Assembly Bill No. 416-Assemblymen Manendo, Gustavson, Nolan, Segerblom, Chowning, Price, Krenzer, Mortenson, Lee, Lambert, Close, Parks, Hickey, Cegavske, Von Tobel and Williams
April 25, 1997
____________
Referred to Concurrent Committees on Judiciary
and Ways and Means
SUMMARY--Revises provisions relating to intoxicating liquor and controlled substances. (BDR 43-1078)
FISCAL NOTE: Effect on Local Government: Yes.
Effect on the State or on Industrial Insurance: Yes.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to substances causing impairment; revising the standard for determining when a person is operating a vehicle or vessel while under the influence of intoxicating liquor or a controlled substance; increasing the penalty for a conviction of driving under the influence of intoxicating liquor or a controlled substance; making various other changes concerning intoxicating liquor and controlled substances; expressly providing that intoxication at the time of incurring a gaming debt or loss is not a defense in an action for recovery of the debt or loss; 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 484.0135 is hereby amended to read as follows:
484.0135The phrase ["0.10] "0.08 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] 0.08 gram or more by weight of alcohol:
1. Per 100 milliliters of his blood; or
2. Per 210 liters of his breath.
Sec. 2. NRS 484.379 is hereby amended to read as follows:
484.3791. It is unlawful for [any] a person who:
(a) Is under the influence of intoxicating liquor;
(b) Has [0.10] 0.08 percent or more by weight of alcohol in his blood; or
(c) Is found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have [0.10] 0.08 percent or more by weight of alcohol in his blood,
to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access.
2. It is unlawful for [any] a person who is [an] a habitual user of or under the influence of [any] a controlled substance, or is under the combined influence of intoxicating liquor and a controlled substance, or [any] a person who inhales, ingests, applies or otherwise uses [any] a chemical, poison or organic solvent, or [any] a compound or combination of any of these, to a degree which renders him incapable of safely driving or exercising actual physical control of a vehicle to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access. The fact that [any] a person charged with a violation of this subsection is or has been entitled to use that drug under the laws of this state is not a defense against [any] a charge of violating this subsection.
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 driving or being in actual physical control of the vehicle, and before his blood was tested, to cause the alcohol in his blood to equal or exceed [0.10] 0.08 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.
Sec. 3. NRS 484.3792 is hereby amended to read as follows:
484.37921. A person who violates the provisions of NRS 484.379:
(a) For the first offense within 7 years, is guilty of a misdemeanor. Unless he is allowed to undergo treatment as provided in NRS 484.3794, the court shall:
(1) Except as otherwise provided in subsection 6, order him to pay tuition for an educational course on the abuse of alcohol and controlled substances approved by the department and complete the course within the time specified in the order, and the court shall notify the department if he fails to complete the course within the specified time;
(2) Unless the sentence is reduced pursuant to NRS 484.3794, sentence him to imprisonment for not less than 2 days nor more than 6 months in jail, or to perform 96 hours of work for the community while dressed in distinctive garb that identifies him as having violated the provisions of NRS 484.379; and
(3) Fine him not less than [$200] $500 nor more than $1,000.
(b) For a second offense within 7 years, is guilty of a misdemeanor. Unless the sentence is reduced pursuant to NRS 484.3794, the court:
(1) Shall sentence him to:
(I) Imprisonment for not less than 10 days nor more than 6 months in jail; or
(II) Residential confinement for not less than 10 days nor more than 6 months,
in the manner provided in NRS 4.376 to 4.3768, inclusive, or 5.0755 to 5.078, inclusive;
(2) Shall fine him not less than [$500] $750 nor more than $1,000;
(3) Shall order him to perform [not less than 100 hours, but not more than 200 hours,] 200 hours of work for the community while dressed in distinctive garb that identifies him as having violated the provisions of NRS 484.379 ; [, unless the court finds that extenuating circumstances exist;] and
(4) May order him to attend a program of treatment for the abuse of alcohol or drugs pursuant to the provisions of NRS 484.37945.
A person who willfully fails or refuses to complete successfully a term of residential confinement or a program of treatment ordered pursuant to this paragraph is guilty of a misdemeanor.
(c) For a third or subsequent offense within 7 years, 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 1 year and a maximum term of not more than 6 years, and must be further punished by a fine of not less than $2,000 nor more than $5,000. An offender 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. An offense that occurred within 7 years immediately preceding the date of the principal offense or after the principal offense constitutes a prior offense for the purposes of this section when evidenced by a conviction, without regard to the sequence of the offenses and convictions. The facts concerning a prior offense must be alleged in the complaint, indictment or information, must not be read to the jury or proved at trial but must be proved at the time of sentencing and, if the principal offense is alleged to be a felony, must also be shown at the preliminary examination or presented to the grand jury.
