MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session April 13, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:50 a.m., on Thursday, April 13, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O. C. Lee STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Judy Jacobs, Committee Secretary OTHERS PRESENT: James Wray, Attorney Ben Graham, Lobbyist, Nevada District Attorneys Association James J. Jackson, State Public Defender, Office of the State Public Defender Tim O'Toole, Deputy Public Defender, Office of the State Public Defender Major Dan Hammack, Nevada Highway Patrol Senator James stated the issue regarding attempts to commit a felony in the proposed truth-in-sentencing crime bill discussed on the previous day had not been voted upon. He said he and Senator Adler discussed the matter and determined there should be one more change in the way attempts are sentenced. He said: The way we voted yesterday is that an attempt to commit a category A felony, which is all the ones that have potential life-imprisonment terms, would be a category B felony, and the term would be 2 to 20 [years]. That's attempted murder, attempted first degree [murder]... So that's the range... Attempt to commit a ... B crime that has a maximum sentence that exceeds 10 years would be a category B and the sentence would be 1 to 10 [years]. Attempt to commit a B crime ... with a maximum sentence less than 10 years would be a category C crime of 1 to 5 [years]. Attempt to commit a C would be ... punished as a D. Attempt to commit a D ... would be punished as an E. Attempt to commit an E would be ... punished as an E. Senator James indicated Senator Adler has been concerned that there should be an option to impose punishment as gross misdemeanors at the lower levels on an attempt to commit a C crime, an attempt to commit a D crime, and an attempt to commit an E crime. He pointed out that will resolve both the fiscal concern and the concern that there may not be enough distinction between the attempt and the actual, completed offense. Senator McGinness inquired if the option will be at the discretion of the judge. Senator James confirmed it will be. Senator Washington asked if the judge will base the sentencing on a prior felony record. Senator Adler responded that the district attorney will charge the felon with a gross misdemeanor rather than with a felony if the crime is an attempt. He acknowledged he is unsure whether the judge will have the option to sentence as either a felony or a misdemeanor, but he offered the opinion the sentence will depend upon the charge. Senator James pointed out public defenders and others will have an opportunity to testify on the measure later when the bill is drafted. He asked the committee to vote upon the change. SENATOR ADLER MOVED TO ACCEPT THE CHANGE TO THE PROPOSED ATTEMPT TO COMMIT STATUTE AS INDICATED. SENATOR PORTER SECONDED THE MOTION. Senator James told Senator Titus there was a motion proposed to make one change to the attempt statute which addresses Senator Adler's concerns of the previous day. He said, "This would give, at the C and D and E level, the option to prosecute those as a gross misdemeanor and it would widen out the discretion." THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James reported he was asked for a bill draft request (BDR) proposed by a municipal court judge to allow a city to increase the terms of municipal court judges to 6 years. He read: The city council may, from time to time, establish additional departments in municipal court. If a vacancy occurs, the city council shall appoint a judge to fill out the balance of the vacating judge's term. The term of office for municipal court judges may be 6 years. Senator James stated he would like to have the proposal drafted because there are several municipal court judges and others in favor of the option. SENATOR LEE MOVED FOR THE COMMITTEE TO SPONSOR A BILL DRAFT REQUEST AS PROPOSED. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James invited the proponent of another bill draft request to come forward. James Wray, Attorney, reported the Nevada Supreme Court modified the Nevada Rules of Civil Procedure (NRCP) 4(e) 1. He requested that a corresponding change be made to the Nevada Revised Statutes (NRS) 128.070 and other sections that deal with service by publication of summons in civil actions. He provided the committee with information (Exhibit C. Original is on file in the Research Library.) on his proposal. Mr. Wray called attention to the change made by the Supreme Court on the fourth page of Exhibit C. He pointed out the change will require that such publication be made in a newspaper published in the State of Nevada. He said before the change there was no language specifying publication within the state, but he felt that when the language that became NRCP 4 (e) was included in NRS it was probably the legislative intent that publication should be within the state. Mr. Wray explained it is more convenient for all parties to have publication within the state and it keeps the business in the state. He pointed out all five Supreme Court Justices signed the order, indicating no disagreement. He asserted publication within the state simplifies due