(REPRINTED WITH ADOPTED AMENDMENTS) SECOND REPRINT
Assembly Bill No. 312-Committee on Judiciary
(On Behalf of the District Attorneys' Association)
March 26, 1997
____________
Referred to Committee on Judiciary
SUMMARY--Revises provisions that authorize use of affidavit to specifically authorize use of declaration in lieu of affidavit. (BDR 4-663)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State or on Industrial Insurance: No.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to legal documents; revising provisions that authorize the use of an affidavit to specifically authorize the use of a declaration in lieu of an affidavit; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1 NRS 50.310 is hereby amended to read as follows:
50.3101. The affidavit or declaration of a laboratory director who has qualified in the district court of any county as an expert witness to testify regarding the results of a test of a medical laboratory, is admissible in evidence in any civil, criminal or administrative proceeding to prove:
(a) That the affiant or declarant is a laboratory director.
(b) The results of a test that the medical laboratory is licensed to conduct and which is conducted by the medical laboratory of which the affiant or declarant is the laboratory director.
The affidavit or declaration must contain the evidentiary foundation upon which the results of the test are based, including the description of the test, the personnel involved and the controls employed in conducting the test.
2. As used in this section:
(a) "Laboratory director" has the meaning ascribed to it in NRS 652.050.
(b) "Medical laboratory" has the meaning ascribed to it in NRS 652.060.
Sec. 2. NRS 50.315 is hereby amended to read as follows:
50.3151. Except as otherwise provided in subsections 6 and 7, [a person's] the affidavit or declaration of a person is admissible in evidence in any criminal or administrative proceeding to prove:
(a) That [he] the affiant or declarant has been certified by the director of the department of motor vehicles and public safety as being competent to operate devices of a type certified by the committee on testing for intoxication as accurate and reliable for testing a person's breath to determine the amount by weight of alcohol in his breath;
(b) The identity of a person from whom the affiant or declarant obtained a sample of breath; and
(c) That the affiant or declarant tested the sample using a device of a type so certified and that the device was functioning properly.
2. Except as otherwise provided in subsections 6 and 7, the affidavit or declaration of a person who prepared a chemical solution or gas that has been used in calibrating a device for testing another's breath to determine the amount of alcohol in his breath is admissible in evidence in any criminal or administrative proceeding to prove:
(a) The [affiant's occupation;] occupation of the affiant or declarant; and
(b) That [he prepared a] the solution or gas [having] has the chemical composition necessary for accurately calibrating it.
3. Except as otherwise provided in subsections 6 and 7, the affidavit or declaration of a person who calibrates a device for testing another's breath to determine the amount of alcohol in his breath is admissible in evidence in any criminal or administrative proceeding to prove:
(a) The [affiant's occupation;] occupation of the affiant or declarant;
(b) That on a specified date [he] the affiant or declarant calibrated the device at a named law enforcement agency by using the procedures and equipment prescribed in the regulations of the committee on testing for intoxication;
(c) That the calibration was performed within the period required by the committee's regulations; and
(d) Upon completing the calibration of the device, it was operating properly.
4. Except as otherwise provided in subsections 6 and 7, the affidavit or declaration made under the penalty of perjury of a person who withdraws a sample of blood from another for analysis by an expert as set forth in NRS 50.320 is admissible in any criminal or administrative proceeding to prove:
(a) The occupation of the affiant or declarant;
(b) The identity of the person from whom the affiant or declarant withdrew the sample;
(c) The fact that the affiant or declarant kept the sample in his sole custody or control and in substantially the same condition as when he first obtained it until delivering it to another; and
(d) The identity of the person to whom the affiant or declarant delivered it.
5. Except as otherwise provided in subsections 6 and 7, the affidavit or declaration of a person who receives from another a sample of blood or urine or other tangible evidence that is alleged to contain alcohol or a controlled substance, chemical, poison or organic solvent may be admitted in any criminal , civil or administrative proceeding to prove:
(a) The occupation of the affiant [;] or declarant;
(b) The fact that the affiant or declarant received a sample or other evidence from another person and kept it in his sole custody or control in substantially the same condition as when he first received it until delivering it to another; and
(c) The identity of the person to whom the affiant or declarant delivered it.
6. If, at or before the time of the trial, the defendant establishes that:
(a) There is a substantial and bona fide dispute regarding the facts in the affidavit or declaration; and
(b) It is in the best interests of justice that the witness who signed the affidavit or declaration be cross-examined,
the court may order the prosecution to produce the witness and may continue the trial for any time the court deems reasonably necessary to receive such testimony. The time within which a trial is required is extended by the time of the continuance.
