MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
March 7, 2003
The Committee on Judiciarywas called to order at 8:14 a.m., on Friday, March 7, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Ms. Genie Ohrenschall (excused)
GUEST LEGISLATORS PRESENT:
Senator Mark E. Amodei, Capital Senatorial District
Assemblyman Mark A. Manendo, District No. 18, Clark County
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Nancy Elder, Recording Committee Secretary
OTHERS PRESENT:
Jessica Bottoms, citizen, Carson City, Nevada
Greg Ferraro, representing the Nevada Resort Association
Laurel Stadler, Lyon County Chapter Director, Mothers Against Drunk Driving, Dayton, Nevada
Stan Olsen, Lieutenant, Government Liaison, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department; and representing the Nevada Sheriffs and Chiefs Association
Sandy Heverly, Executive Director and Co-founder, Stop DUI, Las Vegas, Nevada, Las Vegas, Nevada
Gary R. Booker, Chief Deputy District Attorney, Clark County District Attorney, Las Vegas, Nevada
Bruce W. Nelson, Deputy District Attorney, Vehicular Crimes Unit, Clark County District Attorney, Las Vegas, Nevada
Bonnie Parnell, Nevada Parent/Teachers Association (PTA)
Lisa A. Foster, Government and Public Affairs, AAA Nevada, Reno, Nevada
Charles Abbott, Chief and Highway Safety Coordinator, Office of Traffic Safety, Department of Public Safety, Carson City, Nevada
Paul Snodgrass, Impaired Driving Coordinator, National Highway Traffic Safety Administration (NHTSA), United States Department of Transportation, San Francisco, California
John Johansen, Highway Safety Representative, Nevada Office of Traffic Safety, Nevada Department of Public Safety, Carson City, Nevada
Jonathan Andrews, Special Assistant Attorney General, Office of the Attorney General, Carson City
Jeffrey Fontaine, P.E., Deputy Director, Nevada Department of Transportation, Carson City, Nevada
Jim Nadeau, representing Washoe County Sheriffs Office, Reno, Nevada
Peggy Haney, Stop DUI, Las Vegas, Nevada
Erin Breen, University of Nevada, Las Vegas, Safe Community Partnership, Transportation Research Center, Engineering College
George Ross, The McMullen Strategic Group on behalf of Miller Brewing Company, Las Vegas, Nevada
Jim Holmes, Chairman, Northern Nevada DUI Task Force, Reno, Nevada
Roger B. Whomes, Deputy District Attorney, Criminal Division, Washoe County District Attorney, and Northern Nevada DUI Task Force, Reno, Nevada
Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney and Nevada District Attorney Association, Reno, Nevada
Chairman Bernie Anderson:
Good morning, the Assembly Committee on Judiciary will please come to order. I would like to remind everyone that our meetings are broadcast on the Internet. Morning, Judge [Max W.] Bunch, [Argenta Township, Lander County, Sixth Judicial District] in Battle Mountain, [Nevada]. I understand that the Committee had a great time yesterday, since I was gone, and managed to get out of here and play hooky all morning long with the Vice Chairman [Oceguera] running through three bills in record time. I am a little suspicious when the Chair is gone and I find the Vice Chairman on the Floor by 9:30 a.m. [Roll called.] Ms. Ohrenschall should be excused.
Let me open the hearing on the first bill, Assembly Bill 7.
Assembly Bill 7: Reduces concentration of alcohol that may be present in blood or breath of person while operating vehicle or vessel. (BDR 43-17)
Let me indicate to those of you who are listening on the Internet, as I have already indicated to the people who are here, that it is the intention of the Chair to ostensibly try to take testimony on A.B. 7 and a similar piece of legislation, A.B. 104. I will treat both pieces of legislation as if they are one, thus cutting down on the amount of information that is necessary. However, I will have a separate gavel on A.B. 104 in case there is some particular piece of information that is there that needs to be emphasized yet again. So, if you are planning on speaking on A.B. 104, it is best to try to get into the first piece of legislation, since that is where we are going to be spending the majority of our time.
After the initial testimony of Assemblyman Manendo on his bill, I will be moving to the time clock trying to limit testimony to about five minutes. I would ask you if you hear information that is already been given, please do not repeat that information. On the other hand, at the discretion of the Chair, I can extend the time a little bit; I do not want to cut off anybody’s testimony. I do want to make sure that everybody that has information relative to the piece of legislation is heard and is on the record. With that, Mr. Manendo, let me open the hearing with your testimony on A.B. 7. This is the date you chose for this piece of legislation—the seventh time we have heard this bill, A.B. 7 on the 7th of March.
Assemblyman Mark A. Manendo, District No. 18, Clark County:
[Introduced himself.] Triple sevens, hopefully, it will bring us some good luck. It has been a long time coming. Mr. Chairman, I certainly appreciate you scheduling this bill, session after session, for myself and the folks that have been championing this cause. I see some folks in Las Vegas; I know there are a lot of people who want to go on record as you indicated in support of the A.B. 7. In fact, as soon as we get done with Floor Session, the [Assembly Committee on] Education is going on the road and will be in Las Vegas. We have hearings all evening on a Friday night; we are working hard in this 120-day session.
This is a bill [A.B. 7] that lowers the blood alcohol level (BAC) from 0.10 to 0.08. This is something that many folks have worked on over the years; we believe it is a life-saving measure. Make no mistake about it, when you are at 0.08 [BAC], you are impaired. I have gone through and have done drinking demonstrations at UMC [University Medical Center, affiliated with the University of Nevada School of Medicine, Las Vegas]. We were tested every hour and at 0.08 [BAC] we were not walking straight lines. That was about six drinks in a 2½-hour period in the morning on an empty stomach; I was not feeling too good later on. I would never have gotten behind the wheel of a vehicle and driven; I was impaired. That was just at the 0.08 [BAC] level. We have done this a few different times with different amounts of alcohol and at different times [of the day]; at 0.08 [BAC], you are impaired.
We believe this is a life-saving measure and there are a lot of victims that want to discuss some stories as well. I hope you give this piece of legislation consideration. When you hear the testimony you will have compelling evidence why we should enact the 0.08 [BAC] law here in the state of Nevada. Currently, 34 states, the District of Columbia, and Puerto Rico have passed this measure. I will yield the rest of my time; we have a young lady who works in this building, Ms. Bottoms, who would like to testify.
Chairman Anderson:
We are not changing the intent of the law in any way, we are merely changing the per se from 0.10 to 0.08 grams of alcohol per 100 milliliters of blood or per 210 liters of breath. We are not changing any other part of the statute, because the concentration of alcohol does not change for the purpose of this statute or the definitions in any other section of the law.
Jessica Bottoms, 18 years old, concerned citizen of Carson City
[Introduced herself and provided Exhibit C.] The reason I am here today is to testify in favor of A.B. 7 in hopes that it will pass this legislative session. Driving a vehicle with a blood alcohol content of 0.08 or higher is extremely dangerous. According to the National Highway Traffic Safety Administration (NHTSA), the blood alcohol content of 0.08 is the level at which the lethal crash risk drastically increases. At this point, almost everyone’s critical driving skills are seriously impaired, including steering, braking, lane changing, judgment, and response time. Please notice Chart 5. Consequently, the risk of a driver being killed in a collision at 0.08 BAC is at least 11 times that of a sober driver. At 0.10 BAC the risk escalates to about 20 times higher than for a sober driver. These risk estimates are significantly higher if the driver is inexperienced, especially if they are a male. Please notice Charts 1, 2, 3, and 4 (Exhibit C).
Furthermore, changing the DUI limit from 0.10 BAC to 0.08 BAC would save people’s lives. According to the NHTSA, more Americans have died in alcohol-related traffic crashes than in all the wars the United States has fought in since our country was founded. A 0.08 BAC limit would help the most in the prevention of many deaths. If every state passed a 0.08 BAC law, about 500 lives each year could be saved.
People who drive under the influence not only endanger themselves, but also the people around them. When a bad habit affects other people, it then becomes a problem for everyone. According to the NHTSA, as estimated 3 of every 10 Americans will take part in an alcohol-related traffic crash at some time in their lives. This means that if you, who like me are lucky enough not to have been involved or know anyone involved in an alcohol in an alcohol-related collision yet, chances are, that might change at some point. Thank you for taking the time to hear my testimony.
Chairman Anderson:
Since I see no questions and recognizing the key role that you play here in the building in your other capacities, I will excuse you from the table. I do not want to slow down the efficiencies of this place. While the other members may think that you are clearly a young individual, I have been informed by the Chief of Legislative Police, in no uncertain terms, that you are a key part of this place and we want to make sure that you are where you are supposed to be.
Greg Ferraro, representing the Nevada Resort Association:
[Introduced himself.] It is nice to be before your Judiciary Committee this morning. We are here to support Assemblyman Manendo’s A.B. 7. Consistent with the position that was adopted by our board late last session and reaffirmed recently, we strongly and unconditionally support lowering the blood alcohol content to 0.08. Furthermore, I would like to say that in an era of personal responsibility and from an industry that is committed to and built upon personal responsibility, we think this is the right legislation at the right time. I will be happy to answer any questions that you might have.
Chairman Anderson:
We recognize that the resort industry had indeed indicated previously this position and I think we are familiar with it.
Assemblyman Carpenter:
I was looking at the chart [in Exhibit C]; it says that a female, [weighing] 137 pounds, [after] 3 drinks, is at 0.08 [BAC]. Are you going to cut your patrons off when they have had three drinks?