3. A person convicted of violating the provisions of NRS 484.379 must not be released on probation, and a sentence imposed for violating those provisions must not be suspended except, as provided in NRS 4.373, 5.055 and 484.3794, that portion of the sentence imposed that exceeds the mandatory minimum. A prosecuting attorney shall not dismiss a charge of violating the provisions of NRS 484.379 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.
4. A term of confinement imposed under the provisions of this section may be served intermittently at the discretion of the judge or justice of the peace, except that a person who is convicted of a second or subsequent offense within 7 years must be confined for at least one segment of not less than 48 consecutive hours. This discretion must be exercised after considering all the circumstances surrounding the offense, and the family and employment of the offender, but [any] a sentence of 30 days or less must be served within 6 months after the date of conviction or, if the offender was sentenced pursuant to NRS 484.3794 and the suspension of his sentence was revoked, within 6 months after the date of revocation. [Any time] Time for which the offender is confined must consist of not less than 24 consecutive hours.
5. Jail sentences simultaneously imposed under this section and NRS 483.560 or 485.330 must run consecutively.
6. If the person who violated the provisions of NRS 484.379 possesses a driver's license issued by a state other than Nevada and does not reside in Nevada, in carrying out the provisions of subparagraph (1) of paragraph (a) or (b) of subsection 1, the court shall:
(a) Order the person to pay tuition for and submit evidence of completion of an educational course on the abuse of alcohol and controlled substances approved by a governmental agency of the state of his residence within the time specified in the order; or
(b) Order him to complete an educational course by correspondence on the abuse of alcohol and controlled substances approved by the department within the time specified in the order,
and the court shall notify the department if the person fails to complete the assigned course within the specified time.
7. If the defendant was transporting a person who is less than 15 years of age in the motor vehicle at the time of the violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant.
8. As used in this section, unless the context otherwise requires, "offense" means a violation of NRS 484.379 or 484.3795 or homicide resulting from the driving of a vehicle while under the influence of intoxicating liquor or a controlled substance, or the violation of a law of any other jurisdiction that prohibits the same or similar conduct.
Sec. 4. NRS 484.3795is hereby amended to read as follows:
484.37951. A person who:
(a) Is under the influence of intoxicating liquor;
(b) Has [0.10] 0.08 percent or more by weight of alcohol in his blood;
(c) Is found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have [0.10] 0.08 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] a chemical, poison or organic solvent, or [any] a compound or combination of any of these, to a degree which renders him incapable of safely driving or exercising actual physical control of a vehicle,
and does [any] an act or neglects [any] a duty imposed by law while driving or in actual physical control of [any] a vehicle on or off the highways of this state, 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 must 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 [may] must not be suspended [nor may] , 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 driving or being in actual physical control of the vehicle, and before his blood was tested, to cause the alcohol in his blood to equal or exceed [0.10] 0.08 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 the defendant was transporting a person who is less than 15 years of age in the motor vehicle at the time of the violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant.
Sec. 5. NRS 484.384 is hereby amended to read as follows:
484.3841. If the result of a test given under NRS 484.382 or 484.383 shows that a person had [0.10] 0.08 percent or more by weight of alcohol in his blood at the time of the test, his license, permit or privilege to drive must be revoked as provided in NRS 484.385 and he is not eligible for a license, permit or privilege for a period of 90 days.
2. If a revocation of a person's license, permit or privilege to drive under NRS 62.227 or 483.460 follows a revocation under subsection 1 which was based on his having [0.10] 0.08 percent or more by weight of alcohol in his blood, the department shall cancel the revocation under that subsection and give the person credit for any period during which he was not eligible for a license, permit or privilege.
3. Periods of ineligibility for a license, permit or privilege to drive [which] that are imposed pursuant to this section must run consecutively.
Sec. 6. NRS 484.385 is hereby amended to read as follows:
484.3851. As agent for the department, the officer who obtained the result of a test given pursuant to NRS 484.382 or 484.383 shall immediately serve an order of revocation of the license, permit or privilege to drive on a person who has [0.10] 0.08 percent or more by weight of alcohol in his blood or has a detectable amount of a controlled substance in his system, if that person is present, and shall seize his license or permit to drive. The officer shall then advise him of his right to administrative and judicial review of the revocation and to have a temporary license, and shall issue him a temporary license on a form approved by the department if he requests one, which is effective for only 7 days including the date of issuance. The officer shall immediately transmit the person's license or permit to the department along with the written certificate required by subsection 2.
2. When a police officer has served an order of revocation of a driver's license, permit or privilege on a person pursuant to subsection 1, or later receives the result of an evidentiary test which indicates that a person, not then present, had [0.10] 0.08 percent or more by weight of alcohol in his blood or had a detectable amount of a controlled substance in his system, the officer shall immediately prepare and transmit to the department, together with the seized license or permit and a copy of the result of the test, a written certificate that he had reasonable grounds to believe that the person had been driving or in actual physical control of a vehicle with [0.10] 0.08 percent or more by weight of alcohol in his blood or with a detectable amount of a controlled substance in his system, as determined by a chemical test. The certificate must also indicate whether the officer served an order of revocation on the person and whether he issued the person a temporary license.
