Senate Bill No. 433–Committee on Judiciary

 

(On Behalf of the District Attorney’s Association)

 

March 24, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Revises provisions governing admissibility of certain evidence. (BDR 4‑427)

 

FISCAL NOTE:    Effect on Local Government: No.

                             Effect on the State: No.

 

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

 

AN ACT relating to evidence; allowing certain witnesses to submit into evidence laboratory reports in lieu of personal testimony; expanding the purpose for which certain evidence is admissible; 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 50.310 is hereby amended to read as follows:

1-2  50.310  1.  The affidavit , report or declaration of a laboratory

1-3  director who has qualified in the district court of any county as an

1-4  expert witness to testify regarding the results of a test of a medical

1-5  laboratory is admissible in evidence in any civil, criminal or

1-6  administrative proceeding to prove:

1-7  (a) That the affiant , person who signed the report or declarant

1-8  is a laboratory director.

1-9  (b) The results of a test that the medical laboratory is licensed to

1-10  conduct and which is conducted by the medical laboratory of which

1-11  the affiant , person who signed the report or declarant is the

1-12  laboratory director.

1-13  The affidavit , report or declaration must contain the evidentiary

1-14  foundation upon which the results of the test are based, including

1-15  the description of the test, the personnel involved and the controls

2-1  employed in conducting the test. If the report is a single report

2-2  containing the combined reports of persons described in

2-3  subsections 1 to 5, inclusive, of NRS 50.315 or subsection 1 of

2-4  NRS 50.320, each report from such a person must be signed by

2-5  that person and the single report must be signed by the laboratory

2-6  director.

2-7  2.  As used in this section:

2-8  (a) “Laboratory director” has the meaning ascribed to it in

2-9  NRS 652.050.

2-10      (b) “Medical laboratory” has the meaning ascribed to it in

2-11  NRS 652.060.

2-12      Sec. 2.  NRS 50.315 is hereby amended to read as follows:

2-13      50.315  1.  Except as otherwise provided in subsections [6 and

2-14  7,] 7 and 8, the affidavit , report or declaration of a person who tests

2-15  another’s breath to determine the presence or concentration of

2-16  alcohol is admissible in evidence in any criminal or administrative

2-17  proceeding to prove[:

2-18      (a) That the affiant or declarant has been certified by the

2-19  Director of the Department of Public Safety as being competent to

2-20  operate devices of a type certified by the Committee on Testing for

2-21  Intoxication as accurate and reliable for testing a person’s breath to

2-22  determine the concentration of alcohol in his breath;

2-23      (b) The identity of a person from whom the affiant or declarant

2-24  obtained a sample of breath; and

2-25      (c) That the affiant or declarant tested the sample using a device

2-26  of a type so certified and that the device was functioning properly.]

2-27  any fact relevant to the testing of another’s breath to determine

2-28  the presence or concentration of alcohol.

2-29      2.  Except as otherwise provided in subsections [6 and 7,] 7 and

2-30  8, the affidavit , report or declaration of a person who prepared a

2-31  chemical solution or gas that has been used in calibrating a device

2-32  for testing another’s breath to determine the concentration of alcohol

2-33  in his breath is admissible in evidence in any criminal or

2-34  administrative proceeding to prove[:

2-35      (a) The occupation of the affiant or declarant; and

2-36      (b) That the solution or gas has the chemical composition

2-37  necessary for accurately calibrating it.] any fact relevant to the

2-38  preparation of the chemical solution or gas.

2-39      3.  Except as otherwise provided in subsections [6 and 7,] 7 and

2-40  8, the affidavit , report or declaration of a person who calibrates a

2-41  device for testing another’s breath to determine the concentration of

2-42  alcohol in his breath is admissible in evidence in any criminal or

2-43  administrative proceeding to prove[:

2-44      (a) The occupation of the affiant or declarant;

3-1  (b) That on a specified date the affiant or declarant calibrated the

3-2  device at a named law enforcement agency by using the procedures

3-3  and equipment prescribed in the regulations of the Committee on

3-4  Testing for Intoxication;

3-5  (c) That the calibration was performed within the period

3-6  required by the Committee’s regulations; and

3-7  (d) Upon completing the calibration of the device, it was

3-8  operating properly.] any fact relevant to the calibration of the

3-9  device.