Greg Ferraro:
There is an easy answer to that and one that might be a little more complicated; the short answer is yes. We stress training and emphasize the need to recognize when someone has reached a state of visible inebriation. It is difficult, however, to know how many drinks a person may have had before they got there. But clearly, attention is being paid to this area; we are very sensitive to the need for people to recognize when “enough is enough.”
Chairman Anderson:
Of course, that is a problem when you have multiple bars in a casino.
Assemblyman Manendo:
Last session, we had this bill, and there is another piece of legislation following this, A.B. 34, sponsored by my colleague [Mr. Conklin], which was A.B. 316 from the 71st Legislative Session. It is nice to have some help because carrying both of them was a difficult position to be in; I wish him well. The 0.08 [A.B. 7] is just one piece of the puzzle; A.B. 34 is another piece.
Assemblyman Carpenter:
[Referring to charts in Exhibit C], one of the charts came from MADD (Mothers Against Drunk Driving), and I have heard but do not know whether it is true, that the person who started MADD has changed their opinion on 0.08 [BAC] because she is afraid it would take too much of our resources away from the real problem drinkers. Do you have any information on that?
Chairman Anderson:
Mr. Manendo, you can certainly answer that if you like, but I would indicate to Mr. Carpenter that there is a representative from Mothers Against Drunk Driving (MADD) who will be testifying here directly. That question might be better directed toward them.
Assemblyman Manendo:
I know there are some representatives from that organization, but I do not speak for them nor would I.
Laurel Stadler, Lyon County Chapter Director, Mothers Against Drunk Driving:
[Introduced herself.] Assembly Bill 7 is one of the best opportunities this Legislature has to save lives. We have been endorsing this legislation since 1991, and the figures substantiate our continued support for 0.08 legislation. Research says that a national 0.08 level will save about 500 lives and a 2001 Centers for Disease Control and Prevention study showed a 7 percent decrease in alcohol-related motor vehicle fatalities in states that implemented a 0.08 [limit]. Somewhere between this 7 percent and the almost 50 percent reduction that California has achieved since 1990 is what we expect to realize in Nevada. [Assembly Bill 7], 0.08 legislation, serves as a general deterrent and effectively reduces crash data at all BAC levels. By passing 0.08, this Legislature will send a message to all Nevadans that impaired driving will not be tolerated.
We are aware of the great population growth in Nevada and that sometimes it is cited as a reason for our fatalities to go up and down. We also realize that in the United States the population has grown tremendously in the last 20 years. But because of the work of MADD, other groups, and the increased public awareness of the crime of DUI [driving under the influence] and a complement of DUI legislation enacted, the alcohol-related fatality rate nationally has decreased about 40 percent in those same 20 years.
I would like to point to an attachment to my handout (Exhibit D) that is very important to us to keep DUI and boating under influence at the same levels. Former Assemblyman, now Attorney General Brian Sandoval, worked very hard in the 1997 session to bring these two on an even keel. It just makes sense that if a person is out boating, he is obviously going to be driving home, and the threshold for both boating under the influence and driving under the influence should stay consistent. We are now over ten years into our mission to pass this life-saving legislation. We need to pass A.B. 7 now, so that we can start saving lives. We have lost over a decade and probably well over a hundred lives that we believe would have been saved if 0.08 had been implemented in the 1990s. Please remember that “time lost equals lives lost,” and please pass A.B. 7.
I would like to address Mr. Carpenter’s question. The founder of MADD, Candy Lightner, has not been officially involved with the organization since the mid-1980s and she certainly has the opportunity to voice her own personal feelings. The science and the experience across the country have shown that 0.08 [BAC] does reduce fatalities in the states where it is implemented. It serves as a general deterrent to all drunk driving at all levels.
Chairman Anderson:
The 100 lives that were lost, were they lost nationally or in the state of Nevada?
Laurel Stadler:
The 100 lives I mentioned would be the lives that we believed might have been saved if 0.08 would have been implemented in the early 1990s. We believe we will achieve … Here in Nevada.
Chairman Anderson:
And your basis for that is the number of fatalities where DUI was a factor in the accident and the person was driving under the influence?
Laurel Stadler:
Yes. Since we have approximately anywhere from 130 to 180 alcohol-related crash fatalities in our state each and every year, if we achieve somewhere between a 7 to 10 to 15 percent reduction in those, that would equate to those somewhere near 100 lives.
Chairman Anderson:
So these are not real numbers then?
Laurel Stadler:
Those are estimates based on other states’ experience with the legislation.
Chairman Anderson:
So these are not real number lives, fatalities, where the driver was under 0.10 [BAC]; it is a statistical approximation.
Laurel Stadler:
Exactly.
Assemblyman Horne:
Do we have any statistics that show numbers of injuries or fatalities by those who have tested at or hovered around 0.08 [BAC]? Is there hard data that showed that had this been in place we would see different results if we had a law like this?
Laurel Stadler:
I believe that the Office of Traffic Safety in Nevada and possibly NHTSA on a national level have the breakdown of fatalities at those particular BAC levels. But again, it is not particularly the 0.08 to 0.10 drivers that this law will deter; it has been shown that fatalities at all crash levels and at all BACs tend to be reduced when 0.08 is implemented in a state. It acts as a general deterrent to the drinking and driving population across all BACs.
Chairman Anderson:
We have the national experts here; we have people here from the [United States] Department of Transportation (USDOT) who will be giving testimony. Some of your statistical questions should be answered by those individuals. Not that Ms. Stadler does not know them forward and backwards, because she surely does. I do not think you could find a more knowledgeable person on this particular issue other than Mr. Snodgrass.
Laurel Stadler:
Could I just say that there are several other people from MADD in the audience who are here to support the legislation but will not be speaking on the bill?
Chairman Anderson:
Let me indicate then, for those who are members of MADD, if you would like to stand up so that we clearly understand that you have come down, given up your time, to show support for the legislation.
Stan Olsen, Lieutenant, Government Liaison, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department; and representing the Nevada Sheriffs and Chiefs Association:
[Introduced himself.] We support A.B. 7; we believe it will save lives.
Assemblyman Carpenter:
Where there is a fatality or injuries, do you automatically take a blood alcohol test?
Lt. Stan Olsen:
Yes, depending on the circumstances, but most often, yes. If I could address one other issue that Mr. Carpenter brought up earlier. In regards to the statement from the prior director of DUI advocate groups, we do not believe that passage of this law is going to have any impact on catching the most egregious ones at all. They are going to be obvious, we are going to capture them the same as we do now, and feel it will have no impact whatsoever.
Chairman Anderson:
Then moving the blood alcohol from 0.10 to 0.08 [BAC] is not going to change the methodology of the Las Vegas Metropolitan Police Department in terms of capture because the majority of your cases tend to be well over this [limit].
Lt. Stan Olsen:
That is correct.
Chairman Anderson:
You really do not know what the impact would be in the future, however. None of us can predict.
Sandy Heverly, Executive Director and Cofounder, Stop DUI:
[Introduced herself and provided a written statement (Exhibit E).] I am a director on the National Commission Against Drunk Driving. I am also a multiple DUI victim; I am the mother of four victims, the wife of a victim, the daughter of a victim, and a sister of a victim. I am very passionate when it comes to DUI‑related matters. I am here today to speak in support of A.B. 7.
First I would like to preface my statement by thanking Chairman Anderson for this hearing and Assemblyman Mark Manendo for once again introducing DUI legislation that will help save lives. Assemblyman Manendo has demonstrated a consistent and sincere commitment to this measure and we are deeply grateful for his efforts.
Many reasons exist that favor A.B. 7. As early as 1964, a study showed that drivers that had been drinking were more likely to be involved in a crash than sober drivers, and beginning with low BACs, the greater the level of intoxication, the higher the probability of being in a crash. Research also shows that virtually all drivers, even experienced drivers, are significantly impaired with regard to critical driving tasks at 0.08 [BAC]. As I have stated in the previous six legislative sessions and repeat again here today, the 0.08 [BAC] measure is not a magical cure to stop people from driving under the influence. As of this date, I am not aware of any single solution that would be legally acceptable. However, implementing 0.08 [legislation] will play a significant role in the comprehensive approach we have already undertaken.
The most extensive study, which analyzed the effects of 0.08 [BAC] over a 16‑year time period, found that the 0.08 BAC laws had a significant probability of an 8 percent reduction in fatal crashes involving drivers at both high and low BACs. However, if that estimate of 8 percent reduction was just 1 percent, it would soon become 100 percent if you or your loved one were the victim.
An NHTSA study provides what is perhaps what is the clearest laboratory evidence to date of the significant impairment that occurs in driving-related skills of all drivers with a 0.08 BAC regardless of age, gender, or drinking history. Another ten studies covering many of these states that have enacted 0.08 BAC laws have consistently shown that those measures are associated with reduction in alcohol-related fatalities. A good example is the state of Illinois that experienced at 13.7 percent decline in the number of drinking drivers involved in fatal crashes after lowering their blood alcohol standard. This reduction included drivers at both high and low BAC levels.
This is significant because critics of the law have often claimed that lowering the standard does nothing to affect high BAC drivers. It is also important to note there were no major problems reported by law enforcement or court systems due to the change in the law. An updated analysis of the Illinois data found that the 0.08 per se continues to save lives; it is estimated that the Illinois law has saved 105 lives in the first two full calendar years since its inception.
Lowering Nevada’s blood alcohol standard will not make criminals out of social drinkers; it will not close down casinos, restaurants, taverns, or liquor stores; nor will it have a negative effect on tourism. I do not know of anyone that bases his or her vacation destination on a blood alcohol standard. Lowering Nevada’s BAC standard from 0.15 to the current 0.10 more than 30 years ago is proof of the above. When considering DUI legislation, we must never forget that drunk driving is the most frequently committed crime in the nation today. These offenders murder and maim at random; they rob of us of our hopes, dreams, and futures. They rape our state of more than $1 million each year.
