Assembly Bill No. 362–Assemblymen Giunchigliani, Anderson and Conklin

 

March 17, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Revises provisions relating to driving or being in actual physical control of vehicle or operating or being in actual physical control of vessel while under influence of certain controlled substances. (BDR 43‑802)

 

FISCAL NOTE:  Effect on Local Government: Yes.

                           Effect on the State: Yes.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to traffic laws; revising provisions relating to driving or being in actual physical control of a vehicle while under the influence of certain controlled substances; revising provisions relating to operating or being in actual physical control of a vessel while under the influence of certain controlled substances; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. NRS 484.1245 is hereby amended to read as

1-2  follows:

1-3  484.1245  “Prohibited substance” means any of the following

1-4  substances if the person who uses the substance has not been issued

1-5  a valid prescription to use the substance and the substance is

1-6  classified in schedule I or II pursuant to NRS 453.166 or 453.176

1-7  when it is used:

1-8  1.  Amphetamine.

1-9  2.  Cocaine or cocaine metabolite.

1-10      3.  Heroin or heroin metabolite (morphine or 6-monoacetyl

1-11  morphine).

2-1  4.  Lysergic acid diethylamide.

2-2  5.  [Marijuana or marijuana metabolite.

2-3  6.] Methamphetamine.

2-4  [7.] 6. Phencyclidine.

2-5  Sec. 2.  NRS 484.379 is hereby amended to read as follows:

2-6  484.379  1.  It is unlawful for any person who:

2-7  (a) Is under the influence of intoxicating liquor;

2-8  (b) Has a concentration of alcohol of 0.10 or more in his blood

2-9  or breath; or

2-10      (c) Is found by measurement within 2 hours after driving or

2-11  being in actual physical control of a vehicle to have a concentration

2-12  of alcohol of 0.10 or more in his blood or breath,

2-13  to drive or be in actual physical control of a vehicle on a highway or

2-14  on premises to which the public has access.

2-15      2.  [It] Except as otherwise provided in subsection 4, it is

2-16  unlawful for any person who:

2-17      (a) Is under the influence of a controlled substance;

2-18      (b) Is under the combined influence of intoxicating liquor and a

2-19  controlled substance; or

2-20      (c) Inhales, ingests, applies or otherwise uses any chemical,

2-21  poison or organic solvent, or any compound or combination of any

2-22  of these, to a degree which renders him incapable of safely driving

2-23  or exercising actual physical control of a vehicle,

2-24  to drive or be in actual physical control of a vehicle on a highway or

2-25  on premises to which the public has access. The fact that any person

2-26  charged with a violation of this subsection is or has been entitled to

2-27  use that drug under the laws of this state is not a defense against any

2-28  charge of violating this subsection.

2-29      3.  It is unlawful for any person to drive or be in actual physical

2-30  control of a vehicle on a highway or on premises to which the public

2-31  has access with an amount of a prohibited substance in his blood or

2-32  urine that is equal to or greater than:

 

2-33  Prohibited substance    Urine              Blood

2-34                                   Nanograms       Nanograms

2-35                                  per milliliter     per milliliter

2-36  (a) Amphetamine          500                 100

2-37  (b) Cocaine                   150                    50

2-38  (c) Cocaine metabolite150                    50

2-39  (d) Heroin                  2,000                    50

2-40  (e) Heroin metabolite:

2-41                         (1) Morphine              2,000   50

2-42  (2) 6-monoacetyl morphine                   10   10

2-43  (f) Lysergic acid diethylamide                25   10

2-44  (g) [Marijuana                 10                      2

3-1  (h) Marijuana metabolite15                      5

3-2  (i)] Methamphetamine  500                 100

3-3  [(j)] (h) Phencyclidine     25                    10

 

3-4  4.  Except as otherwise provided in this subsection, it is

3-5  unlawful for any person to drive or be in actual physical control of

3-6  a vehicle on a highway or on premises to which the public has

3-7  access with an amount of delta-9-tetrahydrocannabinol in his

3-8  blood that is equal to or greater than 20 nanograms per milliliter.

