Assembly Bill No. 243

Assembly Bill No. 243-Assemblymen Sandoval, Carpenter, Anderson, Lee, Lambert, Amodei, Nolan, Manendo, Collins, Tiffany, Hickey, Humke, Marvel, Braunlin, Neighbors, Buckley, Herrera, Berman, Segerblom and Perkins

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AN ACT relating to transportation; revising the provisions governing the operation of a motor vehicle while under the influence of intoxicating liquor or a controlled substance; revising the provisions governing the operation of a vessel while under the influence of intoxicating liquor or a controlled substance; imposing a fee for chemical testing upon a person convicted of operating a vessel while under the influence of intoxicating liquor or a controlled substance; increasing the penalty in certain circumstances for a person convicted of operating a vessel while under the influence of intoxicating liquor or a controlled substance; and providing other matters properly relating thereto.

[Approved June 12, 1997]

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. NRS 484.122 is hereby amended to read as follows:
484.1221. "Premises to which the public has access" means property in private or public ownership onto which members of the public [is] regularly enter, are reasonably likely to enter, or are invited or permitted to enter [for civic or commercial purposes, such as the roadway or parking lot appurtenant to a governmental building, a business, an apartment house or a mobile home park, but does not include a private way on a farm or the] as invitees or licensees, whether or not access to the property by some members of the public is restricted or controlled by a person or a device.
2. The term includes, but is not limited to:
(a) A parking deck, parking garage or other parking structure.
(b) A paved or unpaved parking lot or other paved or unpaved area where vehicles are parked or are reasonably likely to be parked.
(c) A way that provides access to or is appurtenant to:
(1) A place of business;
(2) A governmental building;
(3) An apartment building;
(4) A mobile home park;
(5) A residential area or residential community which is gated or enclosed or the access to which is restricted or controlled by a person or a device; or
(6) Any other similar area, community, building or structure.
3. The term does not include:
(a) A private way on a farm.
(b) The driveway of an individual dwelling.
Sec. 2. NRS 484.383 is hereby amended to read as follows:
484.383 1. Except as otherwise provided in subsections 3 and 4, any person who drives or is in actual physical control of a vehicle on a highway or on premises to which the public has access shall be deemed to have given his consent to an evidentiary test of his blood, urine, breath or other bodily substance for the purpose of determining the alcoholic content of his blood or breath or the presence of a controlled substance when such a test is administered at the direction of a police officer having reasonable grounds to believe that the person to be tested was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance.
2. If the person to be tested pursuant to subsection 1 is dead or unconscious, the officer shall direct that samples of blood from the person be tested.
3. Any person who is afflicted with hemophilia or with a heart condition requiring the use of an anticoagulant as determined by a physician is exempt from any blood test which may be required pursuant to this section but must, when appropriate pursuant to the provisions of this section, be required to submit to a breath or urine test.
4. If the alcoholic content of the blood or breath of the person to be tested is in issue [, he] :
(a) Except as otherwise provided in this section, the person may refuse to submit to a blood test if means are reasonably available to perform a breath test. [If the person requests]
(b) The person may request a blood test [and the] , but if means are reasonably available to perform a breath test [,] when the blood test is requested, and [he] the person is subsequently convicted, he must pay for the cost of the [substituted] blood test, including the fees and expenses of witnesses in court.
(c) A police officer may direct the person to submit to a blood test as set forth in subsection 7 if the officer has reasonable grounds to believe that the person:
(1) Caused death or substantial bodily harm to another person as a result of driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance; or
(2) Has been convicted within the previous 7 years of:
(I) A violation of NRS 484.379, 484.3795, subsection 2 of NRS 488.205, NRS 488.206, section 4 of this act or a law of another jurisdiction that prohibits the same or similar conduct; or
(II) Any other offense in this state or another jurisdiction in which death or substantial bodily harm to another person resulted from driving, operating or being in actual physical control of a vehicle or a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance.
5. If the presence of a controlled substance in the blood of the person is in issue, the officer may direct him to submit to a blood or urine test, or both, in addition to the breath test.
6. Except as otherwise provided in subsections 3 and 5, a police officer shall not direct a person to submit to a urine test.
7. If a person to be tested fails to submit to a required test as directed by a police officer [under] pursuant to this section and the officer has reasonable [cause] grounds to believe that the person to be tested was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or a controlled substance, the officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested. Not more than three such samples may be taken during the 5-hour period immediately following the time of the initial arrest. In such a circumstance, the officer is not required to provide the person with a choice of tests for determining the alcoholic content or presence of a controlled substance in his blood.