[Sandy Heverly continued.] As all of you know, our state’s federal highway funds are at risk if 0.08 [legislation] is not enacted, but Mr. Snodgrass is here and he will address that issue. This federal mandate has been characterized by some as blackmail and extortion. We see setting a national blood alcohol standard of 0.08 as a public safety issue designed to help save lives. I realize there may be some that will ignore the merits of A.B. 7, claiming state’s rights as an excuse to vote against it. But we believe that sometimes even the feds get it right, every now and then. They got it right when they intervened to abolish slavery, when they intervened to give women the right to vote, and to desegregate schools. We believe they have got it right again with regard to 0.08 [legislation].
Setting Nevada’s BAC standard to 0.08 is a reasonable and commonsense approach to helping reduce the senseless alcohol-related carnage in our state. It will also bring us in line with other states and industrialized nations that have had the foresight to recognize its life saving benefits. Nevada is virtually surrounded by states with 0.08 [BAC]. The list of support for this measure is lengthy. The most interesting and telling to join the ranks of support is the Century Council, which was founded in 1991 and funded by America’s leading distillers. And I am also very pleased to see the day that we have the support of the Nevada Resort Association.
With that I will close, and I want to thank you, Mr. Chairman, and all the Committee members, for giving me the opportunity to express our concerns regarding this. We hope that you will please vote yes on A.B. 7. I would also like to acknowledge Stop DUI advocates in Las Vegas.
Gary R. Booker, Chief Deputy District Attorney, Clark County District Attorney:
[Introduced himself.] My specific job is that I am in charge of the vehicle crimes unit; our unit does nothing but focus on crimes involving vehicles. Our big-ticket item, obviously, is driving under the influence, but we also do things like felony evading, reckless driving, and so forth. My comments will be very brief; Mr. Nelson is going to follow me and he will have a little bit more to say than I will. [The legislation setting the] 0.08 [BAC] is going to save lives.
When they passed it in California, their death rate went down by 12 percent. California is a state with millions of people in it; I wonder what 12 percent of the fatality rate was the year that they passed it. I wonder just how many people’s lives were saved by this. I would note that nationally that the fatality rate goes down about 8 percent; that has little to do with the actual 0.08 [BAC] number and a lot to do with the presence of the media, legislative support, judiciary, and people just getting the message that “you need to have one less drink.”
I would note that one of the big things about the 0.08, talking about impairment, is the stop reaction time, the time it takes to see a hazard, realize it, and move from the gas to the brake pedal. During the daytime, the stop reaction time runs about a second; it takes a second to get your foot off the gas and get it onto the brake. In nighttime, it goes up to about 1½ seconds. These times are for a person who is not impaired; double those times when a person is impaired. When they have alcohol in their system, their stop reaction times in the daylight, it takes two seconds to get off the gas and get onto the brake. At nighttime, it is almost four seconds. That does not sound like much, but let us assume you are going 75 miles an hour on an expressway, that is 110 feet per second. Well, by the time you see a hazard and the time it takes you to stop, your vehicle will go another 400 feet and you are going to hit or kill someone. This is unacceptable.
The 0.08 [legislation] will help address that. People are virtually all impaired at 0.08 [BAC]. The fact that some can pass field sobriety tests and others do not have to do with their alcohol tolerance and some genetic things that go into that, but they are impaired. If you tested them, gave them a horizontal gaze nystagmus test and you give them very specific testing, they are impaired at 0.08 [BAC] and frankly they were impaired at 0.06 [BAC].
Assemblywoman Buckley:
I support 0.08 [BAC], I have supported it before. I received an e-mail from a judge when I was speaking at a judge’s conference where I said, “If you ever have any thoughts on legislation, give me an e-mail.” So, I got one. Their question is with regard to [Section 6], paragraph 1C, on NRS 484.379, which is on page 4, lines 35 through 37. And here is what they say… I think they support 0.08 [BAC], but they say,
Should the Legislature consider changing this particular paragraph? This section makes a person automatically guilty if their BAC is 0.08 within two hours of driving. This may have made sense when the wall was 0.10 because it picked up the 0.08 and 0.09 driver with a rising blood alcohol. However, it does not make sense at the 0.08 level because it is picking up the 0.05, 0.06, and 0.07 driver with a rising BAC who in many cases could have been home and sleeping in bed before he or she reached the 0.08 level. The Nevada Supreme Court upheld this law by a split decision. I am advised that our surrounding states at 0.08 do not have an equivalent Section 1(c). These states make the prosecution prove that the BAC was 0.08 at time of driving.
Do you have any comments on that particular judge’s point of view?
Gary Booker:
I note that Mr. Nelson is particularly going to address that in his presentation.
Bruce W. Nelson, Deputy District Attorney, Vehicular Crimes Unit, Clark County District Attorney:
[Introduced himself.] Basically, His Honor is only partially correct. It is theoretically possible for a person to get to a 0.06 [BAC], drive, and then two hours later be at 0.08 [BAC]. But in order to do that, a couple conditions would have to be present that are not realistic:
The judge is also in error, because the Supreme Court focused on the very issue [whether] it is possible to get to a 0.08 BAC, drive, and then reach 0.10 after they have driven or after they have left the bar. The Supreme Court rejected that argument because they said is they do not want people to gamble on their alcohol levels when they are going home. Nobody knows when they leave the bar [whether] there might be an accident on the road, and so forth. So say you have someone who is playing the numbers game and they somehow know they are 0.07 [BAC] when they leave the bar, and they think they can make it home before they reach 0.10 [BAC]. The Supreme Court said they do not want that person gambling with everybody. Suppose the driver gets delayed on the way home or gets a flat tire. So, they rejected that argument with regard to the 0.10 [BAC] and I think they would reject it also with the 0.08 [BAC].
Also, although it was a split decision, there was one dissenting justice who did not dissent from the idea of 0.08 [BAC] or from the judge’s concern, so it was in essence a unanimous decision by the Supreme Court. So they have already addressed, at the Supreme Court level, the judge’s concerns and have found that those are not a concern with the 0.10 [BAC] and likewise they would not be a concern with the 0.08 [BAC].
Assemblywoman Buckley:
Do the surrounding states that have the 0.08 [BAC], have this provision too?
Bruce Nelson:
Yes, some of them do; I believe Arizona does. It has the 0.08 [BAC] and within three hours of driving; they have a stronger bill than we do. They have not experienced any problems with it.
Assemblyman Gustavson:
I have the same concerns; I have had people question me about this, too. You say Arizona is the only surrounding state that has a similar statute. How many other states nationwide have a similar statute?
Bruce Nelson:
I believe the correct figure, and unfortunately, I do not have it in front of me, is eight states that have some type of “within a certain period of time.” Most of them are three hours, a couple of them are four hours, and we are at the low end of the scale requiring within two hours.
Chairman Anderson:
Not wishing to cut off your testimony, I presume you have other information you want to give to the Committee.
Bruce Nelson:
There were some questions about where we came up with how many lives we are going to save and so forth. Let me give you a couple of quick statistics. It has been found that the 0.08 [BAC] nationwide would drop the rate of death for all DUIs anywhere from 0.07 to 0.16 [7 percent to 16 percent]. Some states have experienced an even higher decline. That is not 0.08 [BAC] by itself, obviously; that is 0.08 [BAC] with the other DUI laws in effect. Let me take the 7 percent figure and let me also say that approximately more than 300 lives were lost in Nevada every year to DUI; I will take a 300 figure because that is easier to work with. Seven percent of 300 is 21 people, that is 21 people every year that would be alive today if we had enacted the 0.08 [BAC] earlier. That is where the figure comes up for the number of lives that would be saved.
Also, a DUI costs the state of Nevada $1.1 billion last year. If we decrease that by 8 percent, we are saving approximately $5.2 million per year. That is an overall cost. A DUI injury in Nevada costs every person who is injured, approximately 6,600 people in 1999, $109,000 for either them or the state of Nevada. If we decrease that by 8 percent, we get back to the $5.2 million. The bottom line is, the last statistic I will give you, it has been estimated that if we go from 0.10 [BAC] to 0.08 [BAC], we will save every driver in the state of Nevada by themselves, whether they are ever involved in a DUI or not, approximately $50. That is $50 all of us can spend in the future when we pass the 0.08 [legislation], which will hopefully be this session.
Assemblyman Carpenter:
We heard that in most accidents, at least where there is an injury or a death, the blood alcohol level is taken. The way the law is written now, if you are under 21 [years of age] and you have 0.02 [BAC] to 0.10 [BAC], drivers license is supposed to be suspended for 90 days. How often does that take place?
Bruce Nelson:
That occurs when a minor’s blood is taken and they are found to be a minor and found to be 0.10 [BAC] and above. I cannot give you the exact statistics on minor drivers; I do not have those with me. Perhaps Mr. Snodgrass or someone else does. I should correct one thing. A blood alcohol level is only taken in an accident if a police officer at least legally has reasonable grounds to believe the person might be under the influence of drugs or alcohol. The police can and frankly should ask for people’s consent. They can always ask someone who they do not think is impaired, “Will you voluntarily take a test?” And if that person agrees, then their blood is drawn.
But legally, blood can only be drawn when the police have the reasonable suspicion that the person is under the influence of something or might be intoxicated. So, no, it is not drawn in every case because legally it cannot be. If the police ask for consent and the person refuses, and the police do not have grounds to draw the blood, they cannot legally draw that person’s blood.