3-9  For the purposes of determining whether a person has:

3-10      (a) Violated the provisions of this subsection; or

3-11      (b) Driven or been in actual physical control of a vehicle while

3-12  under the influence of marijuana, as prohibited by paragraphs (a)

3-13  and (b) of subsection 2,

3-14  the fact that a person has an amount of delta-9-

3-15  tetrahydrocannabinol in his blood that is equal to or greater than

3-16  20 nanograms per milliliter creates a rebuttable presumption of

3-17  guilt. The rebuttable presumption may be overcome only if the

3-18  person alleged to have committed the violation proves by a

3-19  preponderance of evidence that his ability to drive or physically

3-20  control the vehicle was not impaired.

3-21      5.  If consumption is proven by a preponderance of the

3-22  evidence, it is an affirmative defense under paragraph (c) of

3-23  subsection 1 that the defendant consumed a sufficient quantity of

3-24  alcohol after driving or being in actual physical control of the

3-25  vehicle, and before his blood or breath was tested, to cause him to

3-26  have a concentration of alcohol of 0.10 or more in his blood or

3-27  breath. A defendant who intends to offer this defense at a trial

3-28  or preliminary hearing must, not less than 14 days before the trial or

3-29  hearing or at such other time as the court may direct, file and serve

3-30  on the prosecuting attorney a written notice of that intent.

3-31      Sec. 3.  NRS 484.3795 is hereby amended to read as follows:

3-32      484.3795  1.  A person who:

3-33      (a) Is under the influence of intoxicating liquor;

3-34      (b) Has a concentration of alcohol of 0.10 or more in his blood

3-35  or breath;

3-36      (c) Is found by measurement within 2 hours after driving or

3-37  being in actual physical control of a vehicle to have a concentration

3-38  of alcohol of 0.10 or more in his blood or breath;

3-39      (d) [Is] Except as otherwise provided in paragraph (g), is under

3-40  the influence of a controlled substance or is under the combined

3-41  influence of intoxicating liquor and a controlled substance;

3-42      (e) Inhales, ingests, applies or otherwise uses any chemical,

3-43  poison or organic solvent, or any compound or combination of any

4-1  of these, to a degree which renders him incapable of safely driving

4-2  or exercising actual physical control of a vehicle; [or]

4-3  (f) Has a prohibited substance in his blood or urine in an amount

4-4  that is equal to or greater than the amount set forth in subsection 3

4-5  of NRS 484.379[,] ; or

4-6  (g) Has delta-9-tetrahydrocannabinol in his blood in an

4-7  amount that is equal to or greater than the amount set forth in

4-8  subsection 4 of NRS 484.379 and has not rebutted the

4-9  presumption described in that subsection,

4-10  and does any act or neglects any duty imposed by law while driving

4-11  or in actual physical control of any vehicle on or off the highways of

4-12  this state, if the act or neglect of duty proximately causes the death

4-13  of, or substantial bodily harm to, a person other than himself, is

4-14  guilty of a category B felony and shall be punished by imprisonment

4-15  in the state prison for a minimum term of not less than 2 years and a

4-16  maximum term of not more than 20 years and must be further

4-17  punished by a fine of not less than $2,000 nor more than $5,000. A

4-18  person so imprisoned must, insofar as practicable, be segregated

4-19  from offenders whose crimes were violent and, insofar as

4-20  practicable, be assigned to an institution or facility of minimum

4-21  security.

4-22      2.  A prosecuting attorney shall not dismiss a charge of

4-23  violating the provisions of subsection 1 in exchange for a plea of

4-24  guilty, guilty but mentally ill or nolo contendere to a lesser charge or

4-25  for any other reason unless he knows or it is obvious that the charge

4-26  is not supported by probable cause or cannot be proved at the time

4-27  of trial. A sentence imposed pursuant to subsection 1 may not be

4-28  suspended nor may probation be granted.

