(On Behalf of the Department of Motor Vehicles
and Public Safety)
June 10, 1997
____________
Referred to Committee on Judiciary
SUMMARY--Makes various changes concerning persons less than 21 years of age driving under the influence of intoxicating liquor or controlled substance. (BDR 43-590)
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 traffic laws; providing for the suspension of the driver's license or permit of a person less than 21 years of age who drives with a certain percentage by weight of alcohol in his blood; requiring an officer to make a reasonable attempt to notify the parent, guardian or custodian of a child less than 18 years of age who is directed to submit to an evidentiary test to determine whether he was driving under the influence of intoxicating liquor or a controlled substance under certain circumstances; 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 Chapter 483 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 6, inclusive, of this act.
Sec. 2 "0.02 percent or more but less than 0.10 percent by weight of alcohol in his blood" means a concentration of alcohol in the blood or breath of a person of 0.02 gram or more but less than 0.10 gram by weight of alcohol per 100 milliliters of his blood or per 210 liters of his breath.
Sec. 3 1. If the result of a test given pursuant to NRS 484.382 or 484.383 shows that a person less than 21 years of age had 0.02 percent or more but less than 0.10 percent by weight of alcohol in his blood at the time of the test, his license, permit or privilege to drive must be suspended for a period of 90 days.
2. If a revocation or suspension of a person's license, permit or privilege to drive for a violation of NRS 62.227, 484.379 or 484.3795 follows a suspension ordered pursuant to subsection 1, the department shall:
(a) Cancel the suspension ordered pursuant to subsection 1; and
(b) Give the person credit toward the period of revocation or suspension ordered pursuant to NRS 62.227, 484.379 or 484.3795, whichever is applicable, for any period during which the person's license, permit or privilege to drive was suspended pursuant to subsection 1.
3. This section does not preclude:
(a) The prosecution of a person for a violation of any other provision of law; or
(b) The suspension or revocation of a person's license, permit or privilege to drive pursuant to any other provision of law.
Sec. 4 1. A peace officer who has received the result of a test given pursuant to NRS 484.382 or 484.383 which indicates that a person less than 21 years of age to whom the test was given had 0.02 or more but less than 0.10 percent by weight of alcohol in his blood shall prepare a written certificate indicating whether the peace officer:
(a) Had reasonable grounds to believe that the person was driving under the influence of alcohol;
(b) Served an order of suspension on the person pursuant to subsection 2; and
(c) Issued the person a temporary license pursuant to subsection 2.
2. If a person less than 21 years of age to whom a test is given pursuant to NRS 484.382 or 484.383 is present when a peace officer receives the result of the test and the test indicates that the person has 0.02 or more but less than 0.10 percent by weight of alcohol in his blood, the peace officer shall:
(a) Serve an order of suspension of the license, permit or privilege;
(b) Seize any license or permit of the person;
(c) Advise the person of his right to:
(1) Administrative and judicial review of the suspension; and
(2) Have a temporary license;
(d) If the person requests a temporary license, issue the person a temporary license on a form approved by the department which becomes effective 24 hours after he receives the temporary license and expires 120 hours after it becomes effective; and
(e) Transmit to the department:
(1) Any license or permit seized pursuant to paragraph (b); and
(2) The written certificate which the peace officer is required to prepare pursuant to subsection 1.
3. If a person less than 21 years of age to whom a test is given pursuant to NRS 484.382 or 484.383 is not present when a peace officer receives the result of the test and the test indicates that the person has 0.02 or more but less than 0.10 percent by weight of alcohol in his blood, the peace officer shall transmit to the department a copy of the result of the test and the written certificate which the peace officer is required to prepare pursuant to subsection 1.
4. The department, upon receiving a copy of the result of the test and the written certificate transmitted by the peace officer pursuant to subsection 3, shall:
(a) Review the result of the test and the written certificate; and
(b) If the department determines that it is appropriate, issue an order to suspend the license, permit or privilege to drive of the person by mailing the order to the person at his last known address.
5. An order for suspension issued by the department pursuant to subsection 4 must:
(a) Explain the grounds for the suspension;
(b) Indicate the period of the suspension;
(c) Require the person to transmit to the department any license or permit held by the person; and
(d) Explain that the person has a right to administrative and judicial review of the suspension.