Assemblyman Carpenter:
I think that is exactly my point, if at every accident the blood is drawn, and it is 0.08 [BAC] or whatever it is, we should have those exact statistics that would show whether we would have saved this many lives rather than all the hypothesis that we are going through.
Bruce Nelson:
I can tell you that the one study has shown that BACs between 0.08 and 0.09 were involved in 100 crashes in Nevada that killed 13 people and injured 200. That is just the 0.08 and 0.09 BACs. And this is from, I believe, the NHTSA “impaired driving in Nevada” letter that I have been reviewing. That number is available.
Assemblyman Conklin:
The 0.08 bill is not going to stop our most egregious offenders; those people from 0.08 [BAC] to 0.09 [BAC] might actually still be out there potentially. It is designed to be a deterrent, is that correct?
Bruce Nelson:
Yes, that is correct. The 0.08 and 0.09 [BACs] is not going to affect the prosecution of our most egregious offenders because we are still going to prosecute them. However, it will act as a general deterrent in that people will drink less and drive less. There was a question as to whether it will clog up the court system; the studies from Illinois and California said no. But I would also maintain it would actually reduce the number of DUIs in the court system because if fewer people drink and drive, fewer people get caught.
Chairman Anderson:
The next group of people I am going to presume merely want to get on the record. I will call you only for purposes of getting on the record. If you have a written document or statement…
Bonnie Parnell, Nevada Parent/Teachers Association (PTA)
[Introduced herself.] Just a quick note. Since 1998, the Nevada PTA has had a resolution supporting lowering the blood alcohol level to 0.08.
Lisa A. Foster, Government and Public Affairs, AAA Nevada:
[Introduced herself.] On behalf of our 300,000 members in the state, we support this legislation.
Charles Abbott, Chief and Highway Safety Coordinator, Office of Traffic Safety, Department of Public Safety:
[Introduced himself.] Rather than repeat testimony that has already been given I would like to refer you to the two people we have here today. Mr. Snodgrass is with the National Highway Traffic Safety Administration, Region 9, based in San Francisco, and we coordinate with him very closely on impaired driving issues. Mr. Johansen is the alcohol-impaired driving specialist/analyst within our office.
Chairman Anderson:
We should have started with the three of you after the primary witness and we would have gotten the technical side of how this is going to impact. Mr. Snodgrass will be next, if there are no questions for Mr. Abbott.
Paul Snodgrass, Impaired Driving Coordinator, National Highway Traffic Safety Administration (NHTSA), United States Department of Transportation:
I have been the Impaired Driving Coordinator in Region 9, the San Francisco office, since 1985. The NHTSA has spent a lot of time studying the 0.08 [BAC] issue, as you know. There is prepared testimony (Exhibit F) there, which is the official NHTSA testimony blessed by all our lawyers in Washington, but I am not going to try to read it, it is too lengthy.
To give you the key points, we project, as you have heard from others, a 6 to 9 percent reduction in alcohol-related fatalities based upon the experience in other states. We believe Nevada’s is a conservative estimate. You have heard about some other states like in Illinois, a 13 percent reduction; in California, a 12 percent reduction. A 6 to 9 percent reduction in alcohol-related deaths, fatalities, every year after the enactment of this law is a conservative estimate.
In Nevada in 2001, the NHTSA data shows there were 313 traffic fatalities; that is our latest year. You will hear some new 2002 data, but we do not have that analyzed yet. In 2001, of which 133 were alcohol-related, so 133 alcohol-related deaths in our latest year of data, a 6 to 9 percent reduction would mean 8 to 12 lives saved each year, every year. I think this jibes with some of the other people who have talked about 100 lives over the last ten years. In addition to the lives saved, we will have less injuries and less property damage, obviously also.
The NHTSA has studied the cost, what about the costs? We have an NHTSA study on the economic costs of motor vehicle crashes, which we use that shows the total societal costs of a traffic fatality in the United States averages $177,000, that was two years ago; updated for inflation, it is right about $1 million per traffic fatality total cost. So 8 to 12 fewer traffic fatalities per year would save Nevadans about $8 million to $12 million per year. How?
Is that all tax dollars? Some of it, some of it is insurance dollars. Some of it is via the lamppost; you know that is going to cost the city some money to replace. A whole lot of costs are involved: medical costs, police costs, court costs, and ambulance costs. But spread around, they are paid for by Nevadans one way or another, usually in their insurance or tax dollars. That is where I think you heard the guy talking about $50 less per Nevadan per year. Although these other people testify and use slightly different databases, it was really interesting to hear that we are all coming up in pretty much the same ballpark.
[Paul Snodgrass continued.] Alcohol incentive grants, what else would it mean to Nevada? In 1998, Congress passed a five-year bill, from 1998 to 2003; states were offered… the whole pot was $500 million dollars, quite significant for our program. It is divided amongst the states that passed 0.08 laws. It is incentive grants to get more traffic safety funds for drunk driving programs if you have a 0.08 law. This is the last year for those grants.
If your law was in effect by September 30, 2003, the Nevada Office of Traffic Safety could apply for and qualify for an incentive grant. The exact amount of money, we are not totally sure of; in previous years we estimated $900,000 per year, it is divided up amongst a number of states. This year $110 million is sitting there to be divided amongst all the states with 0.08 laws, which is currently 34. That number could go up to as high as 50 states this year. There are a dozen other states debating this law right now. So we do not know, $250,000 at least, but a significant amount for our drunk driving program. Even $250,000 buys a lot of intoxilizer machines, which cost about $6,000 each.
The cost to implement the 0.08 [BAC] comes up; in every state we have studied, we have not found any significant additional costs imposed by the 0.08 [BAC] law over and above those that already existing under the previous 0.10 [BAC] law for drunk driving enforcement.
The 0.08 [BAC] law in itself does not result automatically in a whole bunch more drivers being stopped. A police officer still has to have probable cause; he still has to observe the erratic driving. It does result in some of the borderline people that do get stopped and fail the field sobriety test, then get prosecuted and convicted, who would maybe not have previously been. But if you have the idea that all of a sudden going from 0.10 [BAC] to 0.08 [BAC], that 20 percent more drivers are going to be pulled over and stopped, it does not work that way. It is just another tool for law enforcement. It is calibrating the limit more precisely, but it is not that dramatic a change.
We do support publicized, high-visibility, drunk driving enforcement. We hope Nevada will aggressively implement and publicize the new law. That in fact is what the Nevada Office of Traffic Safety does with the federal grant funds. If you get additional funds, which you should from passing this law, that is what that would be used for.
Chairman Anderson:
The effective date of this particular piece of legislation is October 1, 2003. This has to be passed by September 30, 2003?
Paul Snodgrass:
That is exactly what happened to the state of Kentucky; they missed it by the “stroke of midnight.” The federal fiscal year ends on September 30. If your bill becomes effective on October 1, you would not only not get the incentive grant for federal fiscal year 2003, which ends at midnight September 30, but you would also become subject to the highway sanctions that kick in on the stroke of midnight on October 1, unfortunately.
Assemblyman Mortenson:
I thought I heard earlier that legally, blood could only be drawn if there is an accident, and yet I think I heard you say “probable cause,” at which a vehicle weaving along the road would be probable cause. Does there have to be an accident before blood is drawn?
Paul Snodgrass:
Well, you have misdemeanor DUI, which is erratic driving. You have felony DUI involving death, injury, and crash. The two situations are different. I wish I could call Nevada Highway Patrol to help me out here. You have to have probable cause to stop a car, and you have to have probable cause to draw blood. It is two different steps. Usually the probable cause in between stopping the car and drawing blood is the field sobriety test, the smell of alcohol.
Chairman Anderson:
That was the question raised by the district attorneys’ offices in their example, more possibly directed to the procedural question that Lt. Olsen and district attorney’s office might want to bring forward. This is not an area that Mr. Snodgrass would be into. Any further questions for Mr. Snodgrass?
John Johansen, Highway Safety Representative, Nevada Office of Traffic Safety, Nevada Department of Public Safety:
[Introduced himself.] My material is covered in the plastic-covered handout (Exhibit G), and I will try to give an overview of stats for Nevada and the 0.08 [BAC] legislation. When we first saw these bills, we submitted them to Washington, D.C., to see if in fact if passed they would conform. We did receive a fax back early this week:
“Based on this office’s review [the Assistant Chief Counsel for Traffic/Injury Control and General Law] after review of both bills, we have determined that if either bill were enacted without change, it would enable Nevada to meet all six of the Section 163 requirements.“
Therefore, our bill would be conforming and we would not fall into the trap that Rhode Island fell into, who did pass a 0.08 [law] but it was not a conforming law, so they still do not meet the criteria. So on page 2 of my handout (Exhibit G) are the six criteria to be met and they are currently in our law.
Page 3 is simply a map of the United States showing the states with and without 0.08 [laws], and there is also a listing of those states with date of enactment and the effective date. It is interesting in the facts we received from Washington, D.C., mention was made that to comply for 2004, the next federal fiscal year, laws must be enacted by July 15, 2003, and enforced by September 30, 2003. That is the one-day critical difference that Paul referred to.
The sanctions that the highway funds would experience happen to be on page 5. In the year 2000, Congress signed and the President enacted into law the 0.08 national standard. Starting in 2004, the sanctions against the states without 0.08 [law] would be 2 percent of the federal highway funds rising to 8 percent. Based on the estimate 2003 core funding for federal highway funds of $141 million, Nevada’s penalty for 2004 would be $2.8 million, rising to $11.3 million in the year 2007. In addition, the Office of Traffic Safety has lost over the last couple years approximately $1 million in grant funds each year because of the absence of a 0.08 law. This would have been money for alcohol programs. My $1 million estimate is simply based on a state similar to Nevada in population, vehicle miles traveled, that did have an 0.08 law; I picked on Nebraska, they got a little over $1 million in 2001. We should have been something similar.