process. Mr. Wray pointed out, "When you do serve someone by publication, reality is that they probably don't get notice unless they're hiding out and perhaps looking for it." He stated publication within the state is needed to help matters reach a conclusion. Senator James asked if it is implicit that those publications are supposed to be made in-state publications. Mr. Wray affirmed the query and proposed it be made explicit. He said problems have arisen when publication has been done outside the state. Mr. Wray explained a judge from the Eighth Judicial Court has started ordering that publication be made out-of-state. He said some states have "strange" statutes with different publication requirements, in which case the publication requirements of both states have to be met. Senator James inquired what should be done if there is knowledge the affected individual resides in another state, but for whom no mail service is possible. Mr. Wray responded that in the case of NRCP 128.070, which deals with termination of parental rights, there is a provision that the court may, if it wishes, go beyond normal attempts to locate a person. Mr. Wray said a person living in an area such as Los Angeles probably will not get notice anyway, because few people read the notices unless they are expecting them. He said the majority of the states require that such notice be published within the state, and 25 of the states require that publication be made in the county in which the motion is filed. Senator James agreed it would be appropriate for the Legislature to hear such a bill since the Supreme Court has amended their rules. He asked if the change should be made in every place in the NRS that requires publication, or if the change should be made in just the one statute. Mr. Wray responded the change should be made in every place in the statutes with a requirement for publication. He suggested the Legislative Counsel Bureau Legal Division search the statutes to bring them all into agreement when they formulate the bill draft. Mr. Wray noted there is an existing statute, NRS 14.040, that already provides that publication shall be done according to NRCP. He opined that might be the best way to revise the statutes in case the Supreme Court makes another change in the method regarding publication procedures. Senator James offered to seek a BDR, but he warned there may not be time for a hearing on the measure because the committee will not be accepting any more bill drafts after the end of the week. He explained the committee wants all BDRs in for introduction by May 1 and the bill drafters may or may not be able to draft the measure within that time frame. Mr. Wray offered the opinion the legislation should be drafted readily and if it succeeds it may prevent 2 years of "squabbling." SENATOR McGINNESS MOVED TO SPONSOR A BILL DRAFT REQUEST AS PROPOSED. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James announced he was asked to hold Senate Bill 130 for an additional length of time. SENATE BILL 130: Limits civil liability of providers of health care who volunteer their services for certain organizations. He stated his intention is to kill the bill because it is already covered in the statutes. He explained the bill attempts to give immunity to doctors who volunteer to charitable organizations unless they engage in gross negligence. He said there is already a statute that covers everyone, including doctors, who volunteer their time to charitable organizations unless their actions are willful or wanton. Senator James opened the work session on S.B. 227. He reminded the committee the bill will make it a felony to pass a bad check for purchase of a firearm. SENATE BILL 227: Provides that issuance of check or draft without sufficient money, property or credit to obtain firearm or deadly weapon is felony. Senator James recalled concern during previous testimony that passing a bad check to purchase a firearm, regardless of its value, is more of a commercial issue than a crime issue. He said he had informed the person who requested the measure of his intention to indefinitely postpone the bill. SENATOR LEE MOVED TO INDEFINITELY POSTPONE S.B. 227. SENATOR TITUS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James stated the next bill refers to the insanity defense which was heard at length earlier. SENATE BILL 314: Abolishes criminal defense of insanity. Senator James cited changes to be made. The first, he said, is the addition of a plea of guilty and mentally ill. He explained the effect of the addition will be to require that evidence of mental illness at the time the offense was committed be considered if it is offered by the judge when the judge is sentencing an offender convicted under a verdict of guilty, but mentally ill. He noted the judge will be given the option to authorize treatment during incarceration. He pointed out the same sentence will be imposed under a verdict of guilty, but mentally ill as it will be if the verdict is just guilty, and that will do away with the idea that there is no criminal responsibility for the guilty, but mentally ill. The offender will continue to have criminal responsibility and the same penalty, but he may receive treatment. Senator