MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session June 8, 1995 The Committee on Judiciary was called to order at 8:10 a.m., on Thursday, June 8, 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 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Jacque Sneddon, Committee Secretary OTHERS PRESENT: Honorable Cliff Young, Justice, Nevada Supreme Court Cathy Fulda, Program Manager, BI Incorporated Jock Waldo, Sales Manager, BI Incorporated Steve Barth, Representative, Utah State House of Representatives Greg Harwell, California State Automobile Association Jack Barriage, Nevada Independent Insurance Agents Timothy C. Williams, Nevada Trial Lawyers Association Ben Graham, Nevada District Attorneys Association Susan Meuschke, Nevada Network Against Domestic Violence Carlos Concha, Nevada Parole and Probation Division Diane Loper, Nevada Women's Lobby Chairman Humke noted a quorum was present and began work session on Assembly Bill 565. ASSEMBLY BILL 565 - Revises provisions governing granting of probation of parole to person convicted of harassment, stalking or crime constituting domestic violence. Assemblyman Thomas Batten began the presentation about the electronic monitoring program to be used to monitor stalkers or persons convicted of domestic violence. He introduced Kathy Fulda, Program Manager, and Jock Waldo, Sales Manager, of BI Incorporated. Ms. Fulda discussed a new concept which BI Inc. has introduced to the market place regarding juris monitor for domestic violence cases. She described the equipment which plugs into the victim's telephone and power and the monitoring ankle bracelet which the court would order the stalker to wear. Ms. Fulda described the alarm functions of the device and explained an audible alarm would sound if the offender comes within 500-150 feet of the victim. The alarm would be noted by the monitoring center; a one-way voice channel would open; a recording of what is going on would be made; and 911 would be dispatched. She stressed she is not saying the device would protect the victim but would provide the victim with another level of security. Mr. Waldo added the use and acceptance of electronic monitoring is growing. He noted BI Incorporated has approximately 75,000 pieces of equipment in use worldwide. He also stressed the devices do not replace certain areas of law enforcement but augment and support them. He discussed the tamper proof aspects and alert given if the ankle unit is removed. He described the mobile monitoring unit which law enforcement could use to monitor the location of the offender. Mr. Anderson asked if the mobile unit could be used by someone who does not have a telephone system. Mr. Waldo responded yes as they have a unit with a cellular back-up which is like a regular phone unit once it is in place but it is not a mobile type unit to be carried with the victim. He added it may be more expensive. Mr. Anderson inquired if a victim being harassed at a work place would need a second unit. Ms. Fulda answered there can be two boxes, one at home and one at work, or the one box can be portable. Mr. Anderson wondered if there would be a problem if more than one person at a work site was using the same system and also would there be a problem with use of a work phone line. Ms. Fulda verified the unit does need a dedicated phone line. In her experience there had been no victim who took a unit to work. Ms. Ohrenschall asked what the power source was for the ankle bracelet. Mr. Waldo answered the unit has an internal battery which transmits a signal to the monitoring equipment. Mr. Sandoval inquired as to the initial set-up cost and ongoing monthly cost. Ms. Fulda responded the initial set-up is $8.00 per day. If they [BI, Inc.] provide the installation it would be $12.00 per day. Mr. Sandoval commented according to the bill the defendant will be paying for the cost if they can afford it. He wanted to clarify all the equipment would be included for the daily charge. Ms. Fulda responded "that's correct." Mr. Waldo wished to add with many electronic monitoring programs most of the costs range between $4.00 to $7.00 per day. This program has more equipment so the cost is a little more. Mr. Sandoval wanted to know who picks up the difference if the person can not afford it and if it is being picked-up by the states. Mr. Waldo responded in most cases, yes. Some areas use a sliding scale based on ability to pay. Ms. Ohrenschall wished to return to the topic of the battery in the ankle unit. She asked how long it lasts and is there a possibility the battery would fail. Mr. Waldo answered the battery is guaranteed for 365 days of use and has a shelf life of five years. He continued most important is a low battery detector; within 7- 10 days before failure it will send out a unique signal to the monitoring device. Ms. Monaghan asked if there was anywhere else, other than within the restricted range, the offender could not go when wearing the ankle bracelet. Mr. Waldo acknowledged it was a difficult question. The parameters of the program would set the restrictions for the offender. The wearer can continue to live their life in a fairly normal fashion as long as they are wearing the bracelet to insure they are participating in the program and not coming into range of the victim. Ms. Fulda added it would be compliance monitoring. Ms. Monaghan asked if the unit was waterproof. Ms. Fulda responded, yes. Mr. Waldo interjected they are waterproof, shock proof, and people swim with them. Ms. Monaghan asked if the unit would restrict any other activity. Mr. Waldo stated "absolutely not." Ms. Steel wondered if this was permissive. Assemblyman Batten addressed