6. An order for suspension issued by the department pursuant to subsection 4 is presumed to have been received by the person 5 days after the order is deposited, postage prepaid, in the United States mail by the department. The date of mailing of the order may be shown by a certificate that is prepared by an officer or employee of the department specifying the date of mailing.
Sec. 5 1. At any time during which the license, permit or privilege to drive is suspended pursuant to section 4 of this act, the person may request in writing a hearing by the department to review the order of suspension. A person is entitled to only one administrative hearing pursuant to this section.
2. Unless the parties agree otherwise, the hearing must be conducted within 15 days after receipt of the request or as soon thereafter as is practicable in the county in which the requester resides.
3. The director or his agent may:
(a) Issue subpoenas for:
(1) The attendance of witnesses at the hearing; and
(2) The production of relevant books and papers; and
(b) Require a re-examination of the requester.
4. The scope of the hearing must be limited to the issues of whether the person, at the time of the test:
(a) Was less than 21 years of age; and
(b) Had 0.02 percent or more but less than 0.10 percent by weight of alcohol in his blood.
5. The department shall issue the person a temporary license for a period that is sufficient to complete the administrative hearing.
6. Upon an affirmative finding on the issues listed in subsection 4, the department shall affirm the order of suspension. Otherwise, the order of suspension must be rescinded.
7. If the order of suspension is affirmed by the department, the person is entitled to judicial review of the issues listed in subsection 4 in the manner provided in chapter 233B of NRS.
8. The court shall notify the department upon issuing a stay. Upon receiving such notice, the department shall issue an additional temporary license for a period that is sufficient to complete the judicial review.
9. The hearing officer or the court shall notify the department if the hearing officer grants a continuance of the administrative hearing or the court grants a continuance after issuing a stay of the suspension. Upon receiving such notice, the department shall cancel any temporary license granted pursuant to this section and notify the holder by mailing an order of cancellation to the last known address of the holder.
Sec. 6 After half the period during which the driver's license of a person is suspended pursuant to section 4 of this act, the department may issue the person a restricted driver's license in the manner provided in subsection 1 of NRS 483.490.
Sec. 7 NRS 483.020 is hereby amended to read as follows:
483.020As used in NRS 483.010 to 483.630, inclusive, and section 5 of [this act,] Senate Bill No. 355 of this session and sections 2 to 6, inclusive, of this act, unless the context otherwise requires, the words and terms defined in NRS 483.030 to 483.190, inclusive, and sections 2, 3 and 4 of [this act,] Senate Bill No. 355 of this session and section 2 of this act have the meanings ascribed to them in those sections.
Sec. 8 NRS 484.383 is hereby amended to read as follows:
484.3831. 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:
(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.
(b) The person may request a blood test, but if means are reasonably available to perform a breath test when the blood test is requested, and the person is subsequently convicted, he must pay for the cost of the 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 pursuant to this section and the officer has reasonable 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.
8. If a person who is less than 18 years of age is directed to submit to an evidentiary test pursuant to this section, the officer shall, before testing the person, make a reasonable attempt to notify the parent, guardian or custodian of the person, if known.
Sec. 9. NRS 62.170 is hereby amended to read as follows:
62.1701. Except as otherwise provided in NRS 62.175, any peace officer or probation officer may take into custody any child who is found violating any law or ordinance or whose conduct indicates that he is a child in need of supervision. [When] Except as otherwise provided in NRS 484.383, when a child is taken into custody, the officer shall immediately notify the parent, guardian or custodian of the child, if known, and the probation officer. Unless it is impracticable or inadvisable or has been otherwise ordered by the court, or is otherwise provided in this section, the child must be released to the custody of his parent or other responsible adult who has signed a written agreement to bring the child to the court at a stated time or at such time as the court may direct. The written agreement must be submitted to the court as soon as possible. If this person fails to produce the child as agreed or upon notice from the court, a writ may be issued for the attachment of the person or of the child requiring that the person or child, or both of them, be brought into the court at a time stated in the writ.
2. If the child is not released, as provided in subsection 1, the child must be taken without unnecessary delay to the court or to the place of detention designated by the court, and, as soon as possible thereafter, the fact of detention must be reported to the court. Pending further disposition of the case the child may be released to the custody of the parent or other person appointed by the court, or may be detained in such place as is designated by the court, subject to further order. The court may authorize supervised detention at the [child's] home of the child in lieu of detention at a facility for the detention of juveniles.
