MINUTES OF THE SENATE COMMITTEE ON TRANSPORTATION Sixty-eighth Session May 11, 1995 The Senate Committee on Transportation was called to order by Chairman William R. O'Donnell, at 3:15 p.m., on Thursday, May 11, 1995, in Room 226 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator William R. O'Donnell, Chairman Senator Maurice Washington, Vice Chairman Senator Lawrence E. Jacobsen Senator Jon C. Porter Senator Joseph M. Neal, Jr. Senator Raymond C. Shaffer Senator O. C. Lee STAFF MEMBERS PRESENT: Don O. Williams, Chief Principal Research Analyst Diane Rea, Committee Secretary OTHERS PRESENT: Stewart Bell, District Attorney, Clark County, Nevada Suzanne Hanson, Criminalist, Breath Alcohol Section, Washoe County Sheriff's Office Buddy Porter, Self Harvey Whittemore, Lobbyist, Nevada Resort Association, Nevada Beer Wholesalers Association Fred Messmann, Boating Law Administrator, Bureau of Law Enforcement, Nevada Division of Wildlife Roger Whomes, Chairman, Northern Nevada Driving Under the Influence (DUI) Task Force, Washoe County District Attorney's Office Cecile Rizzo, STOP Driving Under the Influence (DUI) Sandy Heverly, STOP Driving Under the Influence (DUI) Laurel Stadler, Mothers Against Drunk Driving (MADD) Gregory Harwell, Nevada Division, California State Automobile Association (CSAA) Cindie Porter, Self Ben Graham, Clark County District Attorney's Office Senator O'Donnell opened the hearing on Senate Bill (S.B.) 326. SENATE BILL 326: Revises standard for determining operation of vehicle or vessel while intoxicated. (BDR 43-1582) Stewart Bell, District Attorney, Clark County, Nevada, testified on behalf of the district attorney's office in support of the bill to change the Driving Under the Influence (DUI) from .10 Blood Alcohol Count (BAC) to .08 BAC. He stated that the Clark County District Attorney's Office prosecutes more DUIs in a week than any other office in the state of Nevada. There is about a 10 percent variance in a breath test. In most misdemeanor cases, between .08 and .11 to .12 BAC, those people will be negotiated for reckless driving convictions. From .12 BAC and up, the district attorney can negotiate convictions for DUI and the corresponding consequences. He said, realistically; if the line for BAC is moved, the district attorney's office may have one more case a week. From a systemic point of view, they may go from 2,000 cases a year to 2,040 cases a year. They will get convictions for DUI in .11 and .12 BAC cases that they cannot get with the present law. The real issue is the ability and right, under the laws of the state, for people to drink responsibly in the name of public safety. Mr. Bell said if the BAC is moved to .08, people will be more conscious about drinking too much, and may not take that extra drink or two that will make the difference in lives and deaths on the highway. He said that his conclusion is that the difference will not impair anybody's ability to drink socially and responsibly, yet this change will save some lives. Senator Porter stated that from discussions with judges in Clark County, he has found that there are ample laws in place, which enforced properly, there will be no need to lower the BAC level. He asked Mr. Bell's opinion on that issue. Mr. Bell responded, the law now says you are guilty if a person has a .10 BAC, or a person is guilty if they are impaired. The district attorneys will get convictions of people at a .11 and .12 BAC level if this law is passed, that they do not get now because of the variance. The more sure the case is, the easier it is to get a fair result. He said that he does not think Senator Porter's statement is a completely accurate statement. Senator O'Donnell asked what happens to the people who do not go to trial? Mr. Bell responded that those are clear-cut cases of a defendant with a .17 or .22 BAC and most of them plead guilty. They are required to do a minimum of 48 hours of community service and attend an educational DUI class for 6 to 8 hours, they lose their driving privilege for a period of time, and they are fined a minimum of $200 to a maximum of $1,000, plus administrative assessments. Senator Porter asked what if some legislation is strengthened on the .05 BAC level; such as increased penalties, or more specific guidelines to the district attorney's offices to follow? Mr. Bell replied: The more specific it is, the better it is. The fairer it is, the more evenly it is enforced, the easier it