3-10      4.  Except as otherwise provided in subsections [6 and 7,] 7 and

3-11  8, the affidavit , report or declaration made under the penalty of

3-12  perjury of a person who withdraws a sample of blood from another

3-13  for analysis by an expert as set forth in NRS 50.320 is admissible in

3-14  any criminal or administrative proceeding to prove[:

3-15      (a) The occupation of the affiant or declarant;

3-16      (b) The identity of the person from whom the affiant or

3-17  declarant withdrew the sample;

3-18      (c) The fact that the affiant or declarant kept the sample in his

3-19  sole custody or control and in substantially the same condition as

3-20  when he first obtained it until delivering it to another; and

3-21      (d) The identity of the person to whom the affiant or declarant

3-22  delivered it.] any fact relevant to the withdrawal of the sample of

3-23  blood.

3-24      5.  Except as otherwise provided in subsections [6 and 7,] 7 and

3-25  8, the affidavit , report or declaration of a person who receives from

3-26  another a sample of blood or urine or other tangible evidence that is

3-27  alleged to contain alcohol or a controlled substance, chemical,

3-28  poison, organic solvent or another prohibited substance may be

3-29  admitted in any criminal, civil or administrative proceeding to prove

3-30  [:

3-31      (a) The occupation of the affiant or declarant;

3-32      (b) The fact that the affiant or declarant received a sample or

3-33  other evidence from another person and kept it in his sole custody or

3-34  control in substantially the same condition as when he first received

3-35  it until delivering it to another; and

3-36      (c) The identity of the person to whom the affiant or declarant

3-37  delivered it.] any fact relevant to the receipt and delivery of the

3-38  sample of blood or urine or other tangible evidence.

3-39      6.  The report of any person described in subsections 1 to 5,

3-40  inclusive, may be signed by such a person and combined into a

3-41  single report containing the reports of other persons described in

3-42  subsections 1 to 5, inclusive, and except as otherwise provided in

3-43  subsections 7 and 8, such a single report is admissible in evidence

3-44  in any criminal, civil or administrative proceeding to prove any

4-1  fact relevant in the proceeding as provided in subsections 1 to 5,

4-2  inclusive.

4-3  7.  If, at or before the time of the trial, the defendant establishes

4-4  that:

4-5  (a) There is a substantial and bona fide dispute regarding the

4-6  facts in the affidavit , report or declaration; and

4-7  (b) It is in the best interests of justice that the witness

4-8  who signed the affidavit , report or declaration be cross-

4-9  examined,

4-10  the court may order the prosecution to produce the witness and may

4-11  continue the trial for any time the court deems reasonably necessary

4-12  to receive such testimony. The time within which a trial is required

4-13  is extended by the time of the continuance.

4-14      [7.] 8. During any trial in which the defendant has been

4-15  accused of committing a felony, the defendant may object in writing

4-16  to admitting into evidence an affidavit , report or declaration

4-17  described in this section. If the defendant makes such an objection,

4-18  the court shall not admit the affidavit , report or declaration into

4-19  evidence and the prosecution may cause the person to testify in

4-20  court to any information contained in the affidavit , report or

4-21  declaration.

4-22      [8.] 9. The Committee on Testing for Intoxication shall adopt

4-23  regulations prescribing the form of the affidavits , reports and

4-24  declarations described in this section.

4-25      Sec. 3.  NRS 50.320 is hereby amended to read as follows:

4-26      50.320  1.  The affidavit , report or declaration of a chemist

4-27  and any other person who has qualified in the district court of any

4-28  county to testify as an expert witness regarding the presence in the

4-29  breath, blood or urine of a person of alcohol, a controlled substance,

4-30  or a chemical, poison, organic solvent or another prohibited

4-31  substance, or the identity or quantity of a controlled substance

4-32  alleged to have been in the possession of a person, [which is]

4-33  submitted to prove:

4-34      (a) The quantity of the purported controlled substance; or

4-35      (b) The concentration of alcohol or the presence or absence of a

4-36  controlled substance, chemical, poison, organic solvent or another

4-37  prohibited substance, as the case may be,

4-38  is admissible in the manner provided in this section.