the question. He stated it is the judge who makes the determination based on the record of the offender. Ms. Steel asked if a person could fly with the device; walk through the metal detector without alarm going off. Ms. Fulda answered, yes. Ms. Ohrenschall wondered if there is any common household appliance which could block the signal. Mr. Waldo answered rarely. The transmitter continues to be refined. He discussed how the signal is sent and received and the signal can not be masked in today's technology versus five years ago. Ms. Ohrenschall asked if some of the devices being sold to protect the privacy of cellular phones effects this device. Mr. Waldo stated, "no." Chairman Humke asked if it would be necessary to provide several of these devices to the victim, in the temporary protective order situation, and what does that do to the cost. Ms. Fulda replied, up to this point, only one unit had been provided to the victim; there has been no request to provide additional units. Mr. Waldo described the general set-up of the equipment between the victim and offender. Chairman Humke wanted to assure his understanding of the pricing. He reviewed the basic unit is $8.00 per day and asked if it was for the perpetrator or the victim. Ms. Fulda stated total. Mr. Waldo stated everything; all equipment. Chairman Humke asked what was the $12.00 cost. Mr. Waldo responded the $12.00 fee was if they [BI, Inc.] were to provide the installation. He continued in some areas agency staff install the equipment. Chairman Humke commented in Nevada it is quite common to protect the victim's place of employment, children's school, and day care. He asked was correct that BI only had calls for protection of the victim's residence in other areas. Ms. Fulda responded it was correct. Assemblyman Batten introduced Steve Barth, Representative, Utah House of Representatives, to discuss the similar bill he sponsored and was passed in Utah. Mr. Batten noted Utah was the only state to have legislation with this device and submitted a packet (Exhibit C.) Steve Barth first addressed the issue of "pay." He stated to deal with the matter of a fiscal note they have privatized the program; however their Adult Probation and Parole has overall jurisdiction. He explained the perpetrator is tried and the court orders the person into the program within 24 hours. The payment goes through the private company [BI] which handles collections and set-up charges. The state oversees the program but has no hands-on for money collection. Costs in Utah are $12.50 a day. The amount above the $8.00 goes into a fund to pay for indigents unable to pay for the program. The set-up fee is $50.00. He testified, so far, it has worked really well. He added this program is not a cure-all but is an everyday deterrent due to it being constant reminder to the perpetrator to change their behavior. He discussed the attributes of the program for the victim, the assist it gives to protective orders, and how it reduces the impact on prison systems. Mr. Sandoval asked if their fund was keeping up with the expense. Mr. Barth stated, "it is." Mr. Sandoval asked how many participants were in the program. Mr. Barth answered it has changed to a point he was unable to tell him. The bill was effective May 1 [1995]. He continued there had been no instances of domestic violence when the person is wearing the ankle bracelet. He described one situation of a women [victim] not wishing to participate, though the court ordered it for the perpetrator, and subsequently being beaten by the perpetrator. She then requested the unit but now the perpetrator can not be located. He stressed victim education is very important in the program. Chairman Humke inquired if there were problems with nonresponse to the alarms, as can happen with burglar alarm calls, because of false alarms or charges for those responses and how can the situation be avoided. Mr. Barth stated Kathy [Fulda] has the answer. They had the same question in Utah. So far there have been no false alarms. Ms. Fulda responded education is the number one concern. False alarms have been much reduced. Chairman Humke asked how many states have [BI's] this technology. Ms. Fulda answered they are in ten states. Mr. Sandoval inquired in what situations, other than domestic violence, is the equipment used. Ms. Fulda replied there was a pre-trial application in a civil case; the system is mainly setup for the protective orders. Assemblyman Batten reviewed the bill and its intent. He noted law enforcement had a concern about being required to install and monitor the devices; however, it will be privatized. The bill references to law enforcement need to be amended; whoever installs the devices will work in conjunction with Parole and Probation. This will eliminate the fiscal note. He discussed misdemeanor offenses, not normally monitored by Parole and Probation, would also be privatized so their caseload would not increase. He continued "more teeth" have been added to the protection order to include, "any location specifically named by the court which is regularly frequented by the victim." Also added is prohibiting indirect contact with the victim, such as, the offender contacts the victim through a third party. The bill also allows the magistrate, under certain circumstances, to have the device placed on the suspect until the court date commences. He stressed there is flexibility for the judge. He addressed a concern in Section 3 regarding the confiscating of firearms if the offender is arrested, convicted, and is considered a threat by the judge. He stated an amendment (language pending) to be added is the court will charge an administrative