3. A child alleged to be delinquent or in need of supervision must not, before disposition of the case, be detained in a facility for the secure detention of juveniles unless there is probable cause to believe that:
(a) If the child is not detained, he is likely to commit an offense dangerous to himself or to the community, or likely to commit damage to property;
(b) The child will run away or be taken away so as to be unavailable for proceedings of the court or to its officers;
(c) The child was brought to the probation officer pursuant to a court order or warrant; or
(d) The child is a fugitive from another jurisdiction.
4. A child not alleged to be delinquent or in need of supervision must not at any time be confined or detained in a facility for the secure detention of juveniles or any police station, lockup, jail, prison or other facility in which adults are detained or confined.
5. A child under 18 years of age must not at any time be confined or detained in any police station, lockup, jail, prison or other facility where the child has regular contact with any adult convicted of a crime or under arrest and charged with a crime, unless:
(a) The child is alleged to be delinquent;
(b) An alternative facility is not available; and
(c) The child is separated by sight and sound from any adults who are confined or detained therein.
6. A child alleged to be delinquent who is taken into custody and detained must be given a detention hearing, conducted by the judge or master:
(a) Within 24 hours after the child submits a written application;
(b) In a county whose population is less than 100,000, within 24 hours after the commencement of detention at a police station, lockup, jail, prison or other facility in which adults are detained or confined;
(c) In a county whose population is 100,000 or more, within 6 hours after the commencement of detention at a police station, lockup, jail, prison or other facility in which adults are detained or confined; or
(d) Within 72 hours after the commencement of detention at a facility in which adults are not detained or confined,
whichever occurs first, excluding Saturdays, Sundays and holidays. A child must not be released after a detention hearing without the written consent of the judge or master.
7. If the parent, guardian or custodian of the child appears with or on behalf of the child at a detention hearing, the judge or master shall provide to him a certificate of attendance which he may provide to his employer. The certificate of attendance must set forth the date and time of appearance and the provisions of NRS 62.410. The certificate of attendance must not set forth the name of the child or the offense alleged.
8. A child who is taken into custody and detained must, if alleged to be a child in need of supervision, be released within 24 hours, excluding Saturdays, Sundays and holidays, after his initial contact with a peace officer to his parent, guardian or custodian, to any other person who is able to provide adequate care and supervision, or to shelter care, except as otherwise provided in subsection 9 or unless the court holds a detention hearing and determines the child:
(a) Has threatened to run away from home or from the shelter;
(b) Is accused of violent behavior at home; or
(c) Is accused of violating the terms of his supervision and consent decree.
If the court makes such a determination, the child may be detained for an additional 24 hours after the hearing, excluding Saturdays, Sundays and holidays, if needed by the court to make an alternative placement. Such an alternative placement must be in a facility in which there are no physically restraining devices or barriers. A child must not be detained pursuant to this subsection for a total period in excess of 48 hours, excluding Saturdays, Sundays and holidays.
9. A child alleged to be in need of supervision who is taken into custody and detained need not be released within 24 hours, excluding Saturdays, Sundays and holidays, after his initial contact with a peace officer to his parent, guardian or custodian, to any other person who is able to provide adequate care and supervision, or to a shelter for care, if the court holds a detention hearing and determines the child:
(a) Is a ward of a federal court or held pursuant to federal statute;
(b) Has run away from another state and a jurisdiction within the state has issued a want, warrant or request for the child; or
(c) Is accused of violating a valid court order.
If the court makes such a determination, the child may be detained for such an additional period as necessary for the court to return the child to the jurisdiction from which he originated or to make an alternative placement. Such an alternative placement must be in a facility in which there are no physically restraining devices or barriers.
10. During the pendency of a criminal or quasi-criminal charge of a crime excluded from the original jurisdiction of the court pursuant to NRS 62.040, a child may petition the juvenile division for temporary placement in a facility for the detention of juveniles.
11. In determining whether to release a child pursuant to this section to a person other than his parent, guardian or custodian, preference must be given to any person related within the third degree of consanguinity to the child who is suitable and able to provide proper care and guidance for the child.
Sec. 10. The amendatory provisions of this act do not apply to a test given pursuant to NRS 484.382 or 484.383 before October 1, 1997.
Sec. 11. Sections 7 and 8 of this act become effective at 12:01 a.m. on October 1, 1997.