James said the second proposed change will clarify that evidence of mental illness is admissible to prove the defendant did or did not have the state of mind that is an element of the defense. He explained if specific intent is necessary and, as an example, it could be proven the person was unable to understand he was killing a person because he thought it was an animal, there would be no specific intent to kill a human being and the charge could be defeated. He read a portion of the Montana code which he indicated is similar to the proposed addition to S.B. 314. Senator Adler reported Nevada has shied away from giving the judge the authorization to provide treatment. He explained, "You may create a liberty interest for the inmate in mental health treatment, which then the Department of Prisons can be sued for if they don't provide the type of treatment authorized by the judge." Senator Adler suggested allowing the judge to remand the person to the director of the Department of Prisons (DOP) for an evaluation as to further mental health treatment. He reiterated once the judge authorizes treatment, if the DOP offers a treatment different than that authorized by the judge, or one perceived to be different, there is a chance the issue will end up in federal court. Ben Graham, Lobbyist, Nevada District Attorneys Association, endorsed the suggestion to allow the judge the option to authorize treatment. He also agreed with Senator Adler's suggestion regarding the wording as to whom would authorize treatment. He agreed following either the Idaho or Montana provisions would serve the needs of Nevada. The committee debated appropriate wording regarding authorization of mental evaluation and treatment. Senator Adler said: The judge always remands him to the director of the Department of Prisons. Say, remand to the Department of Prisons and request that the director, through his staff or whatever, perform an appropriate mental health evaluation. Senator Adler pointed out the present wording of the proposed statute could result in having the offender sent to Lake's Crossing Center for the Mentally Disordered Offender, which he felt would be inappropriate. Mr. Graham wondered if it would be advisable to add wording to allow treatment as deemed advisable by the director. Senator Adler reiterated the problem may arise if the judge authorizes treatment. They agreed the evaluation should be authorized while treatment could be left to the discretion of the DOP director. Senator James interjected the Idaho statute offers treatment if it is available. He proposed the court request a mental examination and the treatment be done to the extent that it is available for such mental illness or defect. James J. Jackson, State Public Defender, Office of the State Public Defender, concurred with the proposed language. He said, "Language of that type would ... give ... an out if the resources are not there for the department to provide them." He agreed with Senator Adler that there is the possibility it could be used adversely if there is a specific authorization by a district court judge, but with no discretion or ability for the department to provide the treatment. Senator Adler noted there is a Supreme Court case that says once a person is adjudicated a felon, the court cannot order that he be recommitted to a mental health facility because it would "stigmatize" the felon as being mentally ill. Mr. Jackson recalled during an earlier discussion of State of Montana v. Correll (citation omitted) it was established it would clearly be unconstitutional to impose an absolute prohibition of the ability of the defendant to bring in expert testimony and evidence regarding his mental state and how it might affect his culpability or intent. He surmised it was recognized by the Montana Supreme Court. He added when the case was denied a hearing some people felt it gave tacit approval to the repealing of insanity statutes. Mr. Jackson reported each year nearly 8,000 requests are filed with the United States Supreme Court for certiorari, although only 100 are granted. He said: So the fact that a case is denied certiorari review by the United States Supreme Court is hardly what I would suggest authority that they have somehow endorsed the ruling in a case. Many times our United States Supreme Court will simply let an issue develop ... until enough cases have been considered in the lower courts that the work has been done ... and they can simply go and look at that body of law, that body of review, and decide what the United States' standard should be. Mr. Jackson declared his belief the issue will continue to be revisited not only by Nevada courts, but also by courts throughout the country. He opined someday the United States Supreme Court will accept certiorari and decide if there is a constitutional right to present an insanity defense. Senator James opined the Montana case relied upon Powell v. Texas (citation omitted) in which it was determined that the act of drunkenness could be punished even though the person was not being punished for being an alcoholic. He surmised the Montana court felt that was an indication from the United States Supreme Court that the states should deal with such