3. The department, upon receipt of [such] a certificate for which an order of revocation has not been served, after examining the certificate and copy of the result of the chemical test, if any, and finding that revocation is proper, shall issue an order revoking the person's license, permit or privilege to drive by mailing the order to the person at his last known address. The order must indicate the grounds for the revocation and the period during which the person is not eligible for a license, permit or privilege to drive and state that the person has a right to administrative and judicial review of the revocation and to have a temporary license. The order of revocation becomes effective 5 days after mailing.
4. Notice of an order of revocation and notice of the affirmation of a prior order of revocation or the cancellation of a temporary license provided in NRS 484.387 is sufficient if it is mailed to the person's last known address as shown by [any] an application for a license. The date of mailing may be proved by the certificate of [any] an officer or employee of the department, specifying the time of mailing the notice. The notice is presumed to have been received upon the expiration of 5 days after it is deposited, postage prepaid, in the United States mail.
5. As used in this section, "controlled substance" means any of the following substances for which a valid prescription has not been issued to the consumer:
(a) Amphetamine;
(b) Benzoylecgonine;
(c) Cocaine;
(d) Heroin;
(e) Lysergic acid diethylamide;
(f) Mecloqualone;
(g) Mescaline;
(h) Methamphetamine;
(i) Methaqualone;
(j) Monoacetylmorphine;
(k) Phencyclidine;
(l) N-ethylamphetamine;
(m) N, N-dimethylamphetamine;
(n) 2, 5-dimethoxyamphetamine;
(o) 3, 4-methylenedioxyamphetamine;
(p) 3, 4, 5-trimethoxyamphetamine;
(q) 4-bromo-2, 5-dimethoxyamphetamine;
(r) 4-methoxyamphetamine;
(s) 4-methyl-2, 5-dimethoxyamphetamine;
(t) 5-dimethoxy-alpha-methylphenethylamine; or
(u) 5-methoxy-3, 4-methylenedioxyamphetamine,
if the substance is classified in schedule I or II pursuant to NRS 453.166 or 453.176 at the time the substance is consumed.
Sec. 7. NRS 484.387 is hereby amended to read as follows:
484.3871. At any time while a person is not eligible for a license, permit or privilege to drive following an order of revocation issued pursuant to NRS 484.385, he may request in writing a hearing by the department to review the order of revocation, but he is only entitled to one hearing. The hearing must be conducted within 15 days after receipt of the request, or as soon thereafter as is practicable, in the county where the requester resides , unless the parties agree otherwise. The director or his agent may issue subpoenas for the attendance of witnesses and the production of relevant books and papers and may require a re-examination of the requester. The department shall issue an additional temporary license for a period [which] that is sufficient to complete the administrative review.
2. The scope of the hearing must be limited to the issue of whether the person, at the time of the test, had [0.10] 0.08 percent or more by weight of alcohol in his blood or a detectable amount of a controlled substance in his system. Upon an affirmative finding on this issue, the department shall affirm the order of revocation. Otherwise, the order of revocation must be rescinded.
3. If, after the hearing, the order of revocation is affirmed, the person whose license, privilege or permit has been revoked is entitled to a review of the same issues in district court in the same manner as provided by chapter 233B of NRS. The court shall notify the department upon the issuance of a stay , and the department shall issue an additional temporary license for a period [which] that is sufficient to complete the review.
4. If a hearing officer grants a continuance of a hearing at the request of the person whose license was revoked, or a court does so after issuing a stay of the revocation, the officer or court shall notify the department, and the department shall cancel the temporary license and notify the holder by mailing the order of cancellation to his last known address.
Sec. 8. NRS 484.791 is hereby amended to read as follows:
484.7911. [Any] A peace officer may, without a warrant, arrest a person if the officer has reasonable cause for believing that the person has committed any of the following offenses:
(a) Homicide by vehicle;
(b) Driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or with [0.10] 0.08 percent or more by weight of alcohol in his blood;
(c) Driving or being in actual physical control of a vehicle while under the influence of [any] a controlled substance, under the combined influence of intoxicating liquor and a controlled substance, or after ingesting, applying or otherwise using [any] a chemical, poison or organic solvent, or [any] a compound or combination of any of these, to a degree which renders the person incapable of safely driving or exercising actual physical control of a vehicle;
(d) Failure to stop, give information or render reasonable assistance in the event of an accident resulting in death or personal injuries, as prescribed in NRS 484.219 and 484.223;
(e) Failure to stop or give information in the event of an accident resulting in damage to a vehicle or to other property legally upon or adjacent to a highway, as prescribed in NRS 484.221 and 484.225;
(f) Reckless driving;
(g) Driving a motor vehicle on a highway or on premises to which the public has access at a time when his driver's license has been canceled, revoked or suspended; or
(h) Driving a motor vehicle in [any] a manner in violation of the restrictions imposed in a restricted license issued to him pursuant to NRS 483.490.