is for judges and juries ... anything that is specific helps make the law be more fairly implemented. If it decided that doing something at an .05 or a .07 BAC level is the proper way to balance people's right to drink responsibly, and public safety ... whatever law the Legislature passes is the law that will be enforced. Senator Jacobsen asked what percentage of traffic deaths in Clark County relate to DUI? Mr. Bell said that he does not know. Suzanne Hanson, Criminalist, Breath Alcohol Section, Washoe County Sheriff's Office, testified on how the Intoxilyzer 5000 functions. She gave a copy of a check list (Exhibit C) that the person who administers the test would use when giving a test. The result of the test (Exhibit D) printout is provided for the committee. Senator Jacobsen asked if the evidence provided by the Intoxilyzer is challengeable in court? Ms. Hanson replied that the evidence is challengeable by the defense attorney. Senator Jacobsen asked if the proof of the alcohol makes any difference? Ms. Hanson replied that the test is based on a volume of alcohol. Buddy Porter, Self, testified concerning being hit by a drunk driver (Exhibit E). Senator O'Donnell stated that there are no words that can explain what the committee feels. No one likes to see anyone in Buddy Porter's situation. Senator O'Donnell recessed the meeting briefly. Harvey Whittemore, Lobbyist, Nevada Resort Association, Nevada Beer Wholesalers Association, testified no one involved in the issue of lowering the BAC expressed in S.B. 326, can express their concern over the victims of drunk driving. The issue before the committee requires the reasonable standards associated with operating a vehicle while intoxicated and providing standards with respect to intoxication in Nevada. He said he thinks it is important that the committee realize that over 93 percent of all alcohol-related fatalities involve drivers with a BAC above .10 BAC. In Nevada, the most current statistics involving arrests, suggest that by year, DUI arrests range from over 10,500 in 1989 to 10,900 in 1993. The high was the year of 1990 with 12, 738. The average BAC of those individuals involved in DUI arrests were .16, .17 and .18 BAC, He said the individuals that the committee is attempting to defer from drunk driving are those individuals who far exceed the limit already expressed in the .10 BAC. The greatest deterrent to drunk driving in the state of Nevada is the immediate revocation of a driver's license. Since that law was enacted, DUI arrests have dropped by 41 percent. He said that the associations he represents do not condone drunk driving. Mr. Whittemore continued saying .10 BAC is appropriate because it is working, it is and will keep Nevada in a range that is consistent with those states that have addressed this issue. California, Florida, Kansas, Maine, Massachusetts are a few states that have adopted .08 BAC. The bulk of the remaining states have a BAC of .10. He said Nevada has adopted some very strong provisions that are unique to Nevada. Nevada has an administrative license revocation, mandatory 90-day revocation and open container law, a breath test is allowed, and a DWI (Driving While Intoxicated) is prohibited. He said that between .00 BAC and .05 BAC there is a presumption that you are not intoxicated. Between .05 BAC and .10 BAC, the BAC which is acquired as a result of a test, may be used as a factor to determine whether a DUI charge can be developed. He said he would strongly urge the committee to increase the penalties associated with drunk driving on a step basis above .10 BAC. Mr. Whittemore presented Exhibit F. Fred Messmann, Boating Law Administrator, Bureau of Law Enforcement, Nevada Division of Wildlife (NDW), testified sections 8, 9, and 10 of S.B. 326 affect the provisions of the Nevada Boat Act (NBA) dealing with operating a vessel under the influence , normally classified as OUI's (Operating Under the Influence) under chapter 488 of Nevada Revised Statutes (NRS). The NDW is responsible for the enforcement of chapter 488 of NRS and supports the standards being lowered from .10 BAC to .08 BAC. He provided some statistics for the committee to consider (Exhibit G). Roger Whomes, Chairman, Northern Nevada Driving Under the Influence (DUI) Task Force, Washoe County District Attorney's Office, testified he is in support of the .08 BAC. The impact on the tourists will not be affected. A memo from Pete Zadra is submitted (Exhibit