma center. He was in agreement with a trial period or upon third conviction of DUI, the car will be forfeited. If an individual owns multiple vehicles, Chairman Anderson inquired if it creates an inequity between the rich and poor. Dr. Harrington advised in sense it makes it more proportional because if the wealthy is driving a nicer car, he is going to lose a more expensive vehicle than the poor man. He indicated it would be difficult to impound all the vehicles that were not involved in the commission of the crime. Mr. Anderson advised in drug cases other personal property purchased with proceeds of illegal activity are confiscated; however, none of the vehicles would have been bought as the proceeds of drunk driving. Dr. Harrington commented the only legal recourse would be to confiscate the vehicle that was actually used in the commission of a crime. In regard to Mr. Manendo's concern, Chairman Anderson remarked there may be a single-vehicle family. Even if the vehicle is sold and the spouse gets half of the proceeds, the other half of the proceeds may not be sufficient enough to make the down payment on a safe vehicle for the family. Dr. Harrington advised the determination of type of vehicle to be forfeited will be left up to the committee. After discussion it was recognized that alcohol addiction covers a wide spectrum of age, sex, and economic conditions. Consideration must be given to the impact more heavily at one end of the economic spectrum than another. Chairman Anderson requested Dr. Harrington to submit for the record the summary from other states, attached as (Exhibit C). In penalizing the offender at the time of arrest, Chairman Anderson inquired if it creates a penalty prior to conviction. Dr. Harrington perceives this crime as similar to armed robbery where a person uses a handgun to rob someone. Until the final conviction the handgun is not returned to the offender. When lives are threatened, until declared innocent, the weapon is kept from them. Dr. Harrington understood the concerns and would be amenable to committee amendments to improve the bill. Ms. Judy Jacoboni, Chapter President, Lyon County MADD, testified in support of A.B. 509. Ms. Jacoboni was very glad this legislation was proposed. When the phone rings at MADD many times it is the concerned citizen asking for a law like this. It has an important deterrent effect. Car forfeiture needs to be in place for the second offender because he has already been given the chance. On the third offense, the offender will go to prison for a period of time, so car forfeiture will not be as important. All DUI offenders are potential killers. Allowing them to continue to drive is like giving them a license to kill. Swift and certain sanctions are very important. There were legitimate concerns expressed. Other states have similar legislation with provisions for community property and hardship. Ms. Jacoboni was sure amendments could be formulated in a work session. Vehicle forfeiture would be a very effective and a serious consequence for the second offender. Seventeen states have forfeiture laws and an additional fourteen states have some form of vehicle impoundment, vehicle license plate confiscation, or other similar laws. Some have time limits of five or ten years. Nevada has in place a provision where if a person gets a DUI, they have to show evidence of financial responsibility. If they do not maintain this financial responsibility which is commonly called the SR- 22 certificate, then they could lose their vehicle registration. Ms. Laurel Stadler, Legislative Representative, MADD, testified in support of A.B. 509. This sanction will provide an inconvenience to the offender which is nothing compared to the inconvenience that the victims face. Any DUI victim would gladly trade their inconvenience for only the loss of a vehicle. This bill will help to deter DUI offenders if they knew that this would be a swift and sure sanction. The time line would probably speed up the judicial process. Lieutenant Phillip Galeoto of the Reno Police Department, applauded Dr. Harrington's efforts and did agree it is a good deterrent. Lt. Galeoto provided experience from the car forfeiture process and envisioned some difficulties. He noted the bill had no fiscal impact; however, it will have a dramatic effect on local government. When legislature strengthened the forfeiture seizure laws by extending it to crimes beyond drugs, he was responsible for a forfeiture seizure program. Being very much in support of this law, he mandated all detectives immediately follow the rule to the letter. As a result a whole bunch of junk was confiscated that they could not get rid of. If the legislature is going to pass this bill, various avenues should be incorporated dependent upon the circumstances. The vast majority of forfeitures over the years are not usable in law enforcement. At the Reno Police Department, they have quit seizing vehicles to convert to undercover vehicles because it cost much more than it was worth. The process actually resulted in going to a whole different style of lease program because we discovered the vehicles seized were not reliable. By the time the cumbersome forfeiture process was completed, they did not make money, and in most cases lost money. Lt. Galeoto suggested an amendment on p. 1, l. 20, to change the word "must" to give a choice rather than require the police to impound the vehicle. In regard to local government paying for impoundment, if one ever saw the cost of impoundment at auction, one would be flabbergasted. The fee runs anywhere from $200-$800 for impoundment costs alone. He estimated impoundment costs could run as high as $1,000 if the vehicle is held until the court process is over. This would be an extraordinarily expensive process to local government. Most local governments no longer store the vehicles themselves because they have no funds or space. Instead, they pay for lease space in a lot. If every second DUI offense vehicle was towed off the road, it would definitely have a fiscal impact. Lt. Galeoto offered assistance in researching the vehicles involved in DUI cases. If an impounded vehicle was stored in a city lot, Chairman Anderson inquired if the city holds security responsibility for condition of vehicle during impoundment. Lt. Galeoto advised from the moment of towing the city accepts liability for the vehicle. Reno has no secure facility to keep vehicles. As a result the parking lot of the Reno Police Department is cluttered with all types of vehicle remnants where police cars should be parked. Mr. Batten commented the gaming industry in Reno has a special tax district to place more police officers on the street. It would be ideal to involve the gaming industry and have a public-private partnership to secure land or secure location to reduce the cost to county. Lt. Galeoto advised the taxing district downtown has not been approved by this legislature, so the process is still moving forward. Lt. Galeoto asked members to be real cautious of putting local government, particularly the police, in the car business. Lt. Galeoto suggested putting it under the control of the court in order to have choices available so police do not wind up in a full time car business. They applaud this effort and support the concept. Mrs. Monaghan asked if the car was seized, what is going to prevent them from going out and buying a $300 car. In drug forfeiture car seizures most of the cars were not worth a whole lot. Most people drive what they can afford. Mr. Schneider commented there are some people who can afford to replace their cars every month as long as they are working. It comes down to the responsibility of the forfeiture of driver's license. Mr. Schneider expressed doubt this bill will accomplish its intent. It is a certain segment of society arrested over and over with addiction problems. Under this bill there is nothing to stop the offender from driving. Presently, Lt. Galeoto stated the driver's license is suspended and agreed with Mr. Schneider. Dr. Harrington advised in approximately one-third of drunk driving accidents, the perpetrator is driving without a license. Dr. Harrington remarked the only way to stop them from driving is actually having physical control over them in prison. The other way is not letting them have access to a vehicle. Saving some people's lives is worth the effort. Mr. Schneider mentioned they cannot all be stopped and suggested having a card similar to a bank card for purchase of alcohol. When a green light flashes, you are approved to make a purchase. When a red light flashes, you cannot buy because of an addiction problem. Mr. Schneider stated all types of remedies can be done, but you cannot stop everyone. Dr. Harrington concurred all crime can never be stopped in all situations; but, you can prevent some. We have a moral obligation to try. Mr. Manendo asked Lt. Galeoto how many people stopped for DUI have already lost their driver's license. Lt. Galeoto did not have the figures; but, obviously it happens. Mr. Greg Harwell, Legislative Representative, Governmental Affairs, California State Automobile Association, testified against A.B. 509. Mr. Harwell applauded Dr. Harrington's efforts in dealing with drunk driving. It has always been a concern to the insurance industry and they supported an earlier package. Mr. Harwell expressed concerns with A.B. 509 in regard to the fairness issues, the cost to local government, lack of due process, and hardship on the family. It is almost as if this bill is directed towards punishing the vehicle and not punishing the driver. Mr. Harwell brought Ms. Kimberly A. Bennion, Manager and Legislative Counsel, Governmental Affairs, California State Automobile Association to the hearing. Ms. Bennion is familiar with, and has worked extensively on, the forfeiture and impoundment issues in California last session. Ms. Bennion advised their concerns are an offender should be convicted of a crime before one is deprived of property. They recommended a bill that would require forfeiture after conviction and not after initial arrest. In most cases a person's car is their most valuable or second most valuable asset. To lose it is a pretty substantial taking when not convicted of a crime. Their other concern is the community property interest. Statistics have shown that repeat DUI offenders, 85% of them are male. This could substantially impact women and their children. Many people testified in the state of California about their inability to get their kids to school and work should their car be taken away as a result of spouse's unauthorized behavior. They are very concerned about the foregoing issues and are willing to offer their expertise to the author and this committee and other members of Nevada legislature in crafting a bill that would allow for lawful forfeiture that would not have the impact on local government. Law enforcement was very enthusiastic about California's forfeiture and impound law. California is now considering extension to uninsured motorists in other instances. Local government and police officers are opposing these measures because they have impounded and forfeited so many vehicles and have no room for storage. They are unable to recover their costs. Chairman Anderson asked what the blood alcohol level was in California for first time DUI