2. [Whenever any] If a person is arrested as authorized in this section , he must be taken without unnecessary delay before the proper magistrate as specified in NRS 484.803, except that in the case of either of the offenses designated in paragraphs (e) and (f) a peace officer has the same discretion as is provided in other cases in NRS 484.795.
Sec. 9. NRS 488.2055 is hereby amended to read as follows:
488.2055As used in NRS 488.206 and 488.207, the phrase ["0.10] "0.08 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] 0.08 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 488.206 is hereby amended to read as follows:
488.2061. It is unlawful for [any] a person who:
(a) Is under the influence of intoxicating liquor;
(b) Has [0.10] 0.08 percent or more by weight of alcohol in his blood; or
(c) Is found by measurement within 2 hours after operating or being in actual physical control of a vessel to have [0.10] 0.08 percent or more by weight of alcohol in his blood,
to operate or be in actual physical control of a vessel under power or sail on the waters of this state.
2. It is unlawful for [any] a person who:
(a) Is under the influence of [any] a controlled substance;
(b) Is under the combined influence of intoxicating liquor and a controlled substance; or
(c) Inhales, ingests, applies or otherwise uses [any] a 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 exercising actual physical control of a vessel under power or sail,
to operate or exercise actual physical control of a vessel under power or sail on the waters of this state.
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, and before his blood was tested, to cause the alcohol in his blood to equal or exceed [0.10] 0.08 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.
Sec. 11. NRS 488.207 is hereby amended to read as follows:
488.2071. To determine whether a person operating or exercising actual and physical control of a vessel under power or sail is under the influence of intoxicating liquor, the amount of alcohol in his blood or breath at the time of the test as shown by chemical analysis of his blood, breath or urine gives rise to the following presumptions:
(a) If there was at that time 0.05 percent or less by weight of alcohol in his blood, that at the time of the alleged violation the defendant was not under the influence of intoxicating liquor.
(b) If there was at that time [0.10] 0.08 percent or more by weight of alcohol in his blood, that at the time of the alleged violation he was under the influence of intoxicating liquor.
(c) If there was at that time more than 0.05 but less than [0.10] 0.08 percent by weight of alcohol in his blood, [no presumption may] a presumption must not be made, but this fact may be considered with other competent evidence in determining whether he was under the influence of intoxicating liquor.
2. The provisions of subsection 1 do not limit the introduction of [any] other competent evidence bearing upon the question of whether the person was under the influence of intoxicating liquor.
3. As used in this section:
(a) The phrase "0.05 percent or less by weight of alcohol in his blood" includes a concentration of alcohol in the blood or breath of a person of 0.05 gram or less by weight of alcohol:
(1) Per 100 milliliters of his blood; or
(2) Per 210 liters of his breath.
(b) The phrase "more than 0.05 but less than [0.10] 0.08 percent by weight of alcohol in his blood" includes a concentration of alcohol in the blood or breath of a person of more than 0.05 gram but less than [0.10] 0.08 gram by weight of alcohol:
(1) Per 100 milliliters of his blood; or
(2) Per 210 liters of his breath.
Sec. 12. Chapter 41 of NRS is hereby amended by adding thereto a new section to read as follows:
1. It is not a defense or a valid counterclaim in an action by a licensee to enforce a credit instrument or to collect the debt that the credit instrument represents that the person who incurred the debt was intoxicated at the time he incurred the debt.
2. A person who incurs a loss as a result of gambling may not recover in a civil action the loss he incurred on the grounds that the person was intoxicated at the time he incurred the loss.
3. As used in this section, "licensee" means a person to whom a valid gaming license or license for the operation of an off-track pari-mutuel system or license for dissemination of information concerning racing has been issued pursuant to the provisions of chapter 463 of NRS.
Sec. 13. 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.
Sec. 14. 1. The amendatory provisions of sections 1, 2 and 4 to 11, inclusive, of this act do not apply to offenses that are committed before October 1, 1997.
2. The amendatory provisions of section 3 of this act do not apply to offenses that are committed before 12:01 a.m. on October 1, 1997.
Sec. 15. 1. The amendatory provisions of section 12 of this act apply to any action filed on or after October 1, 1997.
2. Any action filed before October 1, 1997, is controlled by any applicable statutes in their prior form, any applicable common law and any applicable case law that construed the common law or the statutes in their prior form.
Sec. 16. Section 3 of this act becomes effective at 12:01 a.m. on October 1, 1997.