Sec. 3. Chapter 488 of NRS is hereby amended by adding thereto the provisions set forth as sections 4 to 8, inclusive, of this act.
Sec. 4. 1. A person who:
(a) Is under the influence of intoxicating liquor;
(b) Has 0.10 percent or more by weight of alcohol in his blood;
(c) Is found by measurement within 2 hours after operating or being in actual physical control of a vessel under power or sail to have 0.10 percent or more by weight of alcohol in his blood;
(d) Is under the influence of a controlled substance, or under the combined influence of intoxicating liquor and a controlled substance; or
(e) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders him incapable of safely operating or being in actual physical control of a vessel under power or sail,
and does any act or neglects any duty imposed by law while operating or being in actual physical control of any vessel under power or sail, if the act or neglect of duty proximately causes the death of, or substantial bodily harm to, a person other than himself, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years and shall be further punished by a fine of not less than $2,000 nor more than $5,000. A person so imprisoned must, insofar as practicable, be segregated from offenders whose crimes were violent and, insofar as practicable, be assigned to an institution or facility of minimum security.
2. A prosecuting attorney shall not dismiss a charge of violating the provisions of subsection 1 in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless he knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial. A sentence imposed pursuant to subsection 1 must not be suspended, and probation must not be granted.
3. If consumption is proven by a preponderance of the evidence, it is an affirmative defense under paragraph (c) of subsection 1 that the defendant consumed a sufficient quantity of alcohol after operating or being in actual physical control of the vessel under power or sail, and before his blood was tested, to cause the alcohol in his blood to equal or exceed 0.10 percent. A defendant who intends to offer this defense at a trial or preliminary hearing must, not less than 14 days before the trial or hearing or at such other time as the court may direct, file and serve on the prosecuting attorney a written notice of that intent.
4. If a person less than 15 years of age was in the vessel at the time of the defendant's violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant.
Sec. 5. 1. Before sentencing a defendant pursuant to section 4 of this act, the court shall require that the defendant be evaluated to determine whether he is an abuser of alcohol or drugs and whether he can be treated successfully for his condition.
2. The evaluation must be conducted by:
(a) A counselor certified to make such an evaluation by the bureau of alcohol and drug abuse of the rehabilitation division of the department of employment, training and rehabilitation;
(b) A physician certified to make such an evaluation by the board of medical examiners; or
(c) A psychologist certified to make such an evaluation by the board of psychological examiners.
3. The counselor, physician or psychologist who conducts the evaluation shall immediately forward the results of the evaluation to the director of the department of prisons.
Sec. 6. 1. If a defendant pleads guilty or guilty but mentally ill to, or is found guilty of, a violation of NRS 488.206 or section 4 of this act and a chemical analysis of his blood, urine, breath or other bodily substance was conducted, the court shall, in addition to any penalty provided by law, order the defendant to pay the sum of $60 as a fee for the chemical analysis. Except as otherwise provided in this subsection, any money collected for the chemical analysis must not be deducted from, and is in addition to, any fine otherwise imposed by the court and must be:
(a) Collected from the defendant before or at the same time that the fine is collected.
(b) Stated separately in the judgment of the court or on the court's docket.
2. All money collected pursuant to subsection 1 must be paid by the clerk of the court to the county or city treasurer, as appropriate, on or before the fifth day of each month for the preceding month.
3. The treasurer shall deposit all money received by him pursuant to subsection 2 in the county or city treasury, as appropriate, for credit to the fund for forensic services created pursuant to NRS 453.575. The money must be accounted for separately within the fund.
4. Except as otherwise provided in subsection 5, each month the treasurer shall, from the money credited to the fund pursuant to subsection 3, pay any amount owed for forensic services and deposit any remaining money in the county or city general fund, as appropriate.
5. In counties that do not receive forensic services under a contract with the state, the money credited to the fund pursuant to subsection 3:
(a) Except as otherwise provided in paragraph (b), must be:
(1) Expended to pay for the chemical analyses performed within the county;
(2) Expended to purchase and maintain equipment to conduct such analyses;
(3) Expended for the training and continuing education of the employees who conduct such analyses; and
(4) Paid to law enforcement agencies which conduct such analyses to be used by those agencies in the manner provided in this subsection.
(b) May only be expended to cover the costs of chemical analyses conducted by, equipment used by, or training for employees of an analytical laboratory that is approved by the committee on testing for intoxication created in NRS 484.388.