issues. Senator James stated S.B. 314 will not take away the right to bring in evidence of mental illness, but it will repeal the common law M'Naughten rule. Mr. Jackson agreed. He indicated the evidentiary line will be thin and difficult, because it goes to the ability of the offender to understand the nature and quality of his act and what affects the ability to form intent. He declared, "The insanity defense never works anyway, so maybe we're not making any kind of step backwards, and in fact we're taking a step forward in realizing the true utility of that type of evidence and where it really ought to go to." Mr. Jackson asserted that the intention is to draft law as good as possible and to give the perspective to whatever might happen. He declared the Powell v. Texas case said states have the right to establish what kinds of defenses they want to prosecute. He explained the problem revolves around the entire idea as to whether a person who is mentally insane can be punished for something that has not risen to the level of consideration by the United States Supreme Court. Senator Porter recalled a discussion in which it was noted the plea of insanity is often used to slow the process or on which to base an appeal. He asserted filing pleas are costly, especially if 8,000 are filed with the United States Supreme Court each year. Mr. Jackson clarified there are 8,000 total certiorari cases filed each year, not 8,000 using the plea of insanity. He explained the cases filed range from civil rights to criminal matters. Tim O'Toole, Deputy Public Defender, Office of the State Public Defender, interjected there are 100 total pending cases of certiorari filed in the State of Nevada. He acknowledged he does not know if any are regarding insanity. Senator Porter reiterated it appears the insanity plea is used when it should not be used. Mr. Jackson stated his office does not use the plea improperly and he does not know of a case in which the plea has been used for purposes of delay. He asserted it is unethical for an attorney to bring a defense of insanity for which there is no credible evidence or anything to support it, and if it is wrongly used, the attorney should be subject to sanctions. Mr. O'Toole added the insanity defense, as it currently exists, is fairly well established. He said S.B. 314 will allow the same evidence, but it will create more legal issues and may result in more litigation in the beginning as to what the law actually is. He said the M'Naughten rule, which has been used for nearly 200 years, is fairly settled and there are very few, it any, cases involving insanity issues. He surmised there will not be much change in the types of evidence presented as a result of S.B. 314, but there may be new legal challenges. Senator James suggested there will be evidence of the mental state of the offender, but the question will be whether the offender could form the intent necessary for the crime. He stated there will not be evidence to say the offender did not understand the difference between right and wrong. He said, "The defense that ... the devil made me do it ... isn't going to work under ... the law after we repeal M'Naughten. It's only going to work if you can show that somehow it defeats whatever this specific or general intent necessary for the crime was." Mr. O'Toole insisted much of the same evidence will come in, and since the law will be different it will create new legal issues. He declared: The Montana case [says] this type of statute ... is constitutional, but it also raises in that opinion a number of different legal issues that might come up with respect to the statute which right now are unclear because not a lot of states have done this, whereas the M'Naughten law is a very clear rule because it has been established for hundreds of years. Mr. O'Toole stated he has no position on the bill, but he believes it will raise new legal issues because it has not been tested. Senator James acknowledged the importance of the comments made by Mr. O'Toole. The senator said he sees nothing in them that would indicate substantive changes to be made to the proposed amendments and he would like to move the bill. He stated, "I think it's important for this committee to pass this bill and for the Legislature to pass this bill because it is important to bring this aspect of the criminal justice system in line with notions of personal responsibility that should imbue the system." SENATOR TITUS MOVED TO AMEND AND DO PASS S.B. 314 AS PROPOSED. SENATOR ADLER SECONDED THE MOTION. Senator Adler pondered whether the amendment would clarify the language as to commitment. He said he wanted the language structured so that if the offender is found guilty and mentally ill the offender will be remanded to the Department of Prisons and not to Lake's Crossing Center for the Mentally Disordered Offender. He noted the DOP has a psychiatric unit. Senator James said he would have the committee review the amendment once it is drafted by the legal staff. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James announced the next bill for consideration as S.B. 327 in which testimony had been heard from Senator Dean A. Rhoads and others to ensure limitation of liability for owners and occupants for injuries to persons who enter on their premises where private land is used for recreational purposes. SENATE BILL 327: Clarifies limitation of liability of owner, lessee or occupant of premises who allows persons to enter or use premises for recreational purpose. SENATOR PORTER MOVED TO DO PASS S.B. 327. SENATOR McGINNESS SECONDED THE MOTION. Senator James reported there is a similar bill being heard in the Assembly. Senator Adler expressed the opinion the bill will make no changes in the law and that it is defeated by the recreational use doctrine. He said he knows of cases that have gone to the Nevada Supreme Court and the court has said the law prohibits suing. Senator James agreed except for the phrase on lines 14 and 15 of the second page reading "but is not limited to:" which adds a new dimension. Senator Adler insisted the bill will make no change. Allison Combs, Senior Research Analyst, said the other bill under consideration is Assembly Bill (A.B.) 313, which includes a longer list of recreational activities, but otherwise is basically the same. She said A.B. 313 will create a fourth exception to liability for people who are expressly invited onto the property. ASSEMBLY BILL 313: Revises limitation on liability for injuries to persons who enter or use premises of another to cross over to public land or for recreational purposes. Ms. Combs said A.B. 313 is undergoing subcommittee consideration in the Assembly to ensure that those types of circumstances will be covered. Senator James repeated the motion to do pass S.B. 327 and called for the vote. THE MOTION CARRIED. (SENATOR ADLER ABSTAINED FROM THE VOTE.) * * * * * Senator James opened discussion on S.B. 335. SENATE BILL 335: Prohibits person from having actual physical possession of firearm while under influence of intoxicating liquor or controlled substance. Senator Adler stated he wished to propose some changes to the provisions of S.B. 335 after having held discussions with many different people. He suggested no matter how many times a person commits an offense under the statute the penalty should be a misdemeanor, the definition of intoxication should use the same blood alcohol content as that defined for driving under the influence of a controlled substance (DUI) and the same methods should be used to determine sobriety. He remarked gun owners have voiced agreement with the proposed terms of the measure. Senator Porter inquired if possession means "in hand." Senator Adler replied, "It means actual, physical possession ... on the person." He explained it will not apply if the gun is in the trunk of the vehicle or under the seat. He said a weapon in a holster on the person will constitute actual, physical possession. Senator Adler pointed out the judge will have the discretion to determine the seriousness of the offense. He opined adoption of the measure will make a difference in the law. He noted three out of five recent murders committed with a firearm in Lyon County were committed by people with a blood-alcohol content of .10 or greater, and three of those people did not have a prior criminal record. He surmised it was the combination of alcohol and the weapon which caused people who were not a danger to society when sober to became a danger when intoxicated. Senator Adler said S.B. 335 will allow a police officer to enter a bar and arrest an intoxicated person without a charge of brandishing. Mr. Graham reported the measure will provide a sound basis for a misdemeanor charge whereas in the past it has been difficult for police officers to confiscate weapons and make an arrest under such circumstances. SENATOR LEE MOVED TO AMEND AND DO PASS S.B. 335. SENATOR WASHINGTON SECONDED THE MOTION. Senator James described the amendment to include deletion of all penalty language and said it will provide that a violation of subsection 1 will be punishable as a misdemeanor regardless of the number of times an individual is convicted of the offense, will define intoxication as provided in the DUI statutes, and will provide testing for intoxicating or controlled substances be conducted in the same manner as under DUI statutes. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James announced he had a request to hold A.B. 92 until resolution of a problem or two. ASSEMBLY BILL 92: Requires revocation of driver's licenses of certain juveniles who drive under influence of intoxicating liquor or controlled substance. He opened discussion on A. B. 185. He explained the bill will allow a person who commits a traffic violation as a result of simple negligence that results in death to be prosecuted for involuntary manslaughter, whereas the present statutes require gross negligence be present for a charge of involuntary manslaughter. ASSEMBLY BILL 185: Includes within crime of involuntary manslaughter violation of certain laws resulting in another person's death. Senator James voiced his understanding a violation of NRS Chapters 484 or 706 presently allows prosecution for the misdemeanor of the traffic violation, but does not allow the judge to effectively consider that a death was caused in handing down his sentence. He said A.B. 185 will allow a charge of involuntary manslaughter