convictions. Ms. Bennion advised California law is based on forfeiting a person's vehicle if they are driving on a suspended or revoked license, or if they never had a license. The law states that if convicted once and arrested and convicted again, then your car will be subject to forfeiture. The reason it was tied to suspended or revoked licenses was because usually those licenses are suspended or revoked as a result of DUI or being a habitual traffic offender. California has a popular impound law. In the city of San Francisco 762 vehicles were forfeited in the first five months of the program; and only four cars were subject to forfeiture. It is a daunting process to forfeit a vehicle. The driver's license is lost for first time DUI conviction. Mr. Batten remarked San Francisco alone probably has near the population for the whole state of Nevada, so he did not believe in the first five months 700 vehicles would be impounded. In the more rural areas, Ms. Bennion advised of almost the same result. It was quite amazing. Mr. Batten asked what the result of the confiscation was; and, if the crime they were after caused the confiscation of the vehicle to decrease. Ms. Bennion replied the law just became effective in January of this year. They have not really been able to determine if they got the DUI drivers off the road. They certainly have hauled a lot of cars off the road. There is nothing in the law to prevent these people from replacing their car with $200 or $300 cars. Basically, in the end those junk cars are the ones subject to forfeiture. Ms. Bennion commented in the impound law once you have 30 days of impoundment, it is virtually a forfeiture anyway because storage charges can be anywhere from $20 - $50 per day. Most people just abandon their cars and go out and buy another one. In dealing with DUI and confiscation of vehicles, Mr. Batten asked Ms. Bennion where she would draw the line. Ms. Bennion responded they would prefer to see that someone be convicted of a crime before confiscation of vehicle, not simply arrested for a crime. Mr. Perkins questioned if in the state of California forfeiture action was tied directly to criminal prosecution. Ms. Bennion replied it was not. Mr. Perkins asked if she was suggesting in order for a forfeiture action to be accomplished that the burden of proof beyond a reasonable doubt in a criminal action be satisfied prior to forfeiture occurring or the simple preponderance of evidence. Ms. Bennion stated she thought it was just the civil action. In California it is the preponderance of evidence standard for the forfeiture. Because in the state of California, one has to be convicted at least once before they are in the forfeiture track later on. Another provision put into California law which was very helpful was there had to be some advertising that this law was going in to effect on a specified date to warn the public in advance they would be subject to this harsh penalty. California Automobile Association agreed to help in advertisement of the law. DMV put notices in license renewals to make the public aware. Mr. Perkins requested confirmation if she was saying to wait until the criminal action has run its course and then the civil action would begin. Ms. Bennion reiterated they would prefer to see a conviction first before confiscation of property. Due process issues should be reviewed by counsel to comply with the constitution. Mr. Perkins pointed out for the committee's benefit that the forfeiture provision in the bill is not any different than what is currently in our statutes and has already withstood the constitutional test. Mr. Perkins did not see any difficulty with the bill. SENATE BILL NO. 158 - Clarifies provisions relating to payment of certain fees, allowances and expenses to witness who is subpoenaed to appear in civil action. The Honorable Judge Ed Dannan, Reno Justice Court and State Judicial Council, testified in support of S.B. 158. The main focus of the bill is Section 6. It clarifies the provisions of state law as to what the obligation is of a witness once he appears in court to testify. Under existing law as it reads in subsection 6, a person is obligated to appear in a proceeding, but he is not obligated to testify. In some court situations, a person is subpoenaed, appears in court by taking time off from work, loses money, and is not paid either by the attorney or the party requiring his presence. It is the desire to amend this statute, rules of civil procedure and justice's court rules of civil procedure to make it more equitable for persons who are subpoenaed when they appear to be paid their entitlement under the law which is one day's witness fee and mileage. Chairman Anderson asked if this in no way imputes the ability or requires that the witness actually testifies and only that they actually be paid. Judge Dannan advised that nothing changes other than the fact that witnesses who now appear in court pursuant to subpoena as required and do not get paid, will get paid. ASSEMBLYMAN SANDOVAL MOVED TO DO PASS S.B. 158. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED. (ASSEMBLYMEN BATTEN, CARPENTER, HUMKE AND MANENDO WERE NOT PRESENT.) Chairman Anderson presented BDR 14-792 which revises provisions permitting attendance to support prosecuting witnesses at preliminary hearing and trial. ASSEMBLYMAN BUCKLEY MOVED FOR COMMITTEE INTRODUCTION OF BDR 14-792. ASSEMBLYMAN PERKINS SECONDED THE MOTION. THE MOTION CARRIED. (ASSEMBLYMEN BATTEN, CARPENTER, HUMKE AND MANENDO WERE NOT PRESENT.) There being no further business before the committee, the meeting adjourned at 9:20 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary May 4, 1995 Page