Sec. 7. 1. Any person who operates or is in actual physical control of a vessel under power or sail on the waters of this state shall be deemed to have given his consent to a preliminary test of his breath to determine the alcoholic content of his breath when the test is administered at the direction of a peace officer after a vessel accident or collision or where an officer stops a vessel, if the officer has reasonable grounds to believe that the person to be tested was operating or in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance.
2. If the person fails to submit to the test, the officer shall arrest him and take him to a convenient place for the administration of a reasonably available evidentiary test under NRS 488.208.
3. The result of the preliminary test must not be used in any criminal action, except to show there were reasonable grounds to make an arrest.
Sec. 8. 1. Except as otherwise provided in subsection 2, an evidentiary test of breath to determine the percentage of alcohol in a person's breath may be used to establish that percentage only if two consecutive samples of the person's breath are taken and:
(a) The difference between the percentage of alcohol in the person's breath indicated by the two samples is less than or equal to 0.02;
(b) If the provisions of paragraph (a) do not apply, a third evidentiary test of breath is administered and the difference between the percentage of alcohol in the person's breath indicated by the third sample and one of the first two samples is less than or equal to 0.02; or
(c) If the provisions of paragraphs (a) and (b) do not apply, a fourth evidentiary test is administered. Except as otherwise provided in NRS 488.208, the fourth evidentiary test must be a blood test.
2. If the person fails to provide the second or third consecutive sample, or to submit to the fourth evidentiary test, the results of the first test may be used alone as evidence of the percentage of alcohol in the person's breath. If for some other reason a second, third or fourth sample is not obtained, the results of the first test may be used with all other evidence presented to establish the percentage.
3. If a person refuses or otherwise fails to provide a second or third consecutive sample or submit to a fourth evidentiary test, a peace officer may direct that reasonable force be used to obtain a sample or conduct a test pursuant to NRS 488.208.
Sec. 9. NRS 488.2055 is hereby amended to read as follows:
488.2055 As used in NRS 488.206 [and 488.207] and section 4 of this act, the phrase "0.10 percent or more by weight of alcohol in his blood" includes a concentration of alcohol in the blood or breath of a person of 0.10 gram or more by weight of alcohol:
1. Per 100 milliliters of his blood; or
2. Per 210 liters of his breath.
Sec. 10. NRS 488.208 is hereby amended to read as follows:
488.2081. Except as otherwise provided in subsections [5 and 6,] 3 and 4, a person who operates or is in actual physical control of a vessel under power or sail on the waters of this state shall be deemed to have given his consent to an evidentiary test of his blood, urine, breath or other bodily substance for the purpose of determining the alcoholic content of his blood or breath or the presence of a controlled substance when such a test is administered at the direction of a peace officer having reasonable grounds to believe that the person to be tested was operating or [exercising] in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance.
2. [If a person refuses to submit to such a test as directed by a peace officer, evidence of that refusal is admissible in any criminal action to determine whether the person was operating or exercising actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance.
3. The person to be tested must be informed that his refusal to submit to the test is admissible pursuant to subsection 2.
4. Any person who is dead, unconscious or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent, and any such test may be administered whether or not the person is informed that evidence of his refusal to submit to the test is admissible.
5.] If the person to be tested pursuant to subsection 1 is dead or unconscious, the officer shall direct that samples of blood from the person be tested.
3. Any person who is afflicted with hemophilia or with a heart condition requiring the use of an anticoagulant as determined by a physician is exempt from any blood test which may be required pursuant to this section, but [may] must, when appropriate pursuant to the provisions of this section, be required to submit to a [test of his] breath or urine [.
6. Except as otherwise provided in subsection 9, if] test.
4. If the alcoholic content of the blood or breath of the person to be tested is in issue [, he] :
(a) Except as otherwise provided in this section, the person may refuse to submit to a blood test if means are reasonably available to perform a breath test. [If the person requests]
(b) The person may request a blood test [and the] , but if means are reasonably available to perform a breath test when the blood test is requested, and [he] the person is subsequently convicted, he must pay for the cost of the [substituted] blood test, including the fees and expenses of witnesses in court.
[7.] (c) A peace officer may direct the person to submit to a blood test as set forth in subsection 7 if the officer has reasonable grounds to believe that the person:
(1) Caused death or substantial bodily harm to another person as a result of operating or being in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance; or
(2) Has been convicted within the previous 7 years of:
(I) A violation of NRS 484.379, 484.3795, subsection 2 of NRS 488.205, NRS 488.206, section 4 of this act or a law of another jurisdiction that prohibits the same or similar conduct; or
(II) Any other offense in this state or another jurisdiction in which death or substantial bodily harm to another person resulted from driving, operating or being in actual physical control of a vehicle or a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance.