4-39      2.  The report of any person described in subsection 1 may be

4-40  signed by such a person and combined into a single report

4-41  containing the reports of other persons described in subsection 1,

4-42  and such a single report submitted to prove any fact set forth in

4-43  subsection 1 is admissible in the manner provided in this section.

4-44      3.  An affidavit , report or declaration [which is] submitted to

4-45  prove any fact set forth in subsection 1 must be admitted into

5-1  evidence when submitted during any administrative proceeding,

5-2  preliminary hearing or hearing before a grand jury. The court shall

5-3  not sustain any objection to the admission of such an affidavit ,

5-4  report or declaration.

5-5  [3.] 4. The defendant may object in writing to admitting into

5-6  evidence an affidavit , report or declaration submitted to prove any

5-7  fact set forth in subsection 1 during his trial. If the defendant makes

5-8  such an objection, the court shall not admit the affidavit , report or

5-9  declaration into evidence and the prosecution may cause the person

5-10  to testify in court to any information contained in the affidavit ,

5-11  report or declaration.

5-12      [4.] 5. The Committee on Testing for Intoxication shall adopt

5-13  regulations prescribing the form of the affidavits , reports and

5-14  declarations described in this section.

5-15      Sec. 4.  NRS 50.325 is hereby amended to read as follows:

5-16      50.325  1.  If a person is charged with an offense listed in

5-17  subsection 4, and it is necessary to prove:

5-18      (a) The existence of any alcohol;

5-19      (b) The quantity of a controlled substance; or

5-20      (c) The existence or identity of a controlled substance, chemical,

5-21  poison, organic solvent or another prohibited substance,

5-22  the prosecuting attorney may request that the affidavit , report or

5-23  declaration of an expert or other person described in NRS 50.315

5-24  and 50.320 , including a single report containing the combined

5-25  reports of such persons as provided in NRS 50.315 and 50.320, be

5-26  admitted into evidence at the trial or preliminary hearing concerning

5-27  the offense. Except as otherwise provided in NRS 50.315 and

5-28  50.320, the affidavit , report or declaration must be admitted into

5-29  evidence.

5-30      2.  If the request is to have the affidavit , report or declaration

5-31  admitted into evidence at a preliminary hearing or hearing before a

5-32  grand jury, the affidavit , report or declaration must be admitted into

5-33  evidence upon submission. If the request is to have the affidavit ,

5-34  report or declaration admitted into evidence at trial, the request must

5-35  be:

5-36      (a) Made at least 10 days before the date set for the trial;

5-37      (b) Sent to the defendant’s counsel and to the defendant, by

5-38  registered or certified mail by the prosecuting attorney; and

5-39      (c) Accompanied by a copy of the affidavit , report or

5-40  declaration and the name, address and telephone number of the

5-41  affiant , person or persons who signed the report or declarant.

5-42      3.  The provisions of this section do not prohibit either party

5-43  from producing any witness to offer testimony at trial.

5-44      4.  The provisions of this section apply to any of the following

5-45  offenses:

6-1  (a) An offense punishable pursuant to NRS 202.257, 445A.170,

6-2  445C.080, 493.130 or 639.283.

6-3  (b) An offense punishable pursuant to chapter 453, 484 or 488

6-4  of NRS.

6-5  (c) A homicide resulting from driving, operating or being in

6-6  actual physical control of a vehicle or a vessel under power or sail

6-7  while under the influence of intoxicating liquor or a controlled

6-8  substance or resulting from any other conduct prohibited by NRS

6-9  484.379, 484.3795, subsection 2 of NRS 488.400, NRS 488.410 or

6-10  488.420.

6-11      (d) Any other offense for which it is necessary to prove, as an

6-12  element of the offense:

6-13          (1) The existence of any alcohol;

6-14          (2) The quantity of a controlled substance; or

6-15          (3) The existence or identity of a controlled substance,

6-16  chemical, poison, organic solvent or another prohibited substance.