4-29      3.  If consumption is proven by a preponderance of the

4-30  evidence, it is an affirmative defense under paragraph (c) of

4-31  subsection 1 that the defendant consumed a sufficient quantity of

4-32  alcohol after driving or being in actual physical control of the

4-33  vehicle, and before his blood or breath was tested, to cause him to

4-34  have a concentration of alcohol of 0.10 or more in his blood or

4-35  breath. A defendant who intends to offer this defense at a trial

4-36  or preliminary hearing must, not less than 14 days before the trial or

4-37  hearing or at such other time as the court may direct, file and serve

4-38  on the prosecuting attorney a written notice of that intent.

4-39      4.  If the defendant was transporting a person who is less than

4-40  15 years of age in the motor vehicle at the time of the violation, the

4-41  court shall consider that fact as an aggravating factor in determining

4-42  the sentence of the defendant.

4-43      Sec. 4.  NRS 488.410 is hereby amended to read as follows:

4-44      488.410  1.  It is unlawful for any person who:

4-45      (a) Is under the influence of intoxicating liquor;

5-1  (b) Has a concentration of alcohol of 0.10 or more in his blood

5-2  or breath; or

5-3  (c) Is found by measurement within 2 hours after operating or

5-4  being in actual physical control of a vessel to have a concentration

5-5  of alcohol of 0.10 or more in his blood or breath,

5-6  to operate or be in actual physical control of a vessel under power or

5-7  sail on the waters of this state.

5-8  2.  [It] Except as otherwise provided in subsection 4, it is

5-9  unlawful for any person who:

5-10      (a) Is under the influence of a controlled substance;

5-11      (b) Is under the combined influence of intoxicating liquor and a

5-12  controlled substance; or

5-13      (c) Inhales, ingests, applies or otherwise uses any chemical,

5-14  poison or organic solvent, or any compound or combination of any

5-15  of these, to a degree which renders him incapable of safely

5-16  operating or exercising actual physical control of a vessel under

5-17  power or sail,

5-18  to operate or be in actual physical control of a vessel under power or

5-19  sail on the waters of this state.

5-20      3.  It is unlawful for any person to operate or be in actual

5-21  physical control of a vessel under power or sail on the waters of this

5-22  state with an amount of a prohibited substance in his blood or urine

5-23  that is equal to or greater than:

 

5-24  Prohibited substanceUrine              Blood

5-25                              Nanograms per      Nanograms per

5-26                                   milliliter         milliliter

5-27  (a) Amphetamine        500                 100

5-28  (b) Cocaine                 150                    50

5-29  (c) Cocaine metabolite150                  50

5-30  (d) Heroin                2,000                    50

5-31  (e) Heroin metabolite:

5-32                       (1) Morphine              2,000  50

5-33  (2) 6-monoacetyl morphine                 10  10

5-34  (f) Lysergic acid diethylamide             25  10

5-35  (g) [Marijuana              10                      2

5-36  (h) Marijuana metabolite15                   5

5-37  (i)] Methamphetamine500                 100

5-38  [(j)] (h) Phencyclidine25                    10

 

5-39      4.  Except as otherwise provided in this subsection, it is

5-40  unlawful for any person to operate or be in actual physical control

5-41  of a vessel under power or sail on the waters of this state with an

5-42  amount of delta-9-tetrahydrocannabinol in his blood that is equal

6-1  to or greater than 20 nanograms per milliliter. For the purposes of

6-2  determining whether a person has:

6-3  (a) Violated the provisions of this subsection; or

6-4  (b) Operated or been in actual physical control of a vessel

6-5  under power or sail while under the influence of marijuana, as

6-6  prohibited by paragraphs (a) and (b) of subsection 2,

6-7  the fact that a person has an amount of delta-9-

6-8  tetrahydrocannabinol in his blood that is equal to or greater than

6-9  20 nanograms per milliliter creates a rebuttable presumption of

6-10  guilt. The rebuttable presumption may be overcome only if the

6-11  person alleged to have committed the violation proves by a

6-12  preponderance of evidence that his ability to operate or physically

6-13  control the vessel was not impaired.