without the necessity to prove a gross misdemeanor, the penalty will still be for the misdemeanor, but the judge will be able to take the death into consideration. Senator James recalled the compelling testimony by families of two young marines who were killed, but he suggested there may have been extenuating factors why the charge had not been pursued all the way. He voiced concern passage of the measure might "turn bad facts into bad law" and situations other than the unique one regarding the two young men should be taken into consideration. He asked for input from the committee. Senator Porter acknowledged sympathy with the situation of the families and reported some law enforcement individuals feel the mechanism will help prevention and will provide a penalty for those who should be charged with involuntary manslaughter. He suggested further testimony from law enforcement representatives who were not involved in the specific accident could be helpful. Senator James reiterated the terms of existing and proposed statutes. He explained present statutes allow involuntary manslaughter only with gross negligence, and gross negligence is something above a mere inadvertent act. He said, "Negligence is just falling below the `reasonable, prudent man' standard which everybody does from time to time." He stated gross negligence requires more disregard, even though it is not recklessness, which is wanton disregard. He said under A.B. 185 that will no longer be necessary and committing the offense will allow for criminal responsibility of a death if there is proximate cause, and the offender will still be civilly liable. Senator Lee asked if a person who falls asleep and wrecks a vehicle is guilty if he has destroyed no property other than his own. If that is not a crime, he asked, will A.B. 185 make a person guilty of manslaughter if he kills someone under those circumstances. Senator James responded the person could be cited for falling asleep, and he would be guilty of involuntary manslaughter under A.B. 185 if he kills someone. Senator James explained if the person had been deprived of sleep for some time and knew, when he got into his car, that there was a good chance he might fall asleep while driving, the person would probably be guilty of gross negligence. If the person simply fell asleep from highway hypnosis the person would be guilty of simple negligence. Mr. Graham suggested everyone seems to be troubled by the fact the bill will apply due to simple negligence. He agreed the example cited by Senator James would probably be considered gross negligence or wanton disregard. He suggested the example of the person who does not realize he may fall asleep is problematical. He proposed there should be a measure slightly above simple negligence, but not as harsh as gross or wanton conduct. Senator James voiced concern with a proposal which will effectively create a third type of negligence. Senator Titus postulated the driver who falls asleep and kills his family could be subject to involuntary manslaughter in addition to the terrible tragedy with which he must live. She asked if a situation such as that should be considered a crime. Senator Porter concurred in her concern, but pointed out a bill was enacted during the last legislative session that now makes it possible for a person to take action against his parents or another relative if an injury occurs in an accident. Major Dan Hammack, Nevada Highway Patrol, declared the scenario described by Senator Titus would be considered a crime as a breach of due care as a traffic misdemeanor violation, but the deaths would not be a consideration. He said A.B. 185 was devised to find a way to focus the judicial system on accidents involving deaths and the original intention had been to allow prosecution as a gross negligence type of activity. Major Hammack agreed it is at the discretion of the district attorney to bring a charge of involuntary manslaughter, but historically the charge has not been used frequently, even when multiple violations have been present. He opined placing the offense in the area of simple negligence will give rise to the recognition that a death was involved. Senator Adler asked if a person will be guilty of misdemeanor manslaughter under A.B. 185 if he is driving at 70 miles per hour, illegal under Nevada law, and a drunk crosses the center line and hits the first driver head on and the drunk dies. He indicated there normally would be no civil suit against the speeder under the comparative negligence doctrine. Mr. Graham responded the proximate cause will not be due to the speed, but rather will be due to the drunk crossing the line. He opined proximate cause will have to be proven. Senator James stated he has difficulty extending the criminal law in a death situation that does not involve the traditional level of the state of mind under which the offense would be prosecuted. He suggested the request for the bill is to find a higher level of intent for a higher crime with a higher penalty under which to prosecute. He said, "What we're getting is almost strict liability for death." He continued, "If there's a traffic infraction and a death occurs, it's almost like a strict liability, and I'm just