7. During any trial in which the defendant has been accused of committing a felony, the defendant may object in writing to admitting into evidence an affidavit or declaration described in this section. If the defendant makes such an objection, the court shall not admit the affidavit or declaration into evidence and the prosecution may cause the person to testify in court to any information contained in the affidavit or declaration.
8. The committee on testing for intoxication shall adopt regulations prescribing the form of the affidavits and declarations described in this section.
Sec. 3. NRS 50.320 is hereby amended to read as follows:
50.320 1. The affidavit or declaration of a chemist and any other person who has qualified in the district court of any county to testify as an expert witness regarding the presence in the breath, blood or urine of a person of alcohol, a controlled substance, or a chemical, poison or organic solvent, or the identity or quantity of a controlled substance alleged to have been in the possession of a person, which is submitted to prove:
(a) The quantity of the purported controlled substance; or
(b) The amount of alcohol or the presence or absence of a controlled substance, chemical, poison or organic solvent, as the case may be,
is admissible in the manner provided in this section.
2. An affidavit or declaration which is submitted to prove any fact set forth in subsection 1 must be admitted into evidence when submitted during any administrative proceeding, preliminary hearing or hearing before a grand jury. The court shall not sustain any objection to the admission of such an affidavit [.] or declaration.
3. The defendant may object in writing to admitting into evidence an affidavit or declaration submitted to prove any fact set forth in subsection 1 during his trial. If the defendant makes such an objection, the court shall not admit the affidavit or declaration into evidence and the prosecution may cause the person to testify in court to any information contained in the affidavit [.] or declaration.
Sec. 4. NRS 616C.230 is hereby amended to read as follows:
616C.2301. Compensation is not payable pursuant to the provisions of chapters 616A to 616D, inclusive, of NRS for an injury:
(a) Caused by the employee's willful intention to injure himself.
(b) Caused by the employee's willful intention to injure another.
(c) Proximately caused by the employee's intoxication. If the employee was intoxicated at the time of his injury, intoxication must be presumed to be a proximate cause unless rebutted by evidence to the contrary.
(d) Proximately caused by the employee's use of a controlled substance. If the employee had any amount of a controlled substance in his system at the time of his injury for which the employee did not have a current and lawful prescription issued in his name, the controlled substance must be presumed to be a proximate cause unless rebutted by evidence to the contrary.
For the purposes of paragraphs (c) and (d), the affidavit or declaration of an expert or other person described in NRS 50.315 is admissible to prove the existence of any alcohol or the existence, quantity or identity of a controlled substance in an employee's system. If the affidavit or declaration is to be so used, it must be submitted in the manner prescribed in NRS 616C.355.
2. No compensation is payable for the death, disability or treatment of an employee if his death is caused by, or insofar as his disability is aggravated, caused or continued by, an unreasonable refusal or neglect to submit to or to follow any competent and reasonable surgical treatment or medical aid.
3. If any employee persists in an unsanitary or injurious practice that imperils or retards his recovery, or refuses to submit to such medical or surgical treatment as is necessary to promote his recovery, his compensation may be reduced or suspended.
4. An injured employee's compensation, other than accident benefits, must be suspended if:
(a) A physician or chiropractor determines that the employee is unable to undergo treatment, testing or examination for the industrial injury solely because of a condition or injury that did not arise out of and in the course of his employment; and
(b) It is within the ability of the employee to correct the nonindustrial condition or injury.
The compensation must be suspended until the injured employee is able to resume treatment, testing or examination for the industrial injury. The insurer may elect to pay for the treatment of the nonindustrial condition or injury.
Sec. 5. NRS 616C.355 is hereby amended to read as follows:
616C.355At any time 10 or more days before a scheduled hearing before an appeals officer, the administrator, the manager or the manager's designee, a party shall mail or deliver to the opposing party any affidavit or declaration which he proposes to introduce into evidence and notice to the effect that unless the opposing party, within 7 days after the mailing or delivery of such affidavit [,] or declaration, mails or delivers to the proponent a request to cross-examine the affiant [,] or declarant, his right to cross-examine the affiant or declarant is waived and the affidavit [,] or declaration, if introduced into evidence, will have the same effect as if the affiant or declarant had given sworn testimony before the appeals officer, the administrator, the manager or the manager's designee.
Sec. 6. This act becomes effective upon passage and approval.