fee for the storage of the confiscated firearms. Chairman Humke, referencing Page 4 regarding the surrender of the firearm, asked what was the underlying offense. Assemblyman Batten responded the conviction of domestic violence. Chairman Humke wanted to clarify the firearms would be surrendered and under the new legislation would be melted down. Assemblyman Batten answered, "no." He stated he was not happy with how the bill reads; it is necessary to read through the entire bill to "get the flavor" of the bill. He explained once an offender is convicted of domestic violence the court will order the firearms to be surrendered to the police department which will then store them. After the offender satisfactorily completes the court assigned program the judge will make a determination, whether or not, to return the firearms. If the firearms are not returned they will be disposed of according to NRS 202.340. Chairman Humke commented he considers it a problem when a citizen's weapon is confiscated. It must be based on some offense. He referenced a bill recently heard where the reason was based on impairment - drunkenness - which tied to the immediate physical possession of the weapon. He was not sure this bill has that type of logic to pass his muster. Assemblyman Batten responded Susan Meuschke, who would be testifying later, could provide statistics regarding the parallel between the use of firearms in domestic violence compared with other weapons. He is willing to work with the committee but wants to insure if an individual is violent the opportunity to further carry out his threat is removed. He noted Judges Gaston and Merrin (Clark County) reviewed the bill and were in complete agreement with the bill and had no problem with a defendant surrendering their firearms. Steve Barth testified there was the same discussion in Utah in a companion bill to his. The bill was passed with the confiscation because the judge has the discretion. Assemblyman Batten added judges in the United States responding to a study on domestic violence by the National Council of Juvenile and Family Court Judges recommended the seizure of weapons involved or threatened to be used in the commission of the crime of spousal battery. He noted the study found the risk for lethal recidivism rate was highest for victims in the context of domestic or family violence. Chairman Humke interjected, "Mr. Batten, I give." He had thought the issue was regarding temporary protective orders; but after re-reviewing the bill found the area is within the battery section, upon a conviction. He does not have as much problem with confiscation of the defendant's weapons after a conviction. He is not finally comfortable with it but understands it better now. Assemblyman Batten continued to review the bill in general terms about parole requirements and agreements the offender must abide by. Mr. Sandoval asked what the standard length of parole is while wearing the device. Assemblyman Batten responded he did not know the standard time. He explained there has not been a program like this in the state and Utah's program is too new to have the numbers. Mr. Barth added it would be for as long as the judge orders. In Utah people have been on for six months; it is for the "length of the need." Mr. Ben Graham, Nevada District Attorney's Association, applauded the effort to work out a system to keep track of the offenders. He stated it [the bill] has merit and saw no problem except maybe logistics. He added the confiscation of weapons is another issue which he is not prepared to address. He described a recent case of a wife shooting her husband. Mr. Carpenter commented perhaps the guns should be taken from the other party also. Mr. Graham restated he did not wish to get into matters of the Second Amendment. Mrs. Monaghan asked can someone afford $360.00 per month. Mr. Graham was not sure, but, the case in Las Vegas was ultimately going to cost $65,000 and if the wife had put out $4-5,000 the situation may not have occurred. Mrs. Monaghan felt the answer did not address her concern. She wanted to know if the offenders, overall, could afford the program. Mr. Graham was not sure of that; however, his experience is the offender does have a job so it might be within their reach. Ms. Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence, read her testimony into the record (Exhibit D) in favor of A.B. 565. She also submitted for the record a letter of support from Joni Kaiser, Executive Director, Committee to Aid Abused Women (Exhibit E.) She stated she would be happy to provide information regarding the use of firearms in domestic violence as mentioned by Mr. Batten. She stressed the bill speaks to the cause and scope of domestic violence and urged the Committee's support of the bill. Chairman Humke requested Ms. Meuschke provide the aforementioned information. Mr. Carlos Concha, Division of Parole and Probation (P&P), (in response to Mr. Sandoval's question), testified the average time for an offender on house arrest is 90 days. They do have offenders under house arrest for up to three years. He addressed the issue of confiscating weapons explaining P&P would remove the weapons from the home and hold them or ask they be given to someone outside of the residence until the completion of the probationary term of misdemeanor offenders. If the offense is a felony the weapons would not be returned; the offender could sell them or the Division would go through the process of disposing of them. He informed the Committee the Division does not supervise any misdemeanor offender; only gross misdemeanor and felony. If the program to supervise the misdemeanor were to be privatized