5. If the presence of a controlled substance in the blood of the person is in issue, the officer may direct him to submit to a blood or urine test, or both, in addition to the breath test.
[8.] 6. Except as otherwise provided in subsections [5 and 7,] 3 and 5, a peace officer shall not direct a person to submit to a urine test.
[9. Except as otherwise provided in this subsection, a person who refuses to submit to a test required by this section must not be tested. If an officer has reasonable cause to believe that:
(a) The]
7. If a person to be tested fails to submit to a required test as directed by a peace officer pursuant to this section and the officer has reasonable grounds to believe that the person to be tested was operating or in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance , [; and
(b) The person thereby caused the death or substantial bodily harm of another,] the officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested. Not more than three such samples may be taken during the 5-hour period immediately following the time of the initial arrest. In such a circumstance, the officer is not required to provide the person with a choice of tests for determining the alcoholic content or presence of a controlled substance in his blood.
Sec. 11. NRS 488.209 is hereby amended to read as follows:
488.209 1.If a person refuses to submit to a required chemical test provided for in NRS 488.208, evidence of that refusal is admissible in any criminal action arising out of acts alleged to have been committed while the person was operating or in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance.
2. A court may not exclude evidence of a required test or failure to submit to such a test if the peace officer or other person substantially complied with the provisions of NRS 488.208.
[2.] 3. If a person submits to [such a test,] a chemical test provided for in NRS 488.208, full information concerning that test must be made available, upon his request, to him or his attorney.
[3.] 4. Evidence of a required test is not admissible in a criminal proceeding unless it is shown by documentary or other evidence that the device for testing breath was certified, calibrated, maintained and operated as provided by the regulations of the committee on testing for intoxication adopted pursuant to NRS 484.3882, 484.3884, 484.3886 or 484.3888.
[4.] 5. If the device for testing breath has been certified by the committee on testing for intoxication to be accurate and reliable pursuant to subsection 1 of NRS 484.3882, it is presumed that, as designed and manufactured, the device is accurate and reliable for the purpose of testing a person's breath to determine the percent by weight of alcohol in the person's breath.
[5.] 6. A court shall take judicial notice of the certification by the director [of the department of motor vehicles and public safety] of a person to operate testing devices of one of the certified types. If a test to determine the amount of alcohol in a person's breath has been performed with a certified type of device by a person who is certified pursuant to NRS 484.3886 or 484.3888, it is presumed that the person operated the device properly.
[6.] 7. This section does not preclude the admission of evidence of a test of a person's breath where the:
(a) Information is obtained through the use of a device other than one of a type certified by the committee on testing for intoxication.
(b) Test has been performed by a person other than one who is certified by the director . [of the department of motor vehicles and public safety.]
Sec. 12. NRS 50.325 is hereby amended to read as follows:
50.3251. If a person is charged with an offense punishable pursuant to chapter 453 , [or] 484 or 488 of NRS or homicide resulting from driving , operating or being in actual physical control of a vehicle or a vessel under power or sail while under the influence of intoxicating liquor, a controlled substance or a chemical, poison or organic solvent, and it is necessary to prove:
(a) The existence of any alcohol;
(b) The quantity of a controlled substance; or
(c) The existence or identity of a controlled substance, chemical, poison or organic solvent,
the prosecuting attorney may request that the affidavit or declaration of an expert or other person described in NRS 50.315 and 50.320 be admitted into evidence at the trial or preliminary hearing concerning the offense. Except as otherwise provided in NRS 50.315 and 50.320, the affidavit or declaration must be admitted into evidence.
2. If the request is to have the affidavit or declaration admitted into evidence at a preliminary hearing or hearing before a grand jury, the affidavit or declaration must be admitted into evidence upon submission. If the request is to have the affidavit or declaration admitted into evidence at trial, the request must be:
(a) Made at least 10 days before the date set for the trial;
(b) Sent to the defendant's counsel and to the defendant, by registered or certified mail by the prosecuting attorney; and
(c) Accompanied by a copy of the affidavit or declaration and the name, address and telephone number of the affiant or declarant.
3. The provisions of this section do not prohibit either party from producing any witness to offer testimony at trial.
Sec. 13. NRS 458.260 is hereby amended to read as follows:
458.260 1. Except as otherwise provided in subsection 2, the use of alcohol, the status of drunkard and the fact of being found in an intoxicated condition are not:
(a) Public offenses and shall not be so treated in any ordinance or resolution of a county, city or town.