6-17      Sec. 5.  NRS 172.135 is hereby amended to read as follows:

6-18      172.135  1.  In the investigation of a charge, for the purpose of

6-19  either presentment or indictment, the grand jury can receive no other

6-20  evidence than such as is given by witnesses produced and sworn

6-21  before them or furnished by legal documentary evidence or by the

6-22  deposition of witnesses taken as provided in this title, except that the

6-23  grand jury may receive any of the following:

6-24      (a) An affidavit , report or declaration from an expert witness or

6-25  other person described in NRS 50.315 , including a single report

6-26  containing the combined reports of such persons as provided in

6-27  NRS 50.315, in lieu of his personal testimony or deposition.

6-28      (b) An affidavit of an owner, possessor or occupant of real or

6-29  personal property or other person described in NRS 172.137 in lieu

6-30  of his personal testimony or deposition.

6-31      2.  The grand jury can receive none but legal evidence, and the

6-32  best evidence in degree, to the exclusion of hearsay or secondary

6-33  evidence.

6-34      Sec. 6.  NRS 616C.230 is hereby amended to read as follows:

6-35      616C.230  1.  Compensation is not payable pursuant to the

6-36  provisions of chapters 616A to 616D, inclusive, or chapter 617 of

6-37  NRS for an injury:

6-38      (a) Caused by the employee’s willful intention to injure himself.

6-39      (b) Caused by the employee’s willful intention to injure another.

6-40      (c) Proximately caused by the employee’s intoxication. If the

6-41  employee was intoxicated at the time of his injury, intoxication must

6-42  be presumed to be a proximate cause unless rebutted by evidence to

6-43  the contrary.

6-44      (d) Proximately caused by the employee’s use of a controlled

6-45  substance. If the employee had any amount of a controlled substance

7-1  in his system at the time of his injury for which the employee did

7-2  not have a current and lawful prescription issued in his name or that

7-3  he was not using in accordance with the provisions of chapter 453A

7-4  of NRS, the controlled substance must be presumed to be a

7-5  proximate cause unless rebutted by evidence to the contrary.

7-6  2.  For the purposes of paragraphs (c) and (d) of subsection 1:

7-7  (a) The affidavit , report or declaration of an expert or other

7-8  person described in NRS 50.315 , including a single report

7-9  containing the combined reports of such persons as provided in

7-10  NRS 50.315, is admissible to prove the existence of any alcohol or

7-11  the existence, quantity or identity of a controlled substance in an

7-12  employee’s system. If the affidavit , report or declaration is to be so

7-13  used, it must be submitted in the manner prescribed in

7-14  NRS 616C.355.

7-15      (b) When an examination requested or ordered includes testing

7-16  for the use of alcohol or a controlled substance, the laboratory that

7-17  conducts the testing must be licensed pursuant to the provisions of

7-18  chapter 652 of NRS.

7-19      3.  No compensation is payable for the death, disability or

7-20  treatment of an employee if his death is caused by, or insofar as his

7-21  disability is aggravated, caused or continued by, an unreasonable

7-22  refusal or neglect to submit to or to follow any competent and

7-23  reasonable surgical treatment or medical aid.

7-24      4.  If any employee persists in an unsanitary or injurious

7-25  practice that imperils or retards his recovery, or refuses to submit to

7-26  such medical or surgical treatment as is necessary to promote his

7-27  recovery, his compensation may be reduced or suspended.

7-28      5.  An injured employee’s compensation, other than accident

7-29  benefits, must be suspended if:

7-30      (a) A physician or chiropractor determines that the employee is

7-31  unable to undergo treatment, testing or examination for the

7-32  industrial injury solely because of a condition or injury that did not

7-33  arise out of and in the course of his employment; and

7-34      (b) It is within the ability of the employee to correct the

7-35  nonindustrial condition or injury.

7-36  The compensation must be suspended until the injured employee is

7-37  able to resume treatment, testing or examination for the industrial

7-38  injury. The insurer may elect to pay for the treatment of the

7-39  nonindustrial condition or injury.

 

7-40  H