then P&P would not want to approve the equipment used. The private company should be involved directly with the court, not through P&P. He continued P&P contracts for the equipment and are using all but the victim identifier. Mr. Sandoval thinks the system is foolproof as far as the monitoring goes but would like to see the completion of counseling as a requirement of the program. He fears an offender could abide by the restrictions of the program and at its end act on rage which may have built up. Mr. Concha replied it would be up to the court to recommend counseling as a special condition. Mr. Sandoval clarified he was not talking about substance abuse counseling but something like anger management and would discuss it with Mr. Batten. Mr. Concha commented the court has the authority to impose any special condition they see fit. When any condition is ordered P&P will follow to see the orders are carried-out. He described the difficulties encountered when some district courts used a private company in past years and due to their experience now implement their own house arrest program. Mr. Carpenter asked if P&P does the actual monitoring. Mr. Concha answered yes. Mr. Carpenter asked if they lease or buy the equipment. Mr. Concha replied the equipment is leased and the offender is required to pay a certain amount for it. He described some applications of the equipment in their program. Mr. Carpenter asked what amount does the offender pay. Mr. Concha responded the cost for the ankle bracelet and a breathalyzer is $7.00 per day. Mr. Carpenter asked if the cost covers any of the monitoring. Mr. Concha answered the cost covers the equipment lease paid to the company; the personnel is out of the Division's funding. Mr. Carpenter asked if it was better to lease rather than purchasing the equipment. Mr. Concha responded they found it better to lease; the cost to purchase is quite high and the technology continues to improve. They recently were able to update the equipment. Mr. Carpenter wanted to clarify the program which was not successful was the one conducted by the private company which P&P was monitoring. Mr. Concha responded the problem was the communication with the company; if an offender was in violation the company would contact P&P for them to process the paperwork to bring the offender back to court. There was a time problem and the communication was cumbersome. He stated with using their own equipment they could jump on a problem immediately. Mrs. Monaghan asked if there are a lot of people who can not go on the program because they must pay for it themselves or is there no problem. Mr. Concha answered there are a number of offenders who can not pay but it does not effect their participation since they are subsidized by the state. He added they have a collection rate of 50-60%. Lt. Phil Galeoto, Reno Police Department, testified they support the bill and believe any tool to allow law enforcement to interdict the actions of a violent individual is a quality addition. Ms. Diane Loper, Nevada Women's Lobby, stated it is an extremely important bill and hopes it could be extended to misdemeanors where most of the spousal batteries occur. She explained Reno Municipal Court has a co-active program. Chairman Humke commented Ms. Loper had brought forward an important point and stated there is a bill which would authorize misdemeanor probation at the local level. He noted it was not a simple bill; in his opinion it is the type of program which only works under court supervision. Ms. Loper agreed, to an extent, but stated their [Washoe County] judges were doing a lot of the work themselves and would love to have help. The courts' bailiffs are supervising the cases. She discussed the program in the court. Mr. Barth explained the new philosophy in Utah is the person who committed the crime is paying for their own punishment and the program is in lieu of jail time so they are still able to work and derive income; it costs the offender but they are "still out there in the world." Chairman Humke closed the hearing on A.B. 565 and opened the hearing on Senate Bill 374. SENATE BILL 374 - Revises circumstances aggravating first degree murder. Justice Cliff Young, Nevada Supreme Court, was appearing in support of S.B. 374. He testified the bill will save a substantial amount of money. He explained before the death penalty can be imposed there must be a finding of at least one aggravating circumstance which is not outweighed by the mitigating circumstance. The language, "the depravity of mind" creates an ambiguity. The United States Supreme Court has considered an ambiguity problem, under Georgia statutes, and found it indefinite. Nevada statute language has the same weakness. The use of this as an aggravator by the District Attorneys has created problems for the Supreme Court and the federal courts. The statute has been construed [to overcome the weakness] to be if there was depravity of mind there must be torture or mutilation. This brings the question of why "depravity of mind" is included. Chairman Humke noted there were no questions, closed the hearing on S.B. 374 and entertained a motion. ASSEMBLYMAN ANDERSON MOVED TO DO PASS SENATE BILL 374. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN BATTEN, MONAGHAN, AND SCHNEIDER WERE NOT PRESENT. Chairman Humke opened the hearing on Assembly Bill 576. ASSEMBLY BILL 576 - Revises provisions governing policy limits of certain policies of insurance. Mr. Timothy Williams, Attorney from Southern Nevada, explained he has represented both consumers and insurance companies. The bill would require insurance companies to offer the same limits to the named insured and others occupying the vehicle. He stated the reasonable expectations of the consumer are not necessarily met due to exclusions or fine print in the auto insurance policy. He described the coverage of the named insured versus that of the occupants of the vehicle and the exclusion of some persons; i.e., an at fault driver's family members may not receive the same type of coverage in an accident as an unrelated third party when passengers in the vehicle (the household exclusion exception.) He continued to give other examples. The bill sets the limits of coverage for the persons named under the policy and occupants of the vehicle. Mr. Anderson asked if he and his family were involved in a single car accident how would his wife be covered. Mr. Williams explained his wife would not be able to collect the entire amount of liability of the policy where a third party could. The third party would have full "recoverage" benefits up to the policy limits. The wife, if there is an exclusion, would not be able to recover the benefits. He stated the consumers think they have full coverage but do not understand there may be limits. Mr. Sandoval asked if part of the policy of excluding household members was to keep them from suing each other on a liability standpoint. Mr. Williams did not think there was a limitation in Nevada to keep household members from suing each other. He thought it was to restrict coverages for the members of the household. He restated most insured do not read their policy until it is time to make a claim and then they realize they do not have the coverage they anticipated. Mr. Greg Harwell, California State Automobile Association, testified in opposition of the bill. He stated it does not accomplish the things the trial lawyers reported it would and creates many problems. He understood the bill affected only the uninsured motorist portion of the policies and not the liability sections -- so the reduction of limits do not come into play. The concerns are the ability for insurers to limit coverage for named drivers when they are taking a specific exclusion, such as, for a bad driver in the household. He noted the premium is reduced when a driver is excluded. If the option to exclude a poor risk driver from full coverage (minimum coverage is given) was not available the only action would be to cancel/not renew the entire policy. The bill may also void any exclusions within the policy for vehicles owned by an insured but not listed on the policy and for which no premiums are being paid. He noted policy limitations for total liability of all passengers [in a single accident] could be extended to mean the limit for each individual. He cited cases which upheld the reduction of limits: Zobrist v. Farmers Insurance Exchange, 103 Nev. 104, 734 P.2d 699 (1987); Farmers Insurance Exchange v. Young, 108 Nev. 328, 382 P.2d 376 (1992); and Federate American Insurance v. Granillo, 108 Nev. 560, 835 P.2d 803 (1992.) Mr. Anderson inquired if he rented a car his insurance would cover him. Mr. Harwell answered, yes. Mr. Anderson continued if it was correct if one of his daughters, because of driving problems, could be cancelled from the policy. Mr. Harwell replied yes and added there would be an option offered to allow him to exclude her or cancel. In exchange for the exclusion the premium would be reduced. Mr. Anderson expanded his question and asked now that his daughter is excluded would she be treated differently than his wife if she was in the family car in an accident. Mr. Harwell answered she would be treated in the same fashion as his wife because she is a member of the household. Mr. Anderson asked if he had a hitchhiker in the car at the time would he be able to get maximum amount from the insurance policy. Mr. Harwell replied correct; the full policy amount would be available. The family exclusion is designed to address the problem of fraud and collusion issues. Discussion ensued about rate system versus vehicle type, particularly multi- passenger vehicles where the aggregate claim amount could be $300,000 for all passengers injured. Mr. Jack Barriage, Executive Vice President, Nevada Independent Insurance Agents, stated his organization's members are not insurance company employees, and they are finding it more and more difficult to find markets. His group is opposed to the bill. He continued if the bill passed it would reduce the number of auto carriers in Nevada, probably increase rates, and increase the number of uninsured drivers. Mr. Charles Knaus, Property Casualty Actuary, Insurance Commissioner, noted the Commission is neutral on the bill. He wished to address Mr. Anderson's questions. The liability and uninsured motorist premiums do not generally vary by the type of vehicle; the premium would vary for the comprehensive and collision coverage. He agreed part of the reason to limit benefits to family members is to prevent collusion. He felt the language in the bill is vague as he did not read the bill as potentially applying to liability insurance. If the bill is to be passed the language needs to be worked. He continued the bill would have a significant effect on rates and availability of insurance. Mrs. Monaghan wanted to clarify there would be no difference in medical but there would be a difference in pain and suffering. Mr. Knaus explained coverage under the bodily injury liability coverage could vary but the medical payments coverage would be equal. Chairman Humke closed the hearing on A.B. 576. There being no further business Chairman Humke adjourned the meeting at 10:04 a.m. RESPECTFULLY SUBMITTED: Jacque Sneddon, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary June 8, 1995 Page