H). Mr. Whomes stated that he visits the scene of DUI accidents and has seen the results of these accidents. Senator Neal questioned the economic impact from purchase of liquor, if Nevada goes to a .08 BAC. Mr. Whomes replied if there are people arrested for the .08 BAC, there may be an economic difference as a result of the fines imposed, but the injuries as a result of the drunk driver cause a different impact on the state. Senator O'Donnell asked what is the gist of the case law? Mr. Whomes answered: There is a number of presumptions that exist. The Nevada Supreme Court has been very loath to burden a criminal defendant with those. They have been quick to strike down court cases that have allowed that presumption to go forward and meet the lower courts not instruct juries in that way. At most you have got an inference. Mr. Whomes stated that Washoe County has an ordnance referred to as DWAI (Driving While Ability Impaired). It is a violation of law, by ordinance, to be between .05 BAC and .09 BAC. A person could be prosecuted for DWAI in Washoe County at a .05 BAC. Senator Porter asked if this is a county ordinance and what is the penalty? Mr. Whomes stated this is a county ordinance and there are a range of penalties up to $1,000 fine and/or 6 months in jail. The standard penalty seems to be a fine of around $350 plus administrative assessment. If convicted they have to go to the victim impact panel and DUI level one school. Cecile Rizzo, STOP Driving Under the Influence (DUI), testified she lost her daughter 2 years ago to a drunk driver. She said that she does not know if that .08 BAC legislation would have provided a punishment for the woman who killed Deena Rizzo because her BAC was at .05 when the woman was tested 3 hours later. She said she thinks a .08 BAC legislation will send a message to a lot of people. She said she thinks the .08 BAC will make a difference in the way people act and think. Sandy Heverly, STOP Driving Under the Influence (DUI), testified the tourist industry will not be jeopardized by passing this bill. She said prohibition has its place and that is in the vehicle. She said almost one-third (14 states) of the United States have passed the .08 BAC law. Laurel Stadler, Mothers Against Drunk Driving (MADD), testified she had a letter from Mr. Pete Sadra supporting the bill. She provided two charts for the committee (Exhibits I and J) regarding BAC and Crash Risk. Additional information provided for the committee is a memorandum from the Department of Prisons (Exhibit K), Fiscal Note (Exhibit L), and Amendment No. 218 (Exhibit M). Gregory Harwell, Nevada Division, California State Automobile Association (CSAA), testified the national AAA supports the .08 BAC. Cindie Porter, Self, testified that it is your worst nightmare to have one of your children injured senselessly. Buddy's injuries are major and he will probably be in his wheelchair for the rest of his life. She said this does not just affect the immediate family. She said it affects everyone. The cost is overwhelming. She said we need stiffer laws against drunk drivers. Doug Dickerson, Lobbyist, City Manager's Office, Las Vegas, left a letter for the committee from Brad Jerbic on S.B. 326 (Exhibit O). Senator O'Donnell closed the hearing on S.B. 326. Senator O'Donnell opened the hearing on S.B. 273. SENATE BILL 273: Revises standard for determining whether operator of motor vehicle is under influence of alcohol and caused death of, or substantial bodily harm to, another person. Senator O'Donnell said that he has a bill draft request (BDR) for a resolution (EXHIBIT N) to memorialize Deena Rizzo and asked for a motion. SENATOR LEE MOVED FOR INTRODUCTION OF THE SENATE CONCURRENT RESOLUTION. SENATOR WASHINGTON SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Ben Graham, Clark County District Attorney's Office, testified: It's purpose is to bring up-to-date the provision on DUI with substantial bodily harm to do what we did with misdemeanor DUIs and ... Senator O'Donnell said to make it congruent with the other portion. He said he does not see any problem with an affirmative vote on this. SENATOR WASHINGTON MOVED TO DO PASS SENATE BILL 273. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator O'Donnell adjourned the meeting at 4:55 p.m. RESPECTFULLY SUBMITTED: Diane C. Rea, Committee Secretary APPROVED BY: Senator William R. O'Donnell, Chairman DATE: Senate Committee on Transportation May 11, 1995 Page