6-14      5.  If consumption is proven by a preponderance of the

6-15  evidence, it is an affirmative defense under paragraph (c) of

6-16  subsection 1 that the defendant consumed a sufficient quantity of

6-17  alcohol after operating or being in actual physical control of the

6-18  vessel, and before his blood was tested, to cause him to have a

6-19  concentration of 0.10 or more of alcohol in his blood or breath. A

6-20  defendant who intends to offer this defense at a trial or preliminary

6-21  hearing must, not less than 14 days before the trial or hearing or at

6-22  such other time as the court may direct, file and serve on the

6-23  prosecuting attorney a written notice of that intent.

6-24      Sec. 5.  NRS 488.420 is hereby amended to read as follows:

6-25      488.420  1.  A person who:

6-26      (a) Is under the influence of intoxicating liquor;

6-27      (b) Has a concentration of alcohol of 0.10 or more in his blood

6-28  or breath;

6-29      (c) Is found by measurement within 2 hours after operating or

6-30  being in actual physical control of a vessel under power or sail to

6-31  have a concentration of alcohol of 0.10 or more in his blood or

6-32  breath;

6-33      (d) [Is] Except as otherwise provided in paragraph (g), is under

6-34  the influence of a controlled substance or is under the combined

6-35  influence of intoxicating liquor and a controlled substance;

6-36      (e) Inhales, ingests, applies or otherwise uses any chemical,

6-37  poison or organic solvent, or any compound or combination of any

6-38  of these, to a degree which renders him incapable of safely

6-39  operating or being in actual physical control of a vessel under power

6-40  or sail; [or]

6-41      (f) Has a prohibited substance in his blood or urine in an amount

6-42  that is equal to or greater than the amount set forth in subsection 3

6-43  of NRS 488.410[,] ; or

6-44      (g) Has delta-9-tetrahydrocannabinol in his blood in an

6-45  amount that is equal to or greater than the amount set forth in

7-1  subsection 4 of NRS 488.410 and has not rebutted the

7-2  presumption described in that subsection,

7-3  and does any act or neglects any duty imposed by law while

7-4  operating or being in actual physical control of any vessel under

7-5  power or sail, if the act or neglect of duty proximately causes the

7-6  death of, or substantial bodily harm to, a person other than himself,

7-7  is guilty of a category B felony and shall be punished by

7-8  imprisonment in the state prison for a minimum term of not less

7-9  than 2 years and a maximum term of not more than 20 years and

7-10  shall be further punished by a fine of not less than $2,000 nor more

7-11  than $5,000. A person so imprisoned must, insofar as practicable, be

7-12  segregated from offenders whose crimes were violent and, insofar as

7-13  practicable, be assigned to an institution or facility of minimum

7-14  security.

7-15      2.  A prosecuting attorney shall not dismiss a charge of

7-16  violating the provisions of subsection 1 in exchange for a plea of

7-17  guilty, guilty but mentally ill or nolo contendere to a lesser charge or

7-18  for any other reason unless he knows or it is obvious that the charge

7-19  is not supported by probable cause or cannot be proved at the time

7-20  of trial. A sentence imposed pursuant to subsection 1 must not be

7-21  suspended, and probation must not be granted.

7-22      3.  If consumption is proven by a preponderance of the

7-23  evidence, it is an affirmative defense under paragraph (c) of

7-24  subsection 1 that the defendant consumed a sufficient quantity of

7-25  alcohol after operating or being in actual physical control of the

7-26  vessel under power or sail, and before his blood was tested, to cause

7-27  him to have a concentration of alcohol of 0.10 or more in his blood

7-28  or breath. A defendant who intends to offer this defense at a trial or

7-29  preliminary hearing must, not less than 14 days before the trial or

7-30  hearing or at such other time as the court may direct, file and serve

7-31  on the prosecuting attorney a written notice of that intent.

7-32      4.  If a person less than 15 years of age was in the vessel at the

7-33  time of the defendant’s violation, the court shall consider that fact as

7-34  an aggravating factor in determining the sentence of the defendant.

 

7-35  H