(b) Elements of an offense giving rise to a criminal penalty or civil sanction.
2. The provisions of subsection 1 do not apply to [the offenses enumerated in NRS 412.536, 412.538, 483.460, 483.490, 484.379, 484.3795, 484.384, 488.205, 493.130, 705.250, subsection 2 of NRS 483.560 and homicide] :
(a) The provisions of NRS 483.460, 483.490, subsection 2 of NRS 483.560 and NRS 484.384;
(b) An offense for which intoxication is an element of the offense pursuant to the provisions of a specific statute;
(c) A homicide resulting from driving , operating or being in actual physical control of a vehicle or a vessel under power or sail while under the influence of intoxicating liquor or [to similar offenses] a controlled substance; and
(d) Any offense similar to an offense set forth in paragraph (a), (b) or (c) that is set forth in [any] an ordinance or resolution of a county, city or town.
3. This section does not make intoxication an excuse or defense for any criminal act.
Sec. 14. NRS 458.270 is hereby amended to read as follows:
458.270 1. Except as otherwise provided in subsection 7, a person who is found in any public place under the influence of alcohol, in such a condition that he is unable to exercise care for his own health or safety or the health or safety of others, must be placed under civil protective custody by a peace officer.
2. A peace officer may use upon such a person that kind and degree of force which would be lawful if he were effecting an arrest for a misdemeanor with a warrant.
3. If a licensed facility for the treatment of persons who abuse alcohol exists in the community where the person is found, he must be delivered to the facility for observation and care. If no such facility exists in the community, the person so found may be placed in a county or city jail or detention facility for shelter or supervision for his own health and safety until he is no longer under the influence of alcohol. He may not be required against his will to remain in either a licensed facility, jail or detention facility longer than 48 hours.
4. An intoxicated person taken into custody by a peace officer for a public offense must immediately be taken to a secure detoxification unit or other appropriate medical facility if his condition appears to require emergency medical treatment. Upon release from the detoxification unit or medical facility, the person must immediately be remanded to the custody of the apprehending peace officer and the criminal proceedings proceed as prescribed by law.
5. The placement of a person found under the influence of alcohol in civil protective custody must be:
(a) Recorded at the facility, jail or detention facility to which he is delivered; and
(b) Communicated at the earliest practical time to his family or next of kin if they can be located and to the division or to a local alcohol abuse authority designated by the division.
6. Every peace officer and other public employee or agency acting pursuant to this section is performing a discretionary function or duty.
7. The provisions of this section do not apply to [any driver] a person who is apprehended or arrested for [the offense of operating a vehicle under the influence of intoxicating liquor or controlled substances, pursuant to chapter 484 of NRS.] :
(a) An offense for which intoxication is an element of the offense pursuant to the provisions of a specific statute;
(b) A homicide resulting from driving, operating or being in actual physical control of a vehicle or a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance; and
(c) Any offense similar to an offense set forth in paragraph (a) or (b) of this subsection that is set forth in an ordinance or resolution of a county, city or town.
Sec. 15. NRS 629.065 is hereby amended to read as follows:
629.065 1. Each provider of health care shall, upon request, make available to a law enforcement agent or district attorney the health care records of a patient which relate to a test of his blood, breath or urine if:
(a) The patient is suspected of driving , operating or being in actual physical control of a vehicle or a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance [;] in violation of NRS 484.379, 484.3795, subsection 2 of NRS 488.205 or NRS 488.206 or section 4 of this act; and
(b) The records would aid in the related investigation.
To the extent possible, the provider of health care shall limit the inspection to the portions of the records which pertain to the presence of alcohol or a controlled substance in the blood, breath or urine of the patient.
2. The records must be made available at a place within the depository convenient for physical inspection. Inspection must be permitted at all reasonable office hours and for a reasonable length of time. The provider of health care shall also furnish a copy of the records to the law enforcement agent or district attorney who requests it and pays the costs of reproducing the copy.
3. Records made available pursuant to this section may be presented as evidence during a related criminal proceeding against the patient.
4. A provider of health care, his agents and employees are immune from any civil action for any disclosures made in accordance with the provisions of this section or any consequential damages.
Sec. 16. NRS 488.207 is hereby repealed.
Sec. 17. The amendatory provisions of this act do not apply to offenses that are committed before October 1, 1997.
Sec. 18. The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
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