As far as what has happened in Nevada, turn to page 6, where there is a chart showing traffic fatalities in Nevada since 1990 through the preliminary numbers of 2002. Red is alcohol-related, blue is non-alcohol-related. Quite frankly, we have made a lot of progress since 1990 when over half of the traffic fatalities were alcohol-related. Improvement has meant that now only one out of three fatalities is alcohol-related; still not very good, but certainly an improvement. The preliminary numbers for 2002 show that we have finally started back up. We had a period of time where we were actually decreasing the numbers, we may have some growth catching up with us, there may be lots of different factors, but we seemed to have reversed the downward trend.
[John Johansen continued.] Page 7, this may answer some of the questions that I heard earlier; there is a law on the books that if there is a fatal crash, blood alcohol tests must be given to all drivers involved. We do a fairly good job of testing; most states have a law similar to this. We test approximately 60 percent of our drivers. These numbers are for only drivers that tested positive. There is a fairly large number of untested drivers, it may be because it was too late, it may be because a driver survived and in the rush to get them to the hospital blood was not drawn at the crash scene, we may not be able to get the information from the hospital. There are many reasons for a “no test.” So these are for only drivers that were in fact tested and tested positive for alcohol.
What is important is the distribution of the BAC levels. It has not changed much over the years. The top graph is 1995 to 2001. [BAC levels of] 0.01 to 0.07 [total] 153, I am looking at the top chart for 1995 to 2001. [BAC levels of] 0.08 and 0.09, 15 and 16 respectively for a total of 31. [BAC levels of] 0.10 to 0.17 [total] 175. The real problem 0.18 plus [equals] 311. You can see the ratios there. It has not changed much; I included the figures for just 2001. [BAC levels of] 0.08 and 0.09, there are only 2 drivers. But look at the 0.18 plus, 37 drivers. [BAC level of] 0.08 has a tendency to send the message, “we are more serious about impaired driving,” and it does impact all levels of impaired driving.
Assemblyman Carpenter:
These monies that you were talking about that we [Nevada] could get if we had 0.08 [law], could those monies be used for treatment programs? What are we going to use them for?
John Johansen:
Alcohol programs in the Office of Traffic Safety are a huge variety. Examples are… I am sure that many of you are familiar with the “15 minutes program” run by the Henderson Police Department that teaches the juniors and seniors in high school by simulating an actual fatal crash to teach them the dangers of drinking and driving. It has helped Gary Booker, the office of the Courts in Clark County, on their serious offender treatment program. It has helped local law enforcement [and] Nevada Highway Patrol (NHP) conduct DUI checkpoints, saturation patrols. We have used alcohol money to fund safe graduation nights at high schools. So, it is a fairly broad category. And yes, specifically, we could have used it for treatment programs.
Assemblyman Carpenter:
My concern is that, and you brought it up, the people … 0.18 and things like that… How would this money be used to help them? It looks like that is where the big problem is.
John Johansen:
And some of the other laws that have been passed are helping us there. We have a law that was passed the last session where assessment and treatment is an option for the first-time DUI offender at a high BAC level. That is one of the programs that is operating in Clark County, where it is starting with the new moderate offender program, that we are helping them fund. Currently they are only treating essentially the felony DUI. We are moving it downward to begin treating the first- and/or second-time offender and try to prevent the repeat… Recidivism is a huge problem in the impaired driving population. And yes, that is one of the areas we are working on.
Assemblyman Carpenter:
Do you have any statistics? The 0.01 to 0.07 [BAC levels] looks like that is a much bigger problem than the 0.08 and 0.09 [BAC levels]. If we are going to try to really stop drunk driving, where do we really need to go?
John Johansen:
I think 0.08 [BAC] is a perfectly acceptable level and if I can go a few more pages in [my presentation] I can give some examples of why 0.08 [BAC] is probably the best level. Last May [2002], the Office of Traffic Safety helped sponsor a major seatbelt campaign. Because we are a secondary law state, all stops have to be made for some other primary offense. Since the monies we use were a combination of seatbelt and alcohol money, we asked the agencies that participated in this campaign to report to us numbers of citations written during this campaign. Seatbelts accounted for 32.45 percent of the citations, child safety seat violations accounted for 3.75 percent, and DUI accounted for 1.84 percent of the stops. We were conducting a seatbelt campaign and nearly 1 out of 50 citations was written for DUI. That is a very scary number if you are driving on our roads.
Chairman Anderson:
Mr. Carpenter, are you satisfied with the answer you received?
Assemblyman Carpenter:
I do not think he answered the question; I asked him if he had any statistics.
John Johansen:
I can get them; I do not have them with me. One more point, real quick. I did check with the instructor for the SFST course. The course they are currently teaching does meet the compliance for 0.08 determination, and that is already in the works, and so there is no need to change the SFST instruction that our law enforcement officers receive. They are ready to go.
Jonathan Andrews, Special Assistant Attorney General, Office of the Attorney General:
[Introduced himself.] I am here on behalf of Brian Sandoval, Attorney General. The Attorney General wants to express his support for A.B. 7 and A.B. 104. I have provided the Committee with a copy of his letter to you (Exhibit H) stating his support of those bills and would like that made part of the record.
Chairman Anderson:
We will make it part of the record.
Jeffrey Fontaine, P.E., Deputy Director, Nevada Department of Transportation (NDOT):
[Introduced himself and provided written testimony (Exhibit I).] I certainly appreciate this opportunity to testify in support of A.B. 7 and A.B. 104 before your Committee. We support the measures for two reasons. First and foremost, in the interest of public safety, if lowering the maximum blood alcohol concentration law for operating a motor vehicle from 0.10 to 0.08 would help save lives of Nevadans and visitors to the state, we need to do so. Based on the testimony I have heard this morning and the research I have been able to review, I believe it will save lives.
Second, in October 2000, as part of the DOT Appropriations Act for fiscal year 2001, the President signed into law a provision that made 0.08 BAC the national standard for impaired driving. As you have heard, states that do not adopt the 0.08 BAC law by fiscal year 2004 would have construction funds for highways withheld. I just want to tell you quickly what those numbers look like for Nevada:
That amounts to $28.4 million in lost highway funds over the next four years if this law is not enforced by September 30, 2003. These penalties would be even greater if Nevada receives, and we are hoping we will, an increase in federal funding under the next highway reauthorization act. I would emphasize again that these are mandatory sanctions; they are not permissive or discretionary. I have prepared written testimony that you have before you (Exhibit I) and also the applicable United State Code and supporting information from NHTSA. I should also mention that, as the handout indicates, these lost funds could in fact be recoverable but states would have four years after the funds were withheld to actually enact the law. However, after four years the funds are lost forever. Therefore, beginning in October 2007, states without the 0.08 law would have funds lapsed each year.
I would also note that both of these bills apply to people operating vessels. While this is certainly something to consider, federal sanctions do not apply to boats for operating boats at 0.08 [BAC] or above. A.B. 7, which was introduced by Assemblyman Manendo, and A.B. 104, which was proposed by NDOT, are identical bills, and of course you have heard that the lawyers for USDOT have indicated that both bills will comply with the laws. We claim no pride of ownership or authorship of the bill, and we believe that passage of either bill would be of great benefit to the residents of Nevada.
Chairman Anderson:
This is a difficult issue. I know that, while our relationship with the national government is not always… we like to do the responsible thing and pass the legislation without being hammered with the dollar. Having it tantalized in front of us is kind of an insult to us. That is the reason why I like Mr. Manendo’s bill more than your bill, but I agree that NDOT clearly is concerned about that which is in the best interest of our citizens in terms of trying to get roads to them and making sure that they are safe.
Jim Nadeau, representing Washoe County Sheriffs Office:
[Introduced himself.] I was not originally intending to testify, although I did sign in favor. I would like to address Mr. Mortenson’s question.
Chairman Anderson:
Mr. Mortenson raised the question that we managed to have a former traffic officer with a new civilian job.
Assemblyman Mortenson:
I think we had conflicting testimony, we heard that you could only be forced to yield blood or take a blood test if there is an accident. And someone else said that if you were driving erratically you could be forced to take a blood test. Which is true?
Jim Nadeau:
The process is this, and fortunately, the majority of DUI arrests are not accident-related. You have to have probable cause in order to make a traffic stop that there is some type of traffic violation that occurred. If during that traffic stop the officer sees signs or symptoms of some sort that indicate the driver may be intoxicated, then he can proceed on and then take a blood test or breath test associated with that arrest. In other words, the officer has probable cause for an arrest for DUI, and at that point then the suspect is compelled to give a breath test or give blood.
Assemblyman Mortenson:
Probable cause and not accident?
Jim Nadeau:
If it is an accident, again, you have to have probable cause that there is alcohol related to the accident.
Peggy Haney, Stop DUI:
I am a victim and my son, Tony, was murdered by drunk driver. I am in total support of A.B. 7 dropping the BAC to 0.08. Also, A.B. 104. I am a victim advocate and I am asking you to help us with this bill.
Erin Breen, University of Nevada, Las Vegas, Safe Community Partnership, Transportation Research Center, Engineering College:
[Introduced herself.] I do not have a lot to add to the testimony that you have already heard this morning, except we do want to go on record in support of both A.B. 7 and A.B. 104 and call to your attention all of the types of programs that we do run in Clark County trying to combat this problem of drunk driving. We firmly believe that lowering the BAC to 0.08 would help in all of our efforts to clean up our roads and make Las Vegas and Nevada a safer place for all of us to live.