concerned about extending the criminal law to that level." Major Hammack stated the NRS chapter 200 statute has been used in the past for traffic violations where there was gross negligence. He stated A.B. 185 includes specific prohibitions for violations under the gross misdemeanor and felony sections of NRS chapters 484 and 706. He said it will add simple negligence to which many are opposed, and over which many have expressed concern that it will be used to plea bargain from certain felonies to a lower offense. He suggested specific statutes such as felony reckless driving, felony DUI or attempting to elude a police officer in which a death is involved could be charged jointly as a felony and a simple negligence and then be dropped to the misdemeanor. He explained that was the reason many want the level to be at least to a gross misdemeanor or felony level. Senator James asked if section 2, subsection 1 is a restatement or a change of existing law. The committee debated the point. Senator James declared he would vote against the bill if it includes simple negligence. Senator Adler suggested including a requirement that the offender must have responsibility for greater than 50 percent of the cause of the death. He said there may be instances in which the offender has partial legal responsibility for a death, but is not primarily responsible for the death and he may be held criminally liable. After much discussion, Major Hammack proposed references to NRS chapters 484 and 706 be left in the bill in the expectation the judge may recognize there has been a higher degree of negligence which would bring the offense up to a gross negligence type of standard in which multiple offenses have resulted in a death. Senator James accepted Major Hammack's suggestion and proposed deletion of the references to simple negligence in section 1, subsection 2 and in section 2, subsection 2. SENATOR PORTER MOVED TO AMEND AND DO PASS A.B. 185 AS PROPOSED. SENATOR ADLER SECONDED THE MOTION. Senator Lee asked if the charge will include the words "involuntary manslaughter." Senator James responded the words "involuntary manslaughter" will not be included in the charge unless there has been gross negligence. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James opened discussion of A.B. 186 which will allow a person to speak for a victim in the victim's absence.. He pointed out there have been concerns with the bill. ASSEMBLY BILL 186: Revises provisions governing evidence considered at hearing to determine sentence to be imposed on criminal defendant. Senator James recalled personal representative or relative has been included, and the definition of victim has been expanded. He stated the problem arises because the district attorney has a duty to notify all persons involved. Mr. Graham explained the intent is to not preclude testimony from interested parties if a primary victim cannot testify. He acknowledged the bill may expand the notification requirements, so he proposed the notification requirement be limited to the primary victim. He suggested notification to the victim or surviving spouse should be adequate. Senator James asked if the notice set forth on line 16 is adequate because victim should include either the person or relative of the person as described in the bill. Mr. Graham agreed. Senator Lee asked if a victim who survives should notify the court of the person he elects to speak on his behalf, or if wording could be included that the person who was originally notified of the victim's injury or death would suffice as the person to be notified at the time of sentencing. Mr. Graham pointed out the original bill was too limiting and as a result the bill was amended to ensure such persons will not be excluded from making a statement at the time of sentencing, not simply to serve notice. Ms. Combs called attention to the bracketed portion under subsection 5 referring to NRS 213.005. She said: For the purposes of that section, a victim is defined as a person against whom the crime has been committed, a person injured or killed as a result of the crime, and the surviving spouse, parents or children. So those are the people that currently are given notification. One possible change to the bill might be to include another section saying that for the purposes of the notification, in subsection 4 a victim has that meaning under NRS 213.005. Mr. Graham submitted that will basically leave notification as it is at present, but will expand the range of those that will be allowed to testify. He said a computerized system is presently used to send out notification to the victim or survivors. Senator James proposed the definition of victim for notification be kept as is under NRS 213.005, but the bill be expanded so that any of those concerned people will have the authorization to testify at the sentencing hearing. Mr. Graham endorsed the proposal. SENATOR LEE MOVED TO AMEND AND DO PASS A.B. 186 AS PROPOSED. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * In the absence of further business before the committee, Senator James adjourned the hearing at 10:15 a.m. RESPECTFULLY SUBMITTED: Judy Jacobs, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary April 13, 1995 Page