Chairman Anderson:
Is there anyone in Clark County who feels that his or her testimony needs to be taken, that we need to get you on the record? I want to make sure that we leave the record open for you. This would be an opportunity for you to make a statement in front of the Committee. Please come forward at this time. [No response.] Then I will presume that we have heard from everyone in Clark County who wishes to speak directly on this particular piece of legislation.
We are about to close this bill. Is there a piece of information relative to the 0.08 question that somebody has to get on the record? Other people who have indicated support for the bill: Ms. Kami Dempsey from the City of Las Vegas, Russell and Coleen Herman from MADD, Fred Messmann from the Division of Wildlife, and Kristin Erickson from the Washoe County District Attorney and on behalf of the Nevada District Attorneys Association.
George Ross, The McMullen Strategic Group, representing the Miller Brewing Company:
We would like to be on record in support of 0.08 [BAC] and A.B. 7 and A.B. 104.
Chairman Anderson:
The only part of this question that I have, before we proceed, would be relative to whether we need to amend the date on the bill so that we make it effective July 1, 2003, with implementation by September 30, 2003. To me that would be a meaningful thing for some people. The second thing that we may want to look at is the question of whether the 0.08 [BAC] is a rebuttable presumption. That question is a policy question and has been raised at various times for the Committee and we have not done a great deal of research on it. The reason I would like to move this bill along, however, is because I would like to get it to the Assembly Committee on Ways and Means since it is a joint referral piece of legislation. The rebuttable presumption would, I think, clear up some of the ambiguities that Mr. Carpenter was pointing to relative to whether a person is there or not and how the blood draw is taking place.
Assemblywoman Buckley:
I have been struggling a little bit with it because I was trying to read how paragraph 4, on page 5, creates a rebuttable presumption, and I think what the answer might be is that it creates kind of a rebuttable presumption if the person actually consumed the alcohol after driving. And maybe it does not get to the rising blood alcohol level issue, but I guess where I am sitting right now, I prefer to change the date, move the bill, not address rebuttable presumption, and allow some additional research to be done. I think you are right; there may be enough concern about this issue to endanger the bill’s success. So I think we should do the research and be prepared. But I do not think that I could figure it out enough in my own head within five minutes.
Chairman Anderson:
I will close the hearing on A.B. 7. Just for the purpose of the record, I will open the hearing on A.B. 104.
Assembly Bill 104: Reduces concentration of alcohol that may be present in blood or breath of person while operating vehicle or vessel. (BDR 43-545)
Anybody feeling they have additional information that needs to be given to us on A.B. 104 that has not been provided? Close the hearing on A.B. 104. Now we have them in and out; they are both the same identical pieces of legislation for those of you who are listening and do not have the paperwork in front of you.
The Chair will entertain a motion on A.B. 7. The motion should be, in the Chair’s opinion, that we should do the amendatory language to make the bill effective July 1, 2003. I believe that will take care of everybody’s problem. I do not think we have to make a specific… Ms. Lang, do we have to make a specific note of the enforcement date, or would July 1, 2003, also be the enforcement date?
Risa Lang, Committee Counsel, Legal Division, Legislative Counsel Bureau:
I do not think you need to do that but in drafting if it comes up I will address it. I think July 1, 2003, will be fine.
Chairman Anderson:
So if we all have it done by July 1, 2003, that puts it all there and the NHP is going to be happy to do this July 1, 2003. Chair will entertain a motion:
ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND DO PASS A.B. 7, CHANGING THE EFFECTIVE DATE OF THE LAW TO JULY 1, 2003.
ASSEMBLYMAN HORNE SECONDED THE MOTION.
It would be 13 in the affirmative and 1 in the negative; the bill has passed.
Assemblyman Carpenter:
I am going to reluctantly vote against it because in my mind I just do not think it is going to get the effect. I hope that I do have to eat these words, but I am going to vote against it [A.B. 7].
Chairman Anderson:
I know your long-standing commitment to try to solve this problem. I know that you have worked really hard to try to craft something that we would have an easy time with. Anybody else feel they need to be on the record? This will be a roll call vote. [Roll call vote taken.]
THE MOTION CARRIED WITH ASSEMBLYMAN CARPENTER VOTING NO. (Ms. Ohrenschall was absent for the vote.)
Chairman Anderson:
I assume the chief sponsor of the bill would like to take care of the bill when it reaches the Floor, and would indicate I will take care of the amendment as it moves its way along towards [the Assembly Committee on] Ways and Means.
[Chairman Anderson called a recess and reconvened after 15 minutes.]
Recognizing that we have about 45 minutes to go, there were two pieces of information that came on the last piece of legislation that I want to make sure we enter into the record. The first was handed out during the break (Exhibit E) from Ms. Heverly from Stop DUI, and I have asked that to be distributed to members of the Committee and to be made part of the record for this legislative day relative to the bill. The other (Exhibit J) is from Jim Holmes who has long been an advocate of A.B. 7 and the 0.08 question. In courtesy of time, he chose not to come forward. I want to make sure that we put him specifically on the record relative to the support for A.B. 7 and to have his document entered in the record in support of that piece of legislation.
Let us open the hearing on A.B. 34.
Assembly Bill 34: Provides that once person has been convicted of felony for operating vehicle or vessel while under influence of alcohol or controlled substance, any subsequent violation is treated as felony. (BDR 43-137)
The Chairman will not give up the Chair on A.B. 34, but indicate that the primary sponsors are Assemblyman Marcus L. Conklin, Senator Mark E. Amodei, and myself [Assemblyman Bernie Anderson]. This is strong piece of legislation that we believe in pretty substantially and are hopeful that this critical element and the DUI legislation can be examined and we can work out some of the issues that have to be resolved with this piece of legislation. And with that, Mr. Conklin, let me call on you to support, and Senator Amodei to back up with his testimony.
Assemblyman Marcus L. Conklin, District No. 37, Clark County:
[Introduced himself.] I would like to take this opportunity to say thank you to Senator Amodei and Chairman Anderson for working with me on this most important legislation. Before reviewing the bill, I would like to take a minute to share with you why this legislation is so important. Yesterday, this Committee heard testimony that the number of DUI repeat offenders is down from 50 percent to 30 percent. That sounds like great progress; however, it is still not at a tolerable level. Why you may ask? Let me share some statistics:
These statistics are simply not acceptable. We must work harder to keep repeat offenders off our roadways where they are a danger to us, to our children, and to themselves. Current statute in Nevada provides for a person to be convicted of a felony DUI if they get a third DUI within seven years or commit substantial bodily harm or death on the roadways. Under this statute the following scenarios are possible:
I think these examples clearly identify the flaws within our current system as they relate to repeat offenders of DUI statutes. Assembly Bill 34 corrects these inadequacies.
Assembly Bill 34 has three primary purposes:
There are other parts of this bill that were not reviewed; those are the most important in my opinion. Mr. Chairman and members of this Committee, this bill a very important step in getting our most egregious repeat offenders of DUI law off our streets. I ask for your support. At this time I would like to turn the testimony over to Senator Amodei.
Senator Mark E. Amodei, Capital Senatorial District
[Introduced himself.] First of all, you may ask yourself when you look at page 1 of the bill, “what is [Senator] Amodei’s name doing on this bill?” Under the heading of “no good deed goes unpunished,” let me indicate that I had submitted a bill draft [request] in the interim dealing with this issue. After the elections, I got a call from the Legislative Counsel [Bureau] indicating that someone wanted to know whose bill draft it was and had called me for purposes of releasing that information. My response to the question was, “Why do they want to know?” The indication was that it was somebody in the “People’s House” who wanted to submit a similar measure. My response to that information was, “Well, heck, they can have the bill if they want to.” The moral of the story is, “Be careful what you ask for” right after you are elected because you might just get it. My congratulations to Assemblyman Conklin on bringing the bill forward in an aggressive and responsible manner.
I will not take up a bunch of the Committee’s time, but I will just say that the objective data available supports the addition of this measure as a deterrent and policy tool in dealing with those who visit the felony realm in a DUI context and keeping them in the proper context for the criminal justice system. I think that the response, if this measure is added to our laws, is measured in fair to those whom it is aimed at, and as a result of that, I would lend my support to it and request your favorable consideration. I stand for any questions.
Chairman Anderson:
I signed my name onto it [A.B. 34] for the opportunity to make sure that this particular piece of legislation did move forward. I appreciate Mr. Conklin’s willingness to allow it to begin in the “People’s House,” where I think all good legislation has an opportunity to be fairly heard.
Senator Amodei:
As a follow up to the “People’s House” thing, [I would like to] indicate we have had in our [Senate] Committee [on Judiciary] the pleasure of processing several of the bills that this Committee felt were important enough to get out early. The one about cemeteries and party lines, we only had to put one amendment on that to reflect that people do not just use coins in phones any more, which we were very thrilled to have found that since this Committee usually does not leave things like that undone. I suspect it will be the only time we get you this session, and I can assure you that some of the stuff we have sent your way will need a little extra attention in some areas also. The cemetery stuff, we were excited to do that. We had a great hearing on it, processed that immediately, came to the floor, was not rolled on the General File.
Also, the Vice Chair’s measure dealing with equipment donations to volunteer fire companies was one of the first Assembly Bills passed by the folks at the north end of the building. So thank you for your willingness to work with the Senate and allowing us to process some of your legislation.
Chairman Anderson:
I appreciate the Chairman of the Senate Committee on Judiciary, my twin on the other side, to have processed the legislation expeditiously. While it is always a pleasure to remove a piece of legislation, the fact that you found that we managed to allow telephone companies get away with only breaking the law for the last 20 years by using cards, is just amazing that we found something else. Clearly, Senator, if anybody could find a relic to bring back to life, it would be you.
I believe we had a Senate bill here yesterday, but my Vice Chair did not move it for some strange reason; it was a Supreme Court bill too. I was gone yesterday and they managed to move through three pieces of legislation in an hour. I wonder how that happened?
Senator Amodei:
That is interesting since I believe your Vice Chair is interested in becoming a member of the bar, to be messing with Supreme Court bills is a fairly risky thing to do. That is just my unofficial opinion.
Laurel Stadler:
[Introduced herself and submitted a written statement (Exhibit K).] How best can we address the chronic, high-BAC, repeat DUI offender? Popular approaches include vehicle forfeiture or impoundment, lower BAC thresholds, and interlock devices. We believe that A.B. 34 offers a unique approach to specifically address the public safety concerns that repeat offenders present.
In Nevada, after an offender reaches the felony DUI level, by being convicted of DUI for a third time within seven years, that offender has had every opportunity to change their behavior. They have been offered the “Notice of Election” treatment program, which we spoke about yesterday with Judges [Robey] Willis and [John] Tatro; they have had mandatory treatment in some cases, and other sanctions at the misdemeanor level. They have had the intensive phase one treatment program in the prison system with ongoing treatment as part of the 305 program, if they were eligible for that.
If DUI offenders do not respond to this combination of treatment, educational programs, and sanctions three times, we feel that our best and only option is further incarceration for subsequent convictions. To put an offender back out on the streets and highways, as a misdemeanor offender after four or more convictions, allows those offenders to laugh in the face of the law. Additionally, an offender who reaches felony status by virtue of a crash causing death or substantial bodily harm to another should never have the ability to revert to misdemeanor status as they do now.
The conjecture has been made, “What if after 20 or 30 years of no DUI convictions,” and note the key word of convictions. What if someone then gets another DUI? And also, it does not ensure that the felon has not been driving drunk or endangered himself or the community just because he has not been stopped in those many years. But what if that person falls off the wagon at a one-time event or a wedding reception, the felon’s consumption of alcohol does not put the person in jeopardy of being convicted under this statute. The felon must drink, then drive, then be apprehended, then be convicted before he is eligible to be under this particular law.
This is a lesson that he should have learned as a result of killing or injuring an innocent victim or by virtue of the three DUI convictions within a seven-year period, no matter how many years have elapsed since those events. Also, the threat of additional prison time should act as a deterrent if the prisons are doing their job. People should not want to go back to prison. As with every DUI law, we would much rather see the crime of DUI not committed than have to deal with penalties and sanctions when it is.
Since 1991 and the inception of the 305 residential confinement program for felony DUI offenders, not only have felony offenders been afforded the best possible inpatient, in prison, alcohol and substance abuse treatment program, but the state of Nevada has realized an approximate $10 million savings in hard bed incarceration costs because of the over 1,000 felony offenders who successfully completed the program when we average in the yearly cost of savings for them. Also, because this model 305 program served as the pattern of the subsequent 317 residential confinement program, even more state dollars and correction dollars have been saved.
Now it is time to directly address the chronic, repeat, high-BAC offender with the specific sanction of more prison time. Last session, Majority Leader, Assemblywoman Buckley was on record saying, “When a person committed a felony DUI, even as a kid, such an experience should be a wake-up call and that offender should never drink and drive again. Perhaps it is time to send such a message.” It was time two years ago, and it is time today, to take a stand against the repeat DUI offender. They need to know that once they achieve felony status in DUI, if they choose to commit DUI again, it will be treated, charged, and sentenced as a felony. Please pass this public safety legislation.
Chairman Anderson:
Just an observation, someone had mentioned to me that for murder, where we put you in prison, we were allowed to put you out on the [streets], after 20 years in certain cases. Has your group thought about a similar area here so that there would be a window where statutorily… They can appeal to have their records sealed, but have you thought about statutorily putting something like this in?
Laurel Stadler:
There is a statute that makes it available to seal records after “x” number of years that these felony DUI people would qualify for, and that would be addressed by another speaker in a moment. I wanted to add that on my handout there is letter from Judy Jacoboni, who many of you on the Committee remember from last session, that addresses this.
Chairman Anderson:
I am trying to keep it to just the questions I ask, and not to the information you want to give. So if you just answer the question, it makes it a little easier to get through it. It is part of the record and we will make the letter you just read to us a part of the record. The easiest way to get through this is if you are going to read to us, then there is no reason to bring copies to the Committee. Questions for Ms. Stadler relative to her testimony?
George Ross:
[Introduced himself.] Miller Brewing Company strongly supports this bill. Assemblyman Conklin and Ms. Stadler very eloquently have given the reasons; I will not repeat those. Miller supports this bill because it addresses the very real problems we have with drunken drivers on the roads today, which is the hard‑core, repeat offender with high BAC. This makes a very strong statement and hopefully will keep many more of them off the road and deter others.
Assemblyman Carpenter:
Some of these beer ads really upset me. It seems to me that unless you are drinking beer, you cannot have fun and you cannot get a girl. I would think that you guys would try to be a little more responsible in your advertising than you are now.
George Ross:
I will take that into account and repeat that back to my client.
Jim Holmes, Chairman, Northern Nevada DUI Task Force:
[Introduced himself and provided Exhibit L.) The task force is responsible for conducting the victim impact panels for Washoe County. These victim impact panels are required to be attended by DUI offenders. Currently, we are running at a rate of between 250 and 300 offenders per month, giving us a population of approximately 3,000 to 3,600 attendees per year. Law enforcement tells us that they are apprehending approximately 10 percent of the offenders. This could tell us that perhaps there are 30,000 a year out there in Washoe County, for those of you who live here in the north. That would represent approximately 10 percent of the Truckee Meadows population. Since I last was here, I and others like me, have spoken to over 5,000 of these DUI offenders; that was only two years ago. Since we started speaking, victims such as me, my wife, and others, have spoken to over 15,000 of these offenders in Washoe County.
For the record, the task force supports this bill. It is very much needed for the purposes and reasons that have been enumerated by Ms. Stadler. The one question that has come up is what happens to a person who has gotten three DUIs early in their life, have become a felon, and then maybe do not have another DUI for 20 or 30 years. So I went to my colleague Roger Whomes of the Washoe County District Attorney’s office and asked him about that issue. He will testify to that momentarily. But I want to share briefly with you as I conclude, something that I tell when I speak to these offenders at the victim impact panel, and that is, “a drunk driver is a lot like a terrorist: you don’t know who he is, you don’t know where he is, and I am here to tell you folks, you don’t know when he is going to strike again.” The one thing you can be sure of is, “he will strike again.” Remember, a license to drive is not a license to kill.
Roger B. Whomes, Deputy District Attorney, Criminal Division, Washoe County District Attorney, and the Northern Nevada DUI Task Force:
[Introduced himself.] I am here in support of the bill and to answer any technical questions as to the issue of whether or not this could ever be expunged or taken off somebody’s record. I think a memo has been provided to you (Exhibit L) that I prepared for Mr. Holmes.
Chairman Anderson:
Let me make as part of the record the letter from Mr. Holmes (Exhibit L) with the attachments that come from Judge [Larry G.] Sage, Sparks Municipal Court and from you, Mr. Whomes, from the District Attorney’s office, a memorandum relative to “once a felon, always a felon,” and the 20 years’ opportunity to have your record expunged. Are you knowledgeable about any state that has this kind of legislation?
Roger Whomes:
No, sir, I am not. I would just point out that it is actually 15 years on that expungment when you could move to have that done. No, I am not aware of any other state like this. I would point out that, in our opinion, this is very important. It does reward subsequent bad behavior to not have a law like this, and that is why we are in support of it.
Gary Booker:
[Introduced himself and provided Exhibit M.] I am here to testify in support of A.B. 34. I will not reiterate all the things that have been said; I will only make a couple points. This legislation at its worst point will only affect the worst of our recidivist drivers. These are people who have a first DUI with education, a second DUI with counseling, a third DUI with prison and counseling, and then they come out and commit a fourth or fifth DUI. Bottom line, they are not going to learn.
In Clark County we manage a program, the serious offenders program, where we work with the people who have these pending cases in the felony system. We make them plead to the felony and then we simply divert them as opposed to adjudicating them. What we have found is that this is a treatable offense. If we are zealous in the way that we use our legislation, we are zealous in our treatment of the offenders, and we are serious in the sense that we give them treatment with an attitude, we have proof positive that it works.
We have put 500 people through the program in the last five years, we have been doing it since 1998, we have had something on the order of about 175 people who have graduated from the program. We have only had two or three people reoffend. These are people that had numerous DUIs before, but at the same time it is a three-year long program, we really sit on them, we use breath interlocks, breath monitoring devices, house arrest, and we really make them tow the line, and it is a case‑managed system. We hope we will not see any of our people back in there again. Our cadre of offenders who we see, it is not a large number, but it is a very exclusive club in the sense that we can tell you who we think they are going to be. Typically they will be somebody that does wash out of our program.
We have an 82 percent passage rate, which means we have an 18 percent failure rate. So that 18 percent person is going to go to prison, he is going to get out, and the way the law currently stands, by the time he is out of prison on his third DUI, when he commits his fourth DUI, we’ll be back down to treating him like a DUI first offense misdemeanor or DUI second offense misdemeanor. Once again, we get back to rewarding negative behavior. If you think about it, when you have your child at home, if your child keeps committing the same offense, do you punish him more or do you punish him less? You try to educate that child, you try to nurture that child, and you try to get him treatment if he needs it. But at some point in time, the child has to know and the community around him has to be spared the agony of wondering whether this terrorist is going to hurt somebody else.
That is what this bill will permit and we hope that you will find the same way on it. It is a law that just makes sense, and it is time for this law, and it takes a big… We have certain things in law that do not make sense; this is one of the things that we can fix. Driving under the influence is a fixable offense. We may not be able to fix it 100 percent, but I bet we can get it down to 99 [percent].
Chairman Anderson:
We cannot keep bad guys from doing bad things.
Gary Booker:
Not all the time.
Assemblyman Horne:
A couple things concern me because of the increased penalty for repeat offenders. The provision on page 6 of the bill, line 36, “actual physical control of the vehicle,” could be loosely defined as someone sleeping in their car. If a guy leaves a bar, he knows he is drunk, and he crawls in the back seat and goes to sleep; there have been instances where they have still been convicted.
Gary Booker:
The “actual physical control” is generally put in there as a catch-all intended to get folks where, for example, we arrive at the scene, a vehicle is high-centered, we cannot find the driver around anywhere, we look around, there is nobody else but one guy sitting over here, the vehicle registered to him, and we know that he is under the influence of alcohol, and we know that he is either (a) going to get back into the vehicle and figure out a way to make it work, or (b) he drove the vehicle out there.
Now the instances you are talking about where people get in the back seat, frankly, most police, if you are under the influence of alcohol and you crawl into the back seat of your vehicle, you take the keys and put them in your pocket, and you are asleep back there, they will get summarily rejected, they will probably arrest them, but the charge will never be filed. The reason for the arrest, quite candidly, is the public safety matter, because if they leave that person out there they are going to drive that vehicle drunk. But in terms of him being convicted, he will not be convicted. Those are scenarios that we see quite a lot in Clark County, and we set those out when we see them. Most of the time, the police do not even send them to us because they already know.
There comes a point where if you are behind the wheel, you are slumped over the wheel, the keys are in the ignition, the hood is warm but the keys are off, were you in control of that vehicle? The answer is yes. Frankly, we find a lot of people who go through a drive-thru, they order their burger and then fall asleep behind the wheel with the engine running and the vehicle in park or the foot on the brake pedal. That person, if they are drunk, they are in actual physical control. That is what that part of the provision of the law was designed to get at. The Supreme Court has interpreted it and overinterpreted it, and there are about four or five cases, all found in [Nevada Reports] 105. Mr. Nelson is actually an expert on just that by the way.
Chairman Anderson:
This is similar language as in NRS 484.379; it mirrors another part of the statute, the current DUI language. It is not dramatically different in that regard.
Gary Booker:
I have a one-page fax sheet from the City of Las Vegas (Exhibit M) to put it into the record.
Assemblyman Horne:
I also had a concern about the aggravating factors, in particular, where a person 15 years of age is in the vehicle. Is that the victim’s vehicle or the driver’s vehicle?
Gary Booker:
That is when the defendant has children in the vehicle. That is designed to be an enhanceable offense or an enhancement in terms of punishment. That is something that the judge can determine later on in sentencing. Frankly, when we see that in Clark County, we charge it as a gross misdemeanor and it gets resolved most of the time. People do not actually get convicted of it that often. But we charge gross misdemeanor child endangerment to drive under the influence and have your children in the car with you.
Assemblyman Horne:
Do you think that the prohibition on plea bargaining will hamper you in any way or maybe cause a clog if you have no wiggle room?
Gary Booker:
No, I think it is… we are used to working with a prohibition on plea bargaining. We just continue to work around it. We work in association with our victim advocates and judges. We like having that prohibition in there in many respects. We do follow that prohibition, but like anything else you can work with it a little bit.
Bruce Nelson:
I would like to address a couple quick things that have not been raised yet. The question was asked whether any other states have similar bills. The answer is yes, but not quite what we are asking.
Frankly, all of those bills have strength, all of them have weakness; I think ours is a little better. Also, we already have habitual criminal statutes in Nevada. Right now, if you commit three petty larcenies during your lifetime you could theoretically be sentenced to 20 years in prison as a small habitual criminal. If you commit that same offense five times, you could receive life imprisonment. If you commit five DUIs, chances are your fifth DUI is going to be a misdemeanor, especially if you did jail time on the third offense, because the jail time is figured within the seven years.
Someone raised the remark about 30 years later. Suppose, as Assemblyman Conklin brought up, the person is convicted of a DUI felony for killing someone and goes to prison for 30 years. As soon as they get out of prison, they hit a bar. I talked to an offender who told me he waited 15 minutes after he got out of jail before he had his first drink. If they immediately go to the bar that very day and start driving again, they are back to misdemeanor first offense because the seven years have more than passed. The time they spent in prison is included within the seven years. So I do not think the 30-year scenario is going to arise too much, but if it is does and the person is concerned about it, as has been indicated, they can get their record sealed. Basically, that’s all I have to add, unless there are any questions.
Assemblyman Carpenter:
I think I was reading that the Supreme Court just upheld the “three strikes and you’re out.” That would tie in with this legislation, I would think.
Bruce Nelson:
Yes, they did uphold the life sentence for someone in California who had been convicted of a petty larceny, in fact. I do not believe we have a three-strikes law; we have our habitual criminal statute, but that is a little different than the three-strikes law. But in terms of the constitutionality of this, yes, obviously, it would be upheld.
Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney and Nevada District Attorney Association:
[Introduced herself.] I wanted to express our support for this bill; this is an excellent bill. I cannot tell you how many misdemeanor, second-time DUIs I have prosecuted where the prior conviction was a felony DUI.
Chairman Anderson:
Assemblyman Horne brings up an interesting proposal, one I quite frankly had not thought of because I am not real happy in thinking about district attorney discretion and judicial discretion. Is there a possibility with this particular statute that there is an advantage for the district attorney’s office and for the judges to have some level of judicial discretion, which is not afforded us in any of the other DUI laws?
Kristin Erickson:
If I understand your question correctly, the additional discretion it would provide would be the additional 2 to 15 years. A regular felony DUI exposes a person to 1 to 6 years, the habitual criminal statutes of which we have been speaking, for the smaller habitual criminal statute requires two felony convictions. If they are strictly DUIs, that is a lot of DUIs. The habitual criminal statute, which could expose a person to life in prison, requires three felony convictions.
Chairman Anderson:
I do not want to give judicial discretion; that is not what I am talking about. We are talking about one-two-three you go. Is there an advantage for these subsequent felonies if we give the district attorney’s office or the judges discretion in this area? Does it cut down on the criticism where somebody gets pulled over in a traffic stop, we have lowered it to the 0.08 [BAC] so he fits into the category, and now he is going to go off to prison? I hope we all recognize that someone is under the influence in reality that first time he takes a drink. I am trying to see if you see some advantage to the district attorney’s office and the judges. It is an opinion question and I will get to you gentlemen, I will not leave you out.
Kristin Erickson:
I am not sure that I am following your question. Is this due to the prohibition on plea bargaining? [Chairman Anderson confirmed.] I do not think the prohibition on plea bargaining really will not change the way we operate. In my opinion, the prohibition on plea bargaining is an excellent thing. It really assists the prosecution, it prevents the defense attorneys coming to us saying, “Hey, this guy has never been in trouble before, he is a stellar businessman in our community for 25 years, and he just screwed up. Can’t you cut him some slack?” And he blows a 2.2 on the breathalyzer.
I like the prohibition on prosecutorial discretion. We have to prosecute within a certain range and we do so. There are certain factors that we take into consideration such as the margin of error for the breath machine, for the blood alcohol level. So that is always taken into consideration along with factors such as the driving pattern.
Gary Booker:
The punishment range being up to the judge, because the judge is the one who does the sentencing, takes care of the concern or question that you referenced. It says that it will be not less than 2 [years] and not more than 15 [years in prison]. So if the judge were to sentence this person, and in the judge’s mind it was a minor consequence, he would give him the minimum sentence, which would be a 2 to 5 [years in prison]. At the other end of the spectrum, if he almost hit people or however you want to look at that, it could go, give or take, about 7 to 15 [years in prison].
Chairman Anderson:
Any further questions of the Committee. I hear the call to the Floor. If there is anybody else who needs to give a particular piece of information that needs to get on the record. This is the opportunity.
Lisa Foster:
Just wanted to go on record for AAA being in support of this bill.
Chairman Anderson:
Other people that I have in support: Mr. Olsen indicated support for the legislation, Ms. Heverly in support of legislation, Kami Dempsey from the City of Las Vegas, the Hermans are here, anybody else who feels they need to be heard? Anybody against? Let us close the hearing on A.B. 34.
I will entertain a motion on A.B. 34.
ASSEMBLYMAN CARPENTER MOVED TO DO PASS A.B. 34.
ASSEMBLYMAN CONKLIN SECONDED THE MOTION.
THE MOTION CARRIED. (Ms. Buckley and Ms. Ohrenschall were absent for the vote.)
I have been informed by the Speaker [Richard Perkins], as all chairs have been informed, that amendments will be a little late coming to the Floor for the next little while, so do not anticipate amended pieces of legislation moving to the Floor. They are going to do what they can; however, bill drafting would like to concentrate on your pieces of legislation so we have those out. We do not want to amend too many things; I will sign these and bring them to the Floor on Monday.
We are adjourned [at 10:56 a.m.] until 9 a.m. Monday.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Transcribing Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: