MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-Second Session

March 31, 2003

 

The Committee on Judiciarywas called to order at 8:19 a.m., on Monday, March 31, 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

Mr. David Brown

Ms. Barbara Buckley

Mr. John C. Carpenter

Mr. Jerry D. Claborn

Mr. Marcus Conklin

Mr. Jason Geddes

Mr. Don Gustavson

Mr. Garn Mabey

Mr. Harry Mortenson

Ms. Genie Ohrenschall

Mr. Rod Sherer

 

 

COMMITTEE MEMBERS ABSENT:

 

Mrs. Sharron Angle (excused)

Mr. William Horne (excused)

 

GUEST LEGISLATORS PRESENT:

 

Assemblywoman Chris Giunchigliani, District No. 9, Clark County

 

 

STAFF MEMBERS PRESENT:

 

Allison Combs, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Deborah Rengler, Committee Secretary

 

 

OTHERS PRESENT:

 

Stan Olsen, Lieutenant, Las Vegas Metropolitan Police Department, and representing the Nevada Sheriffs and Chiefs Association

Todd Raybuck, Narcotics Detective, Special Operations, Las Vegas Metropolitan Police Department

James Heird, Relative of victim

Elsa Heird, Relative of victim

Rosemary Flores, Director, BEST Coalition for a Safe and Drug-free Nevada

Dan R. Berkable, President/Forensic Chemist, Director of Toxicology, American Toxicology Institute, Inc.

Howard Brooks, Deputy Public Defender, Office of the Clark County Public Defender, and President, Nevada Attorneys for Criminal Justice:

Ben Blinn, citizen

Kristin Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney’s Office; and representing the Nevada District Attorney’s Association

Jim Nadeau, representing Washoe County Sheriff’s Office

William Anderson, Ph.D., Chief Toxicologist, Forensic Science Division, Washoe County Sheriff’s Office

Laurel Stadler, Lyon County Chapter Director, Mothers Against Drunk Driving

Bruce W. Nelson, Deputy District Attorney, Office of the Clark County District Attorney, Vehicular Crimes Unit

Gary R. Booker, Chief Deputy District Attorney, Office of the Clark County District Attorney, Vehicular Crimes Unit

Mustapha Hatab, Forensic Toxicology Supervisor, Quest Diagnostics Incorporated

Ray Kelly, Forensic Toxicologist

John Hiatt, Toxicology, Quest Diagnostics Incorporated

Gerard Mager, Relative of victim

Illona Mager, Relative of victim

Brittany Faber, Relative of victim

Angela Faber, Relative of victim

Gary Thompson, Relative of victim

Maggie Saunders, Traffic Safety, Pedestrian and Bicycle Safety, Safe Community Partnership

Carol Grant, Relative of victim

Dan Grant, Relative of victim

Erin Breen, Director, Safe Community Partnership

Elizabeth Neighbors, Ph.D., Director, Lakes Crossing Center, Division of Mental Health and Developmental Services, Nevada Department of Human Resources

Ed Irvin, Deputy Attorney General, Office of the Attorney General

Ben Graham, Legislative Representative, Nevada District Attorneys Association

James J. Jackson, Nevada Attorneys for Criminal Justice

Richard L. Siegel, Ph.D., Professor, Department of Political Science, University of Nevada, Reno; and President, American Civil Liberties Union of Nevada

Glen Whorton, Assistant Director, Operations, Northern Nevada, Nevada Department of Corrections

 

 

Chairman Anderson:

The Assembly Committee on Judiciary will please come to order.  [Roll called.]

 

There are eight members present; a quorum is present.  Mr. Gustavson and Ms. Angle are in the Assembly Committee on Government Affairs with a bill.  Mr. Conklin is in the Assembly Committee on Ways and Means.  They should be marked as present when they arrive.  Other members arriving late should be marked as present when they arrive. 

 

[The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.]

 

Finally, please note the sign on the [witness] table concerning the legality of misrepresenting facts before the Legislature. 

 

We are going to start with the Speaker’s bill, Assembly Bill 443, which is in part requested by the Committee on the recommendation of the Speaker.  We will then move to Assembly Bill 156.

 

Assembly Bill 443:  Provides additional penalty for selling or providing certain controlled substances in certain circumstances. (BDR 40-1281)

 

Lt. Stan Olsen, Lieutenant, Las Vegas Metropolitan Police Department (LVMPD), and representing the Nevada Sheriffs and Chiefs Association:

Assembly Bill 443 is designed to deal with individuals who have knowledge of a person who has ingested narcotics and do not take action to assist that person when that person is unconscious, which is a regular case in many communities.  Many years ago, more than a couple, when I worked narcotics, we did not have all these types of drugs that exist today.  The designer drugs that chemists can put together overnight change daily, and some are far more devastating than the drugs we dealt with many years ago.  With me today is Det. Todd Raybuck from LVMPD Narcotics Unit; he is the coordinator of the Demand Reduction Unit.  Also sitting with me is Mr. and Mrs. Heird, who have personally suffered a loss as the result of this type of action. 

 

Todd Raybuck, Narcotics Detective, Special Operations, Las Vegas Metropolitan Police Department:

Thank you for the opportunity to testify in regard to Assembly Bill 443 as a representative of the Las Vegas Metropolitan Police Department.  I am an 11‑year veteran of the LVMPD, assigned to the Narcotics Section for the last 4 years, and currently the Narcotics Demand Reduction Coordinator.  Demand Reduction is a fancy term for education and awareness in order to reduce the future demand of narcotics in our community and the communities throughout the state of Nevada.  Prior to becoming the Demand Reduction Coordinator, I worked in an undercover role for more than two years, investigating the sales and trafficking of drugs in the Las Vegas valley.  It is my experience, having intimate knowledge of today’s drug culture, that I share with you in my testimony today.

 

Today’s popular drugs include cocaine, methamphetamine, heroin, and a new breed of drugs dubbed “club drugs” such as ecstasy, ketamine, and GHB (gamma hydroxybutyric acid).  Ecstasy is a cross between a stimulant and a hallucinogen.  Its drug effects include increased heart rate and elevated body temperature.  In some cases, body temperatures have been noted as high as 104 to 108 degrees.  The dangers of overheating and dehydration are well known among users.  The short list of complications includes kidney failure, liver damage, heart attack, stroke, and death. 

 

Ketamine is a close chemical cousin to the drug PCP (phencyclidine).  Its users take near overdose amounts to feel, as they describe, “an out-of-body experience.”  The dangers of this drug include severe brain damage, respiratory failure, coma, and death.  Ketamine often is used in conjunction with other drugs, increasing the dangerous side effects.

 

[Det. Todd Raybuck continued.]  Gamma hydroxybutyric acid (GHB), commonly referred to as the “date rape drug,” has become a popular replacement in nightclubs for alcohol.  Like alcohol, it is a central nervous system depressant.  However, its users describe feeling a very strong sexual euphoria under its intoxicating effects.  As few as three teaspoons of GHB, or even a single teaspoon when mixed with alcohol, can cause a victim to overdose.  Victims fall into respiratory failure, coma, and serious risk of death.  In the past 12 months, LVMPD narcotics detectives have responded to area hospitals in Las Vegas valley on more than 100 suspected GHB overdoses. 

 

The frequency of overdose for these drugs have become so common that the danger of serious life-threatening side effects is often ignored and in some cases deliberately overlooked.

 

I’d like to tell you about a popular Las Vegas nightclub where drug use was so prevalent that overdose was a common occurrence.  Employees set up gurneys in the kitchen area to treat victims in-house rather than call for emergency personnel in order to avoid the risk of bad publicity or police scrutiny.

 

Another club had its security carry overdose victims to waiting limousines hired to take those victims to a nearby hospital.  Oftentimes the drivers would just drag the victims into the emergency room and dump them there without advising medical personnel of their condition.

 

One incident, at yet another nightclub in Las Vegas, happened when bouncers carried a male who had overdosed on GHB out to the parking lot, put him in a car, and instructed the girlfriend to take him to the hospital because he was suffering from an overdose.  However, before she left, they changed their minds, said he would be OK, to go ahead and take him home.  So, she followed this advice.  But on the way home, he began to stop breathing and to convulse.  Fortunately for him, they were near a hospital and his life was saved.

 

That wasn’t the case for a 35-year-old tourist to Las Vegas who came to town to celebrate the opening of his new dental practice.  He was convinced by friends the night he was partying that he should try ecstasy.  After he fell sick, some of his friends saw that he was sick, and they took him back to his hotel room.  They did not call for help, fearing they would jeopardize his career.  Instead, they put his life in jeopardy; that night, he died.

 

[Det. Todd Raybuck continued.]  These are only a few examples of an all-too-common occurrence in nightclubs throughout our communities in the state of Nevada.  Those who choose to engage in the use of illegal drugs assume the consequences of their decisions.  However, at such time that those consequences render a person unable to care for himself, others must be compelled to do so to prevent substantial bodily harm or death.  For those persons who refuse to seek help, Assembly Bill 443 is needed.

 

As citizens, parents, law enforcement, and lawmakers, we must do everything we can to prevent the tragedy of more parents burying their children.  One such tragedy involved the Heird family.  Mr. and Mrs. Heird are here today representing their daughter Danielle, who died after a night of supposedly partying and celebrating.  In the words of my friend Jim Heird, “It’s not the scheme of things to bury a child.”

 

James Heird, Relative of victim:

You heard Det. Todd Raybuck cite many cases; I am going to talk about one.  On July 20, 2000, Danielle went out with some friends to celebrate a birthday.  These friends gave Danielle what we know to be one or two ecstasy pills.  Sometime shortly after, she told these people she was not feeling well.  It was reported she was having trouble walking; one minute she was fine, the next minute she wasn’t.  They took Danielle back to their house, laid her down on a bed, and they went out to continue partying.  Sometime the next morning, they came home and found Danielle dead.  The police and the coroner were called, and her autopsy was performed. 

 

It took one month for us to obtain her toxicology report, which said that Danielle died from 538 nanograms (ng) per kiloliter of ecstasy.  This was a drug that we had never heard the name of; we educated ourselves, we talked to the police, the coroner, and to doctors.  We knew everything there was about a new phenomenon called “club drugs.”  These drugs included GHB and ketamine.  After we had done this search, we looked for a way to bring people forward to assist a person who is in distress, when a person knew they were sick.  We went from state to state looking up their Good Samaritan bills, noting which states had a bill and which states didn’t. 

 

In the beginning, we were willing to forgive almost anything, if a person got another person help.  What evolved out of that thinking was Assembly Bill 443, which states that if a person doesn’t give aid to another person, the people of the state of Nevada can hold him responsible in the form of adding prison time [enhanced sentence] to any prison time he might receive.  We feel that this is an excellent bill.  We have submitted letters (Exhibit C and Exhibit D) [for the record].

Chairman Anderson:

Obviously, there is nothing that we can say about the loss of your daughter.  Mrs. Heird, is there some information that you wish add to the testimony?

 

Elsa Heird, Relative of victim:

I agree with what Todd and my husband have said; we are here for the bill today.

 

Assemblyman Carpenter:

Doesn’t the city or whoever controls the license on these clubs revoke the license or shutdown operations when these incidences occur?

 

Det. Todd Raybuck:

We have attempted in several cases to go to the county or city municipalities and, in fact, some of those establishments have received negative sanctions.  However, it becomes extremely difficult for law enforcement to document the knowing and willing participation of the business or the persons responsible for the overall business operations, and their presence of knowledge that these types of activities are occurring.  So therefore, it becomes difficult to provide that type of information needed in those types of forums. 

 

Assemblyman Carpenter:

I think, under the law, county commissioners, city councils, or whoever is controlling the licenses could revoke a license and shut down operations.  That’s what they ought to do.

 

Lt. Stan Olsen:

As Detective Raybuck stated, it becomes very difficult.  What happens is, even if they did know about it, they will deny it.  Their defense is that they didn’t know, and if we can’t prove it, then they get off.  Many times, what they might do is fire an employee that was most closely connected to it, but that does not always happen either.  We get into a position where we simply cannot prove it well enough on an appeals level and either the council or commission can’t or doesn’t take action.

 

Chairman Anderson:

So, if we have a couple of young people out with ecstasy or one of these other stimulant drugs, and they have been on the party scene for some time, six or seven months.  These are friends; they take turns buying the drugs for each other.  One of them has a contact, however they come by it.  They may buy for a group of people at the club scene.  Now, all of a sudden, for whatever reason, they buy an unusually heavy dosage or something happens, the chemistry of the whole process is different.  So now, what will be the intent here?  Are we going to say the person who purchased and distributed that particular sample has a responsibility even though they may not be at the same party?  Is that what we are after here? 

 

Det. Todd Raybuck:

As the bill reads, it is my interpretation that persons involved in the sale or give away of the drugs such as those that fall under Nevada Revised Statutes (NRS) 453.321, or persons found guilty under NRS 453.333, they would have to be present at the time.  If the person were to sell the drug or give away the drug to another person, the way I interpret the bill, that person [who sold the drug] would still need to be at the location at the time this person was to become sick or injured, and then they would have the responsibility to provide care for that person.

 

Chairman Anderson:

This eliminates the Good Samaritan.  The Good Samaritan, the person standing by, is still protected.  If you have knowing involvement in the event, then you have to prove the knowing involvement.  Is that where the problem would come?

 

Det. Todd Raybuck:

I believe that is the interpretation of the bill as it reads.

 

Rosemary Flores, Director, BEST Coalition for a Safe and Drug-Free Nevada:

[Introduced herself.] BEST means Bringing Everyone’s Strengths Together; we are a nonprofit organization with several members here in southern Nevada.  Our main focus is to prevent the use of illegal drugs, alcohol, and tobacco from the very beginning, especially among youth.  We have conducted a community assessment to identify risk factors in parts of the Clark County community.  Our number one risk factor that has caused great concern is the availability of drugs.  It is of great concern to know that youth and young adults have indicated to us that they have easy access to getting drugs.  When policies change in the community, making it harder for distributors to distribute drugs, the possibility of us being able to do prevention, preventing someone from using a drug, increases. 

 

If A.B. 443 passes, it will be imperative for us to educate the community about the consequences individuals will face should they provide a certain controlled substance to a person and after the person takes the drug, needs medical assistance, but yet the individual responsible for providing the drug does not seek the assistance and, unfortunately, death occurs.  By having a policy, by having laws in place, and having a strong message for us to take back to the community, it will definitely help us to make individuals think twice before giving someone a drug and/or ignoring getting medical assistance.  In addition, this message will help deter individuals from pushing drugs to youngsters who are vulnerable and impressionable and who may never have taken drugs before.  Our main focus is to decrease the number of drugs that are already available and really try to increase our prevention efforts in the field.  I thank the Heirds for their strong involvement here in southern Nevada in helping us prevent the use and abuse of drugs.

 

Chairman Anderson:

Any one else in Clark County who desires to speak on the bill?  Here [Carson City] in support of the legislation?

 

Dan R. Berkable, President/Forensic Chemist, Director of Toxicology, American Toxicology Institute, Inc.:

[Introduced himself.]  I have been sitting in the audience listening to the testimony, and I just wanted to comment that I am very much involved in the use of drugs by both adults and youth.  I am in favor of the bill; it’s a good bill.  I am wondering why the clause “fail to render or seek the necessary medical assistance” [is included]?  In my opinion, if somebody consumes ecstasy or any drug that results in substantial bodily harm or death, whether they seek medical assistance or not, those that are selling that drug to that person or making it available, person or persons, still ought to be culpable.  I see that this is more or less a loophole in the law.  That’s the only comment I want to make.

 

Chairman Anderson:

Are you talking about Section 1, lines 5 and 6, subsection 1(a)?

 

Dan Berkable:

I am actually looking at “An Act,” the preface, and it would be…

 

Chairman Anderson:

OK, you are reading in the top part of the bill?

 

Dan Berkable:

…in the top part of the bill.  It would be Section 1, subsection 1, “The defendant failed to render or seek necessary medical assistance…”  My own feeling, as I am a forensic toxicologist qualified as such in Nevada, but as a citizen, I fail to see that if a person does that and still dies, why that would relieve the culpability of the individual who sold the drug to the person.  I can see a strong loophole there, a defense attorney just showing some, there is no degree of seeking, apparently any degree, to try to beat the law.  If somebody dies that ought to be it, they should know that if they sell this drug to this person, whatever it might be, and the coroner’s report and the autopsy concludes that is the drug that ended up harming the individual, that is enough.  That’s just my feeling, and I just wanted to add that as an observer.

 

Chairman Anderson:

Line 3 of A.B. 443 states, “Except as otherwise provided in NRS 193.169, a defendant who is found guilty of violating NRS 453.321 or NRS 453.333…”  NRS 453.333 already makes the action that you are talking about an illegal action.  So this is an additional penalty; there is already a punishment for providing the substance in NRS 453.333.  So you need to recognize that we are enhancing, adding to, or broadening the definition, not limiting the definition. 

 

Dan Berkable:

The enhancement would not apply if they sought medical attention?  They would still be adjudicated under NRS 453.333 but without an enhancement if they sought medical attention.  What I am saying is, they ought to have an enhancement if the person dies.  That jumped out at me while I was listening to the testimony. 

 

Chairman Anderson:

I think your problem is already taken care of, but we will make sure.

 

Assemblyman Mabey:

It finally made sense to me, it is kind of like practicing medicine without a license, giving a prescription or a drug; I understand that.  But it seems like it doesn’t affect these places where it occurs.  If they know that it’s going on, if there are stretchers to deal with these problems because they know it’s going to happen, it doesn’t seem like this bill will affect that at all.

 

Chairman Anderson:

I agree.  I don’t think that is the intention of the piece of legislation.  I think the intention is to try to get at the individuals involved, not the establishments who might recognize that this is a problem in their particular club.  Maybe they have people that pass out from other things, dancing too hard, I don’t know.

 

Let me close the hearing on Assembly Bill 443.  The Chair will entertain a motion.

 

ASSEMBLYMAN GEDDES MOVED TO DO PASS A.B. 443.

 

ASSEMBLYMAN CARPENTER SECONDED THE MOTION.

Risa Lang, Committee Counsel:

The way that our statutes are currently, NRS 453.321 has the general penalty for providing the substances and makes it either a Category B or C felony.  If there is death involved, it comes under NRS 453.333; it bumps it up to a Category A felony.  The way this new statute would work, it would be an additional penalty to either of those statutes, if “substantial bodily harm or death occurs” and the person does not seek to obtain the proper medical assistance for the person after they demonstrate they are having difficulties.

 

Chairman Anderson:

Other observations from members of the Committee?

 

THE MOTION CARRIED.  (Ms. Angle, Ms. Buckley, Mr. Gustavson, and Mr. Horne were absent for the vote.)

 

The bill will be sent to the Assembly Floor, assigned to Ms. Ohrenschall. 

 

I see quite a few in the south have decided to speak on A.B. 362, I might suggest to you that there is no possible way that I get to all 16 witnesses.  You should figure out a couple of people who would speak for the group in the south. 

 

 

We will open the hearing on Assembly Bill 362. 

 

Assembly Bill 362:  Revises provisions relating to driving or being in actual physical control of vehicle or operating or being in actual physical control of vessel while under influence of certain controlled substances. (BDR 43‑802)

 

Let me indicate to Assemblywoman Giunchigliani that it is 8:55 a.m.  It is my intention not to hear testimony in the affirmative for more than 40 minutes, so that we can hear testimony in the negative on the bill. 

 

Assemblywoman Chris Giunchigliani, District No. 9, Clark County:

[Introduced herself and submitted Exhibit E and Exhibit F.]  Everyone agrees that keeping impaired drivers off the road is a necessity.  That’s why I bring you A.B. 362.  I once again ask this Committee to consider the scientific facts regarding measuring impairment for substances such as marijuana.

 

I know some folks joke about me and marijuana because I sponsored medical marijuana last session and worked on Question 9 last year.  I hope that won’t cause you to dismiss this bill.  Driving under the influence is a serious matter and like many people, drunk driving has touched my family.  My middle sister was widowed with two children when she was 23 years old.  And years ago, my husband was driving his parents around Las Vegas when they were hit by a drunk driver and his mother was killed.  So, I don’t ask you to consider this bill lightly. 

 

[Assemblywoman Giunchigliani continued.]  But I do ask you to make sure the laws we pass in the area of driving under the influence properly measure impairment and are accurate and are defensible.  Nevada Revised Statutes 484.1245 is not accurate, which lends itself to not being defensible.

 

Marijuana, along with amphetamine, cocaine, heroin, lysergic acid diethyl amide, methamphetamine, and phencyclidine were first added to the Prohibited Substances Act during the 1999 Legislature.  I couldn’t find any backup information on why it didn’t properly define which metabolite was to be measured for cocaine and marijuana, nor the proper breakdowns for 6-acetyl morphine and methamphetamine, nor the scientific basis for selecting the nanograms on the list.

 

That’s what this bill is attempting to do.  In the amended rewrite I’ve provided to the Committee, I simply define which metabolite should be identified when drug testing for DUID [driving under the influence of drugs].  It also sets a proper standard of 15 ng/mL for marijuana, the same used by the federal government and the state of Nevada.

 

In my research, I found some studies and spoke to several doctors who have helped me understand what should be contained in our prohibitive practices section.

 

First, a little background.  The body processes delta-9-tetrahydrocannabinol, better known as THC, much the same as it processes other psychoactive drugs.  After THC enters the bloodstream, mostly through smoking, a small portion (about 1 percent of the dose) is delivered to the brain where it binds to a certain set of receptors.  If the amount of the drug in the brain exceeds the threshold dose, psychoactive effects occur.  Maximum effects are typically achieved within 15 to 30 minutes after smoking.  While it’s being distributed by the bloodstream to the brain, it is also going to other parts of the body.  As this distribution continues, THC concentrations in the blood falls, reducing the amount of drug available for binding to brain receptors.  Within 2 to 4 hours, THC levels in the brain typically fall below those necessary for psychoactivity, which lends itself to impairment. 

 

[Assemblywoman Giunchigliani continued.]  Many drugs are lipid soluble.  This allows them to enter cells easily throughout the body by dissolving into cell membranes.  Drugs move rather quickly out of most cells, either in their original form or via biotransformation with the cell, they now become water-soluble metabolites.  They then reenter the bloodstream and pass through the liver.  Eventually, all the drug and its metabolites are excreted from the body in sweat, feces, and urine. 

 

Delta-9-tetrahydrocannabinol does the same thing other drugs do for entry into the cells at about the same rates as other psychoactive drugs.  However, the difference is that the THC cells have high lipid-solubility and leaves the fat cells very slowly.  This means the amount of THC in the brain falls below the concentration required for delectable psychoactivity.  That’s why someone can smoke it a week earlier and some trace still shows up in their system, but what shows up is not impairing.  It appears that none of marijuana’s effects last past a few hours.  Researchers have reported subtle effects up to 24 hours, but dozens of studies measuring psychomotor ability and intellectual performance have found its effects disappear within a few hours of smoking.

 

So I contacted two doctors of toxicology to discuss what this means.  I contacted Dr. Donna Bush, Ph.D., and Chief of the Drug Testing Section for the United State Department of Health and Human Services.  This center certifies the testing labs in the United States for drugs.  She said the following:

 

Urine is not appropriate to test for the presence of marijuana and its metabolites.  When looking for DUID, you are looking for the “parent compound” in the blood equilibrium.  This gets into the blood, some goes to the brain, and that’s where you deal with the psychoactivity.  Urine doesn’t impact the brain and therefore won’t measure it.

 

The Academy of Forensic Science looks at placement value (in the brain vs. liver) along with the parent compounds mentioned above.

 

I was faxed the definitions and recommendations that the federal government uses as mandatory guidelines for Workplace Drug Testing Programs.  You have a copy in your handouts (Exhibit E).  I then asked her if there was an expert I could speak to about making our law defensible as far as the nanograms.  She said she’d make a couple of calls and get back to me.  She referred me to Dr. Bill Anderson.

 

Dr. Bill Anderson runs one of the federally certified labs in Nevada at the Washoe County Sheriff’s Office.  Dr. Anderson said:

 

There is no correlation in urine for measurement.  You can’t predict one specific level that can be used for impairment, but there are standards used for drug testing.  Urine measures 11- or 9-carboxy which is not the hallucinogen.  Blood measures carboxy delta-9-tetrahydrocannabinol, which is the metabolite that is the hallucinogen.

 

He was going to try to be here, but had another engagement.

 

[Assemblywoman Giunchigliani continued.]  I also reached Mr. Dan Berkable, a forensic chemist, to testify.  I’m hopeful he can do a better job than me on explaining the science I’ve been presenting.

 

Also in your handouts (Exhibit F) is what the state of Nevada defines as a metabolite for both marijuana and cocaine, along with the number of nanograms for screening.  The number from both the federal government and our own state is set at 15 ng/mL in the blood.  These are scientific and allows for consistency in our laws.  These should be the levels we choose for impairment when considering DUID.

 

I have also reinserted language that is similar to what we’d had in law previously.  We had language that referred to “mandatory conclusive presumption” of which the Ninth Circuit Court of Appeals said, “We need not decide today whether presumption established by NRS 484.381(1) is facially constitutional, because the statute was applied unconstitutionally in this case.”  It is also in your handouts.  The language was later removed from statute but the more constitutional standard of rebuttable presumption was not put in statute in its place.  This would permit a standard of “beyond a reasonable doubt.”

 

I strongly urge the Committee to adopt this constitutional language, which won’t undermine the fact-finder’s responsibility at trial and properly allow for due process.

 

In conclusion, I hope that I’ve laid the case out for you to properly define the marijuana metabolite as THC, to use blood as the most reliable means to test for impairment, and to establish the most acceptable standard for nanograms.

 

Thank you for your attention.  If I may ask Mr. Berkable to speak and then I’ll attempt to answer your questions.

Assemblyman Conklin:

What other states have these standards?

 

Assemblywoman Giunchigliani:

I found only eight states that actually even mention marijuana or marijuana metabolites; I just got that this morning.  Most states do not even mention it under their drunk driving laws, they just say “drugs.”  Dan Berkable might be able to give you more information.

 

Dan Berkable:

[Reintroduced himself and submitted his credentials in Exhibit G.]  I am certified in the Nevada courts as a forensic toxicologist.  I have a contract with the State of Nevada in worker’s compensation to determine whether or not ingested drugs cause accidents that would be insurable or not.  I have been working with Assemblywoman Giunchigliani for approximately a month on this bill.  Basically, everything that she said was correct. 

 

Heroin, for instance, actually there is such a thing as heroin, but you don’t find it in the system, you don’t ever test for heroin.  Heroin is a synthetic made from morphine and that particular synthetic is called diacetylmorphine; they just add two acetyl groups to the morphine molecule to produce heroin.  When somebody takes heroin, it’s immediately stripped, and you get monoacetylmorphine.  That’s found for a very short period of time in the body; then it goes to morphine.  That’s the story on heroin.

 

With the marijuana, the term “marijuana” itself, I have always felt since this prohibited substance law was passed, is not correct, because actually there are no hallucinogenic compounds in marijuana, per se.  Marijuana must be heated either by smoking it or baking it in the brownies to produce the active THC (delta-9-tetrahydrocannabinol).  It exists as cannabinolic acid in the plant and that is not active.  So technically, botanically, it is not correct either because there are a lot of things in marijuana.  My feeling would be to list exactly what it is—“delta-9-tetrahydrocannabinol,” instead of ”marijuana.” 

 

In the blood, any metabolite should not be used to determine impairment, because metabolites are inactive in most cases.  In all cases, that is generally tested for, for sure.  And urine is not a good sample to determine impairment.  In fact, some time ago, probably a decade now or more, alcohol was no longer tested for in urine, or urine used to determine impairment by alcohol.  That was taken away from our statutes.  So this would be consistent with the way alcohol would go if urine were taken away. 

 

[Dan Berkable continued.]  The numbers that come up from the federal guidelines are simply to determine if a person has used drugs.  They are at a level high enough to take away any or most of the possibility for environmental contamination but low enough to determine if the person has used the drug.  Nevada already has a statute that addresses illegal use; that’s NRS 453.411.  So we already come equipped with laws to detect use of the drug.  The federal statute’s levels would apply to that particular law.  But in this statute, the spirit of which is to protect the citizens and visitors in Nevada from people who are driving in an unsafe manner, impaired manner, those levels do not apply; they do not imply a person is impaired.  With respect to marijuana, instead of “marijuana metabolite” or “marijuana,” it should simply say “delta-9-tetrahydrocannabinol.”  The reason why the delta-9 is put there is because there is a delta-8.  It’s just the nomenclature of naming compounds.  So, “delta-9” is important to have there as well as “tetrahydrocannabinol.” 

 

Fifteen nanograms per milliliter (ng/mL) would be a level that toxicologists [would support]; there would be a general consensus agreement that would be an impairing level.  You would not want to go lower than that, but in answer to Assemblyman Conklin’s question, there are states that have levels as high as 25 ng/mL.  I do not know the demographics of how many states, but I know of at least one that has 25 ng/mL as its impairing level.  No one would ever question that; all toxicologists would agree with that [level].  I believe that most toxicologists would agree with that.  With 15 ng/mL, if a rebuttable presumption is put in the statute, since we do not have a per se law for drugs, that would be important.  As you know, alcohol is not a rebuttable presumption, but the data is clear on what levels are impairing to most of the general population.  So, in my opinion, that’s a good law without a rebuttable presumption.  But with drugs, it is not clear; it’s just general consensus. 

 

Then drugs fall under prescriptions, those types of things, so the rebuttable presumption would handle those things.  I noticed that the definition of “prohibitive substance” in this section excludes prescription medications.  So, if there was a rebuttable presumption, prescription medications could be dealt with, if that could be proven or shown.  Basically, there are other things that I could say about some of the other drugs, but the focus of this bill is the marijuana.

 

Assemblyman Geddes:

In looking at the handout that was provided (Exhibit E), we have “marijuana metabolite” and it defines it differently in the two different sections: the delta-9-tetrahydrocannabinol, and the other is the delta-9-tetrahydrocannabinol-9-carboxylic acid.

 

Assemblywoman Giunchigliani:

That was an error; it should only be the delta-9-tetrahydrocannabinol.

 

Assemblyman Geddes:

In that case, the delta-9-tetrahydrocannabinol isn’t a metabolite; it is a component.

 

Assemblywoman Giunchigliani:

It is the parent compound, correct?  That was the difficulty, using the term “metabolite” to try to remain consistent.  But in reality, how Dr. Bush explained it to me, what you want to measure is the parent compound, which is the delta-9-tetrahydrocannabinol.  So, rather than getting too confusing for now, I just stuck with the “metabolite” and defined it down below.  We picked up the watercraft section, which is probably where I missed fixing the correct terminology. 

 

Assemblyman Geddes:

I see on the test results that the cocaine metabolite and the marijuana metabolite are those two analytes listed there, and that’s what it’s tested for in the laboratory.  But does defining it solely as two compounds just lean it basically to what you are testing for on a routine basis?  Are there other metabolites that could be tested for or shown, based on your testing technology, that you are not able to identify at this point in time, that might be more indicative of impairment? 

 

Dan Berkable:

You are referring specifically to cocaine?

 

Assemblyman Geddes:

To heroin, to cocaine—cocaine and marijuana, although it is not a metabolite—so yes, just cocaine.

 

Dan Berkable:

Each drug has its own circle of characteristics.  In the case of cocaine, the cocaine metabolite is called benzoylecgonine.  Cocaine technically is called methylbenzoylecgonine; the body demethylates it.  As soon as it’s demethylated, it is no longer active; it’s inactive.  So in that case, the cocaine metabolite flowing in the bloodstream is not impairing anyone, but cocaine the parent drug is.  As far as heroin is concerned…

 

Assemblyman Geddes:

The answer, in one aspect, is not so much; is it impairing you now?  The reason the metabolites are specified is because, by the time you are able to get someone into the lab and get a blood test analyzed, the compound may have degraded to the point where you are looking at metabolites, which is why I think the metabolites are in the system to show that the compound was in the system.  Metabolites may not be the impairment, but it was there in the system.  If an officer pulled someone over for impairment, the presence of those metabolites is a strong case for the fact that the compound was in the system, backing up why they pulled them over. 

 

Moving on, I have a question on the rebuttable presumption.  Going back to when I was in college, I did that drinking test that Mr. Manendo stated he failed very early at a low BAC (blood alcohol content).  I got all the way up to 0.13 BAC and my motor skills were still improving; at 0.14 I took a serious downgrade.  I was passing all the motor skills tests up and beyond; I think we all agree that 0.08 is a good standard.  But if you are talking about rebuttable presumption, we all metabolize differently.  We all degrade these compounds differently.  Frankly, I am not sure why you would single out marijuana’s rebuttable presumption, other than it stays in the system for a period of time.  You could have been impaired at the time.  I have a problem pulling marijuana out as a rebuttable presumption from the list.  If you are going to go rebuttable presumption, it should be for marijuana and alcohol, but I don’t think it should be for anything.

 

Assemblywoman Giunchigliani:

When I first started the bill, I was dealing solely with addressing the marijuana.  As I have talked to various groups of people, I found that there are more problems with this section that really ought to be reviewed and may not be resolved in a hearing as simple as today’s.  I think that rebuttable presumption should be there for any of those factors, whether alcohol, cocaine, or prescription drugs, as far as that’s concerned.  If there is a willingness to look at that, I am not an expert in this area, so if it’s the terminology and just becoming acquainted with it, I think that ought be part of the standard allowed, if you are going to go to court.  I think we segregated it because the original bill was solely looking at the issue of the marijuana metabolite that we were not properly defining.

 

Dan Berkable:

When this bill was passed, I was talking to individuals in SIIS (State Industrial Insurance System) and about the levels that are here.  In fact, I wrote something in a newsletter indicating that these federal levels do cover the use of the drug, covered in NRS Chapter 453.  But the issue in NRS Chapter 484 is the impairment from the drug.  The presence of the marijuana metabolite is not a presence that is impairing.  Now over time, things do change.  I think that law now says they need to be tested within two hours for alcohol because of extrapolation and those types of things.  But a person that uses marijuana regularly will carry a certain level, normally, sober.  You can think of it as alcohol at 0.01 percent or 0.02 percent in a person.  It’s there, but it’s just not impairing the person; everybody’s different. 

 

The important point in the case of marijuana: when a person starts smoking marijuana, the level goes up pretty rapidly.  It starts declining even while the person is still smoking.  It might go up to 25, 50, even 100 ng/mL and then it comes down.  After an hour or two, it will level off and linger for hours or days, definitely in the urine, but even in the blood.  This was the testimony in a trial of Dr. Peet that it will just stay in the blood stream at a certain level for days or weeks.  So the current 2 ng/mL for the parent compound and 5 ng/mL for the metabolite really could identify an individual who was carrying that level for a long period of time; it is not identifying a person impaired. 

 

What I wrote to Assemblywoman Giunchigliani was first that it ought to be just the blood, not the urine, because urine is not indicative of impairment, although if somebody comes with 300,000 ng/mL of metabolite in the urine, most likely they would be impaired, but it is too messy to try to legislate something like that; second, it should stick to blood; and third, the levels should be higher.  In summary, the parent compound, higher levels, and just the blood; that would be scientifically certain.

 

Assemblyman Geddes:

I understand the point on the blood very well.  The rebuttable presumption on what’s in the system though is a question.  You said it could be up to two hours for BAC, so let’s just assume it is two hours on marijuana.  If it is dropping out of the system that quickly, when you are talking about THC, by the time you pull someone over and get him or her in to have the blood test done, if within two hours it degrades as quickly as you are saying, which the charts back you up on, the person could have been impaired when they were stopped.  But they would be below the THC on the blood level.  There has to be some way to indicate from the time the officer witnessed someone driving impaired, pulled them over, and analyzed their blood, that they could have been above that amount, which caused the impairment and the reason for pulling them over.  They are not just pulling somebody over and saying they are on dope.  There is a reason they test you for it.  Dropping below the baseline doesn’t quite, isn’t acceptable to me, since there has to be something we can analyze, for emollients degrading that rapidly. 

 

Dan Berkable:

I am in agreement with you, totally.  You are right; you are now integrating the time and the mechanical process of testing someone, which is important.  Cocaine in vitro, in the tube, will actually hydrolyze and form cocaine metabolite.  Therefore, if the Committee wanted to keep this in place, the metabolite levels need to be higher, as well as the parent compound, in order to address your issue, which is a very valid issue as a mechanical process. 

 

Assemblyman Brown:

I was trying to understand the question of urine testing.  I don’t want to belabor this, if this is going to a subcommittee. 

 

Dan Berkable:

Blood is a constant volume; it doesn’t change in a person’s body.  Urine varies depending on how much liquid is in the bladder; that can vary.  It varies on what the levels mean.  Somebody drinks a lot of water or a concentrated bladder can change the levels of the same ingestion drastically.  Plus, the drug has already gone through the kidney function and ends up in the urine as inactive metabolites.  So you have that also.  To try to extrapolate back to what the metabolites were is hard because you do not have a constant volume like you do with blood.  That’s basically why most toxicologists say urine is not good for [testing] impairment.  It’s OK for use, it proves a person used the drug, obviously.  But what was the dose or what did it do to the person?  A person could use a little bit, have a concentrated bladder, and show a higher level, or drink a lot of water and show a lower level.

 

Assemblyman Mortenson:

Did I hear you correctly that some of these drugs start metabolizing or degrading in the vial before you even test it?

 

Dan Berkable:

Only one—cocaine.  Delta-9-tetrahydrocannabinol is very stable, but cocaine has been shown by studies that it will do that.

 

Assemblyman Mortenson:

In the case of cocaine, you could actually take a dose that is totally ineffective and still have a lot of metabolites in your system.  Then if they try to convict you on metabolites, obviously, that’s a great injustice.

 

Dan Berkable:

It would be a problem that was brought up by Mr. Geddes.  It would be hard to find somebody if it were not properly drawn and tested right away.  It would show that all there is was metabolites, no parent compound.  If you only had cocaine it would be difficult to adjudicate a person for impairment.

 

Assemblyman Mortenson:

With other drugs that don’t metabolize outside of the system, can’t you extrapolate back?  Isn’t there some reasonable curve that you can say, “This is the norm.”  Of course, you won’t be totally correct because people metabolize differently.

 

Dan Berkable:

It is ratios that they use, ratio of the metabolite to parent.  But there are a lot of opinions; you get into the area of difference of opinion.  Nobody is going to argue 15 ng/mL of delta-9-tetrahydrocannabinol is not impairing.  That would be pretty much agreeable; 25 ng/mL for sure, at least one state has.  Fifteen ng/mL would be the lowest you would want to go.

 

Assemblywoman Giunchigliani:

In conclusion, I think that Dr. Anderson may not agree with the 15 ng/mL, but I think at least he can help explain the rationale.  Again, it is not an attempt to get rid of our laws, but to make sure our laws are accurate and defensible, as far as Nevada stands.

 

Howard Brooks, Deputy Public Defender, Office of the Clark County Public Defender, and President, Nevada Attorneys for Criminal Justice:

[Introduced himself.]  The Nevada Attorneys for Criminal Justice (NACJ) strongly support this bill.  I want to commend the sponsors of this bill because it’s so easy to mischaracterize what this bill is doing.  This bill strengthens the DUI (driving under the influence) law.  This bill makes DUI convictions more secure and less vulnerable to attack.  This bill does this by tying criminal liability to impairment; impairment is what our laws want to stop.  If this bill does not pass, I am convinced that it’ll only be a matter of time before we are able to challenge successfully the current law because we believe it is unconstitutional.  This bill fixes the constitutional problems with the current law.  I think it is the right thing to do, and I hope the Committee will pass the legislation.

 

Assemblyman Brown:

I know a reference was made to a case, McClain.  Was that a challenge?  You say we are getting closer to being able to challenge the statute.  Can you tell us how that is working?

 

Howard Brooks:

This is not my particular area of law; I do murder cases.  But I am vaguely familiar with what other attorneys are doing.  I am familiar with one case that will eventually make its way into the federal system.  The current law, once it gets into federal court, is tremendously vulnerable to challenge.  But if they pass this bill, I think it is ironclad.  These conditions will be absolutely unchallengeable. 

Assemblyman Claborn:

This bill refers to “his” 21 times, “him” 7 times, and “himself” 2 times.  No where in this bill do I see “he,” “she,” or “herself.”  I think the bill needs a little work.  I am sure that the men are not the only ones who take that drug.

 

Chairman Anderson:

I remind you of the provisions of NRS 0.030, which says that our statutes are non-sexist and “he” means everybody.

 

Assemblyman Geddes:

How long has the marijuana statute been on the books?  Do you know of any cases working their way to the Nevada Supreme Court to be overturned?

 

Howard Brooks:

Again, this is not my particular area of the law.  There was one case that I was aware of that was recently granted a new trial, which essentially ended the constitutional challenge.  It was a district court problem and granted a new trial.  I am not converse enough to speak about that case.  These cases are hard to get into federal court, just because they don’t occur that often in terms of marijuana cases.  So, I am not familiar with any cases that are ripe for federal review.

 

Ms. Giunchigliani tells me it was 1999 when this bill was changed.

 

Chairman Anderson:

We have now ended those speaking in support of the legislation.  Is there anyone else who wishes to speak in support of the legislation?

 

Ben Blinn, citizen:

One, I think it is a good bill.  Two, for those that are follicularly-challenged, nobody mentioned the hair test.  The history of the addict is contained in the hair.  When the judge sees that the hair is diminishing, he knows which way a person that is a user is going.  In other words, sometimes you have a line fixed from when you first get the addict and then as he is in program.  As you continue to test and some of these residuals go off, the hair shows the decline in his use.  Some things stay in the system more than 24 hours, historically.  My point, I never heard any mention of the hair test, or the Lighthouse and systems that are working at rehab with the addicts.  It measures you all the time to see that these levels are going down, rather like a sine wave.

 

Kristin Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney’s Office; and representing the Nevada District Attorney’s Association:

I wasn’t planning on speaking today; I just wanted to voice my opposition.

Jim Nadeau, representing Washoe County Sheriff’s Office:

I will let Dr. Anderson lead, as a technician, to answer the questions and deal with the testimony.

 

William Anderson, Ph.D., Chief Toxicologist, Forensic Science Division, Washoe County Sheriff’s Office:

This is an interesting experience I find myself in today.  I have been asked by people who are in favor of and opposed to this bill to speak.  That’s often the case in my business.  [Introduced himself.]  I have a Ph.D. in pathology and toxicology, and I have been performing these duties for approximately 30 years.  As you probably know, the Washoe County Sheriff’s Office is a regional lab and we provide services to both law enforcement and medical examiners/coroners across most of northern Nevada.  We see a lot of cases that cross-section from one part of the state to the other.  I am opposed to making this 15 ng/mL a per se legislation.  I think there is adequate reason to explain why that is way too high.  I will agree that no one is going to argue that if you are at 15 ng/mL or 25 ng/mL that you are impaired, but there are practical limitations to being able to implement such a high concentration. 

 

First of all, we ran approximately 531 cases that screened positive for marijuana.  Marijuana testing is a two-tiered process.  I will say changing the statute from “marijuana” to “delta-9-tetrahydrocannabinol” would be acceptable with me because that is what we report.  We screened 531 cases and we subjected those that indicated potential marijuana use by a confirmation process that determined whether delta-9-tetrahydrocannabinol was present and whether the 11- or 9-carboxy metabolite was present, which is the major metabolite of marijuana.  It is inactive, that is true.  There is another metabolite that is in very low concentrations, 11-hydroxy-tetrahydrocannabinol, that is active.  Very few labs look for it and most of those that do, don’t find it because it is so low, but it is there and it is active. 

 

Of the 531 cases that had potential marijuana, when just looking for delta-9-tetrahydrocannabinol, 212 of them were negative.  That means that those that had potentially carboxy-tetrahydrocannabinol present, there was no THC in 212 of them.  That leaves 319 positive cases.  Of those 319 positive cases, only 6 were greater than 20 ng/mL.  That was the information I had; I don’t know how many would be 15 ng/mL.  That is 6 out of 319, which means that less than 2 percent of all reported positives for THC were positive.  Most of the cases, as one would expect and we’ve had some testimony to this, I can corroborate this with actual data, were between 2 ng/mL and 5 ng/mL.  That is, 61 percent of them were between 2 ng/mL and 5 ng/mL.  The average, which of course is just the arithmetic mean, was 6 ng/mL.  That’s averaging all of the reported positives, and we do not report a value less than 2 ng/mL from our laboratory. 

 

So, you can see that if you had a concentration of 20 ng/mL or even 15 ng/mL you are going to have practically no people above the presumptive level or per se level.  Why is that?  We have already discussed that.  Marijuana is smoked, the THC concentration rises very rapidly, and then it disappears just as rapidly.  By the time a person is observed driving, is administered a field sobriety test, and is taken to a medical facility, you are talking about a few hours since the smoking.  As everyone who has testified today will tell you, by the time you get these tests taken, the levels are going to be very low.  The issue is, the level taken at the time of the blood draw does not reflect the level when the person was driving.  And that’s the difficulty you have. 

 

Reference was made to Dr. Peet’s work on metabolites that stay in the system for a while.  That is true; it does stay in the urine anywhere from 2 days to 10 days, depending on the smoking history of the person.  However, Dr. Peet’s efforts in research are quoted very extensively in that chronic smokers, that is people that smoke a lot, do not have, 12 hours later, over 2 ng/mL in plasma, which would correlate to approximately 1 ng/mL in whole blood.  So I think, we’re not picking up the chronic smoker who just happened to be on the highway with a cutoff of 2 ng/mL.  Could you argue that it should be 1 ng/mL?  Yes.  Could you argue that it should be 3 ng/mL?  Yes.  Could you argue that it should be 4 ng/mL?  Perhaps.  But I think 15 ng/mL is totally unrealistic, and I personally have no problem with 2 ng/mL if we are going to have per se legislation. 

 

The issue of cocaine came up and there is another metabolite of cocaine that we measure in our laboratory called ecgonine methyl ester.  We can’t spell it either, so we call it EME.  Often, when you collect the sample, the question about driving around with cocaine metabolite came up.  What I think Mr. Berkable was referring to is that once the sample is collected, cocaine, even if it’s present, could be degraded into benzoylecgonine or ecgonine methyl ester after collection.  I think that’s what he was referring to.  An issue of hair came up, and hair is very good for determining use, but it has no value for impairment, actually, and takes a few days to get in there.  So with the data that is real, I think, you can see that you would have no chance for many convictions at all with a level of 15 ng/mL or 20 ng/mL.  That’s why I would be opposed to that.

 

Assemblyman Conklin:

With respect to the 2 ng/mL, 3 ng/mL, 5 ng/mL, I think the question the bill is trying to address is, where does impairment show up?  What is the lowest level that there is a consistent amount of impairment so that when we prosecute these folks, we are done, and we are not back in court six months later?  They are impaired, we set them up, and we put them away. 

 

Dr. William Anderson:

The simplest answer to that is that studies that have been undertaken…  It is very difficult to get a handle on marijuana THC concentration and impairment.  It is difficult to get the sample quick enough, particularly if doing a driving study, where people have attempted doing it.  It changes so rapidly after smoking that you can’t tell what it was exactly before; that’s issue one.  The second issue is that I can’t give an absolute number.  I don’t think anyone else can either.  But what I do know is that the numbers we look at are not the numbers that they were when they were driving.  We also know that chronic smokers should not be involved in this issue if they haven’t smoked recently because it doesn’t get that high. 

 

Secondly, we know that when smoking marijuana, even after some of the physiological effects are gone, there is still some motor skill and driving impairment for about 4 hours.  Some argue 24 hours, but that was for airplane flying and things of that nature.  I think what you are trying to do, at least the way I would envision it, is to get to some recent smoking, where we know there is some residual motor skill impairment, that has been measured.  You are trying to make sure that the person who is the chronic smoker is not affected by this too much.  I would look at it that way.  If you must have a number where a person is impaired, I couldn’t give you a specific number.  But I do know that the measure is not what they were when they were driving.

 

Assemblyman Conklin:

With respect to alcohol, we have a two-hour time frame and the amount is low enough that if you test in that two-hour frame, we knew you were higher and we knew you were impaired.  If you are at 0.08 BAC two hours later, chances are you were 0.12 BAC or 0.13 BAC.  I agree 15 ng/mL is not the right number.  I think that everything I have heard, you certainly agree, indicates that at 15 ng/mL you are impaired.  Where can we reasonably draw that line, how much does the body get rid of over a two-hour time period, or a four-hour time period if that is what the test is, so that we know we have captured the group that we are trying to capture? 

 

Dr. William Anderson:

Again, I don’t think there is a magic number where you can say this person is impaired.  But I will give you an example of an idea of kinetics.  With the smoking of marijuana, people may reach 100 ng/mL at a peak.  Mr. Berkable correctly characterized that smoking zone, so I won’t repeat that.  Within two hours in controlled studies, most people are within 2 ng/mL to 5 ng/mL.  And we know that smoking marijuana, we have impairment effects for at least 4 hours.  I think that’s what you are trying to do; 2 ng/mL is as reasonable as 3 ng/mL or 4 ng/mL, in my opinion, but that’s obviously discretionary. 

 

There is no magic number and you cannot back extrapolate because what happens is you make the peak and it drops very sharply at first and then “hockey sticks” out to the lower amount.  That’s why you don’t know where you are on the “hockey stick.”  We don’t know whether you are near the bend or below; that’s why you can’t extrapolate back.

 

Assemblyman Brown:

Of these 531 stops, for the most part, was a field sobriety test administered at that time?

 

Dr. William Anderson:

Yes, sir.  They always are unless there is an accident or if the person is injured, of course, they can’t, they don’t do that.  For the vast majority, yes [field sobriety tests] were [administered].

 

Assemblyman Brown:

I imagine there was some determination at that point of impairment, so the officer would take them in for testing, correct?

 

Dr. William Anderson:

Yes, sir.  There has to be some reasonable suspicion, as I understand it, I am not an attorney, for them to request the test in the first place. 

 

Laurel Stadler, Lyon County Chapter Director, Mothers Against Drunk Driving:

We are opposed to this legislation.  I haven’t seen any of the changes in verbiage that were mentioned earlier.  We think it is very important that all of the levels stay at per se levels.  I believe that you will hear from victims, who will say that prior to the implementation of this 1999 statute, DUID and DUI marijuana cases were just not being prosecuted because there were no levels in statute. 

 

I pulled the information from Senate Bill 481 of the 70^th Legislative Session, and it looks like there was a lot of serious consideration given to these levels at that time.  I think Ms. Combs was with the Senate Judiciary Committee at that time.  There were hearings after hearings where they talked about the levels and the information to put Senate Bill 481 of the 70^th Legislative Session into statute.  This was also mentioned earlier, it passed both houses virtually unanimously with one “no” vote in each house.  So, I think the information was reviewed and validated at that point.

 

The issue of impairment has been addressed by the Nevada Supreme Court on this particular piece of legislation.  I am quoting from the [Reno Gazette-Journal] newspaper (Exhibit H), which I hope is correct, but it says the justices said they agreed with prosecutors who said the law “is rationally related to the state’s interest in highway safety and in deterring illegal drug use.”  So, I think to talk about the impairment being an issue again, that has already been upheld by the Supreme Court.  If the levels and the naming of these metabolites and drugs, of course, I am not an expert on that, if that needs to be clarified, that may be a valid issue.  But to look at taking these drugs out of a per se stance, I believe that has already been addressed by the Supreme Court and upheld as written.

 

Bruce W. Nelson, Deputy District Attorney, Office of the Clark County District Attorney, Vehicular Crimes Unit:

For the purpose of time, we have divided ourselves into three groups.  Mr. Booker and myself will speak about the law enforcement aspect, we have several toxicologists who will talk about the toxicology aspect, and we have several victims who are going to speak.

 

[Introduced himself and submitted Exhibit I.]  We are very much in opposition to this bill, primarily from a law enforcement perspective.  What I want to talk about is the fact that the bill makes something a rebuttable presumption, setting, I believe, at 20 ng/mL, although I have heard some discussion today that it has been lowered to 15 ng/mL.  No one down here has been provided with the changes, so I will assume it is still 20 ng/mL.  The problem with the rebuttable presumption at 20 ng/mL, anybody who is under 20 ng/mL is thereby not impaired, because if the law says a person is rebuttably presumed to be impaired at 20 ng/mL, that means they are not impaired at 19 ng/mL.  You heard Dr. Anderson testify that only 2 percent of the cases they checked found levels above or at 20 ng/mL.  That means 98 percent of the people who are currently prosecuted for driving under the influence, cannot be [prosecuted].  This bill, in essence, not only repeals the prohibited substance law, it also repeals driving under the influence of marijuana because it makes it impossible for the prosecution to prosecute such a case. 

 

Secondly, the bill itself is unconstitutional because if you read the language it requires the defendant to rebut the presumption.  As I am sure Mr. Brooks will concur, you cannot, in a criminal case, make a defendant prove anything.  The defendant has a right to remain silent.  Therefore, this bill, as written, unlike the present bill, will not pass constitutional muster.  On the present bill, I would just comment that S.B. 481 of the 70^th Legislative Session, as the last speaker noted, has already been upheld by the Nevada Supreme Court in a 7-to-0 decision.  It was attacked on many constitutional grounds; the Court affirmed all of them.  So there is no question about the constitutionality of the bill; it has been addressed.

 

Let me point out one last thing.  Presently under the law, a person can take a blood test or a urine test for drugs.  As Dr. Anderson testified, marijuana, or THC if you prefer, will not show up in urine.  Therefore, anybody who is pulled over for DUI and knows they have marijuana but wants to avoid prosecution, simply requests a urine test, because the urine will only detect carboxylic acid.  A person could have 100,000 ng/mL of THC, but none of that would show up in their urine.

 

In conclusion, Mr. Brooks was right about one thing when he said it would make these cases ironclad.  He is right because under this bill no one will be prosecuted for driving under the influence of marijuana.  They can’t be, so therefore there won’t be anything to appeal.

 

Gary R. Booker, Chief Deputy District Attorney, Office of the Clark County District Attorney, Vehicular Crime Unit:

[Introduced himself.]  We are the DUI experts in this area.  The law, the way it is set out here in the amendment that’s proposed, makes DUIs unprosecutable where marijuana is involved.  Mr. Nelson spoke to that.  I would also note that I was talking to one of the chemists that will be coming to testify and the levels that have been suggested are absolutely absurd.  They would be roughly equivalent, in terms of percentages, to making the alcohol a 0.35 BAC.  I note also that the levels that we already have set, as testified to by Dr. Anderson, are very good.  They tell us recent use, use within four hours.  He made an excellent point in saying that what we are testing for is not the level they were at when they were driving. 

 

I got some figures from the Las Vegas Metropolitan Police Department (LVMPD) Crime Lab.  Quest Diagnostics is here with John Hiatt and Mustapha Hatab.  We also have Ray Kelly who will testify about some other things.  We contacted the LVMPD Crime Lab.  For 2002, they found 158 samples where only THC were involved.  Out of that 158, 108 fell between the 2 ng/mL to 4 ng/mL range, 28 fell between the 4 ng/mL to 10 ng/mL range, 17 in the 10 ng/mL to 19 ng/mL range, and the remaining 2 were in the 20 ng/mL and 1 at 22 ng/mL.  In short, roughly, 1 to 2 percent of these are at the range proposed in this legislation.  I think you will find that the information to be provided supports this.  Essentially, we have 70 percent of the people who are tested for being under the influence of marijuana at the 2 ng/mL to 4 ng/mL range and about 5 or 6 percent of them at the 4 ng/mL to 10 ng/mL range.  The levels of 2 ng/mL to 5 ng/mL are completely justified under the current scheme of things.

 

The proposed legislation eradicates, bans, or takes THC or carboxylic acid out of the formula altogether.  That is absolutely absurd because it is like walking in the snow and leaving footprints; THC or carboxylic acid are the footprints to marijuana.  Your body can’t process the marijuana; it changes it into something else.  We know that by the time we have your blood, an hour or two later, if we find carboxylic acid, we know you had marijuana, we know it was recent use, and we know it was within four hours.  If it were in there for at least four hours and you had a crash two hours ago, we know you smoked it two hours before you got on the road.  Those are the things that we are certain of.  It is also true that you cannot tell impairment from the level; the science just isn’t there yet.  At some point, we may be able to, but right now we can’t.  But we do know that people are dying. 

 

Gary Thompson is going to testify momentarily about the loss of his wife to a fellow by the name of Mr. Simbrant, who tested at 14 ng/mL and we know that he had smoked an hour before.  We know the case of Jessica Williams [who tested at] 5 ng/mL; we know that she smoked two hours before.  A case by the name of Juanita Kim McDonald, who killed a person when she rode upon the [Las Vegas] Strip; her level was 5 ng/mL, if I am not mistaken. 

 

Currently, there are about 8 or 9 states, 10 counting Nevada, that have per se legislation.  None of them have these ludicrous levels at all.  They maintain a position of zero tolerance, which is actually where we should be.  They say “any detectable amount.”  Our laws should likewise be any detectable amount, but it isn’t, so we will work with what we have.  Our law is by far the most liberal of these per se in that we have set amounts. 

 

We have a 28-page seething opinion from the Nevada Supreme Court upholding the constitutionality of that statute and I would note there were several hearings, probably four in all, that were one and two days in length, where we did nothing but go over the science, the law, and the literature when we were putting that case together.  So they have already said that the statute we have is fine.  If you are concerned about the matter of the one judge in Clark County who disagreed, he will be visited with an opinion from the Nevada Supreme Court and we will see what they say in reference to the same issue very shortly.

 

Chairman Anderson:

This is going to go to a subcommittee.  I have already determined the makeup of the subcommittee.  I will announce who the subcommittee members are going to be, so they can be on their alert:  Mr. Mortenson will chair the subcommittee, Dr. Geddes will be a member of the subcommittee, and Mr. Conklin will be a member.  That will make sure that we have people who are concerned about the issue and have had an opportunity to listen to the testimony.

 

I know that I am not going to be able to hear everybody who has signed up; there is no possible way.  We have to deal with the M’Naghten defense today and we have been in hearing now since 8 a.m.  We need to get to those of you who signed in; we will try to get to as many of you as we can.  So we have another 10 minutes to go.

 

Mustapha Hatab, Forensic Toxicology Supervisor, Quest Diagnostics Incorporated:

[Introduced himself.] I did some numbers at the request of Gary Booker and Bruce Nelson.  We analyze blood samples for some local law enforcement agencies.  What I did was go back to the beginning of the year 2003, for the first 11 weeks of the year; we analyzed several hundred blood samples for DUI purposes (Exhibit J).  Only 117 tested positive for THC.  Those 117 went to confirmation and I chose only the ones that tested positive for THC, no blood alcohol and no other drugs.  Forty-three of the 117 tested positive for only THC.  Only 2 out of those 43, actually only 2 out of the 117, had a level greater than or equal to 20 ng/mL.  Thirty-four out of the 43 had less than 10 ng/mL of THC, 19 had less than 5 ng/mL, and 17 had less than 3 ng/mL.  Due to the shortage in time, I will have Dr. Hiatt and Dr. Ray Kelly take it from here.

 

Dr. Ray Kelly, Forensic Toxicologist:

I am pleased to have the opportunity to speak today in opposition to A.B. 362.  I am self-employed as a forensic toxicologist in Henderson, Nevada.  I am a diplomat of the American Board of Forensic Toxicology with over 25 years of experience in the field.  I have a Bachelor of Science degree in biochemistry from Washington State University, a Ph.D. in chemistry from the University of Oregon, and am licensed as a laboratory director in the states of California, New York, and Nevada.  I have authored over 20 scientific publications and I have directed large private sector toxicology laboratories including the lab known as Quest.  I am currently the lab director for National Medical Services in Alameda, California.  I have testified dozens of times in adversarial settings, including both civil and criminal matters, in state and federal courts in California, Nevada, Arizona, Colorado, Idaho, Oregon, and Ohio. 

 

As part of my professional activities, I testify on the effects of marijuana on driving.  Marijuana acts as a central nervous system depressant and a mind-altering drug that causes impairment of judgment, attentiveness, and muscular coordination; its use leads to unsafe driving.  Marijuana’s adverse effects on psychomotor skills required for driving last a minimum of three to six hours after use; these effects are well documented in over 25 scientific papers and peer‑reviewed literature.  They also appear frequently in the cases I have reviewed.  [Marijuana] produces driving behavior such as weaving, lack of attention, failure to appreciate risks, leaving the lane of travel, and collisions with other vehicles or fixed objects.  In my personal cases alone, I have encountered numerous deaths caused by marijuana-impaired drivers. 

 

I believe the law we are discussing today saves lives by discouraging individuals from driving under the influence of marijuana.  The proposed changes I would make would be to raise the actual level for tetrahydrocannabinol, or THC, the active component of marijuana, to 20 ng/mL; I heard something earlier to the effect that maybe that’s 15 ng/mL.  Also, it would eliminate carboxy-THC, the metabolite, from coverage by the law.  The net result of these changes will make it impossible to prosecute cases of driving with prohibited levels of marijuana components in one’s system. 

 

Blood specimens typically are collected an hour or more after an accident or incident.  Since marijuana use occurred sometime before that, it usually has been one to four hours since use occurred.  The figure I have attached to this presentation (Exhibit K) shows the way blood concentrations of active component THC and the metabolite carboxy-THC vary with time after use, based on averaging data from a number of smokers.  Normally, THC is detectable in blood using standard tests for less than two to four hours.  Levels of THC above 20ng/mL are found for less than an hour after use of the drug, and thus would rarely or ever be encountered in a real-world scenario.  Furthermore, removing carboxy-THC from the law would prevent the identification of those drivers whose marijuana use could have been established even though the THC was below the action level.  Since impairment lasts three to six hours, it is not necessary for a person to have THC detectable in blood on a post-accident blood test to be impaired at the time of driving.

 

In summary, these changes would make the driving with prohibited substances law completely useless for addressing marijuana-impaired driving.

 

Dr. John Hiatt, Clinical Chemist and Toxicologist, Quest Diagnostics Incorporated:

[Introduced himself.]  I have been in that position for 27 years.  We have heard testimony today about values, some of which came from our lab, others from the LVMPD lab here in Las Vegas, and the Washoe County Sheriff’s Department Crime Lab.  All of those figures basically say that values above 20 ng/mL will rarely be found.  One of the things we need to recognize is that alcohol is one of the very simplest of drugs in terms of its metabolism, and to try to equate every other drug to alcohol is probably a mistake because we can’t do it physiologically.  Therefore, I think we are well served with the present law, which provides a high enough level that we know that we are not into a problem of differences between laboratories in terms of technology and measurement, but we are still in the area where we will detect impairment or impairment at the time of the accident.  So, I would urge you to reject A.B. 362 as being contrary to the public interest of the state of Nevada.

 

Assemblyman Carpenter:

At what level are people impaired?

 

Dr. John Hiatt:

I think the testimony we have heard today basically says, in the context of making measurements after arrest for DUI or post-accident, it may be almost impossible to say exactly what that level of impairment was because of the complicated physiology of the drug.  However, we know that there is impairment after the use of marijuana.  If we have a reasonable level to ascertain that, we can detect the drug.  Then we know that it was present during the period of time in the blood that the offense or accident or whatever took place, and that would be reasonable presumption of a problem in terms of prosecution.

 

Dr. Ray Kelly:

First, it is the drug in the brain that impairs you, not the drug that is in the blood.  Secondly, I would remind everybody, impairment is assessed by the traditional three-legged stool, which is driving behavior, the performance on the field sobriety test, and the toxicology testing.  You are not trying to establish impairment based only on a drug test.

 

Gerard Mager, Relative of victim:

We are victims of a driver using drugs prior to the 1999 law that was passed.  Our son was killed; he was 17 years old.  There was no prosecution, even though they found marijuana in the driver’s system.  This is a bad law, a bad bill, it shouldn’t even be considered.  To me it seems like a back-door effort to circumvent the will of the people who voted against legalizing marijuana.  Marijuana is illegal, it has no place on the highways at any level.  This bill should be rejected.

 

Illona Mager, Relative of victim:

I am the mother of Steven Smith, who was killed.  He was 17 years old and he was my only child.  I don’t know how many funerals you have gone to for 17‑year-olds, but they shouldn’t be.  The reason he died was because of a choice to use drugs and drive; not because of some devastating illness, not because of something that is impossible to cure.  You, the Legislature, have the power to pass laws to curb people’s choices to use drugs and drive.  This bill, A.B. 362, assists not the innocent, but the guilty, and provides another loophole where people who use drugs can fall through the cracks without penalty.  I live every day thinking of my son; that’s a life commitment of punishment due to the driver that didn’t respect his life.

 

Brittany Faber, Relative of victim:

I am 14 years old; when I was 8, my dad was killed by a driver high on marijuana.  This was prior to the law that was passed, and the driver got away with six months’ house arrest and five years’ probation; he didn’t even go to jail for it.  Tomorrow is my 15th birthday; it will be my 7th birthday without my dad.  This whole time, we have been trying to find laws or trying to find some way that these people that make these choices and kill innocent people will be punished for what they do.  They choose to do this and it’s a foolish choice; then they get away with it.  We just think that this bill, A.B. 362, is ridiculous because it allows them to get away with it more.  They have gotten away with it enough; it needs to stop.

 

Angela Faber, Relative of Victim:

I am Brittany’s mother; William Faber was my husband.  He was killed February 13, 1997.  As she said, the man that killed my husband served probation.  This is affecting many people, thousands.  We are killing people and nothing is happening.  This bill is going to send it right back to where it was before we changed the law.  We worked hard, all of us, to make this so that people are responsible for their actions.  We just don’t want it to go back; we want it to move forward.

 

Gary Thompson, Relative of victim:

I am here to speak in opposition to A.B. 362 for four reasons:

 

1.      I agree with a prior speaker that this is nothing more than an attempt to subvert the will of the people who voted overwhelmingly against Question 9.

 

2.      This proposal sends a message to the people of this state that it is OK to drive under the influence of marijuana.

 

3.      The consequences of this are horrible for the people of the state to bear.  There will be more deaths, more crippling injuries, and the insurance companies are going to look at this as an opportunity to raise rates.  It would be the same thing as if we raised the threshold for drunk driving to 3.5 BAC.

 

4.      On August 9, 2002, my wife, Sandy, was killed by someone who was driving under the influence of marijuana.  Under this bill, he would be walking around or driving on our streets today instead of in prison, where he is because of the current law.

 

Maggie Saunders, Traffic Safety, Pedestrian and Bicycle Safety, Safe Community Partnership:

We would like to go on the record as being opposed to A.B. 362.

 

Carol Grant, Relative of victim:

I live in Boulder City, in Clark County; I am the mother-in-law and grandmother of Toni and Brittany Faber.  It was my son who was killed by a driver, 18 years old, that was high on marijuana.  At the time this happened in 1997, there were no laws that could give any justice to our family whatsoever for this young boy having killed our son.  I would just like to say that when people are killed by drivers, either on alcohol or drugs, they don’t kill one person, they kill an entire family.  For the rest of your lives, you suffer and go through this.  On S.B. 481 of the 70^th Legislative Session, we worked closely with former State Senator Jon Porter and former State Senator Mark James, and we know that they thoroughly investigated this and called in experts; they didn’t do this lightly, they did their homework.  We were absolutely elated when the bill was passed and signed by the Governor.  Since this has happened, the very first year, in fact, there were numerous opportunities for the district attorney’s office, having this new law, to prosecute these people that were driving under the influence of marijuana.

 

Dan Grant, Relative of victim:

Bill Faber was my son.  My wife said we fought hard for this bill.  When we suffered our loss, the prosecution was unable to do a thing.  Needless to say, the kid walked.  We fought; we gave our district attorney tools to apprehend the ones that are guilty.  Let’s not take it away from them; their hands are tied enough the way it is.  Give them a fighting chance.

 

Erin Breen, Director, Safe Community Partnership:

We are in opposition to A.B. 362 for the main reason of putting more impaired drivers on our streets throughout Nevada and Las Vegas.  I would like to point out to you that in the year 2002, we had the most deadly record for fatalities in the state of Nevada.  For the last two years, impaired driving fatalities for the first time over the last 15 years are heading in the wrong direction, which is up.  This sends a bad message; it says that we feel it is OK for drivers to drive under the influence of what is in fact an illegal substance.  We think for that reason you should not pass this bill.

 

Chairman Anderson:

That concludes everybody that is signed in to speak on the legislation, both in the north and the south.  So, I can close the hearing on A.B. 362, and direct Mr. Mortenson, Mr. Geddes, and Mr. Conklin to look at the bill.  If you want to hold another hearing on it, you surely can.  We note the changes recommended by the author of the bill, changing the nanograms from 20 ng/mL to 15 ng/mL.  I recommend those for your examination, if you are going to proceed with the bill.  I would ask you, if you are going to hold another public hearing on the bill, Mr. Mortenson, try to hold it so that we would have the bill ready by the middle of next week.

 

Let’s turn our attention to the final bill of the day, Assembly Bill 156, which is an issue that I believe we have to deal with.  This was one of the issues that were brought to us by Ms. Lang at the very beginning of our session relative to a recent Nevada Supreme Court decision dealing with the so-called M’Naghten Defense.

 

Assembly Bill 156:  Abolishes plea of guilty but mentally ill and reinstates exculpation by reason of insanity. (BDR 14-131)

 

Risa Lang:

There is a letter being distributed (Exhibit L) with a couple of articles and a chart attached.  Chairman Anderson asked me to provide an overview of the issues related to A.B. 156 for the Committee.  That document provides an outline of those issues.  You may want to look that over as I go through this with you.

 

This bill was drafted at the request of Chairman Anderson on behalf of the Committee to address the holding of one of the cases we discussed during the first week of session.  The case is Finger v. State, which was decided in 2001.  Prior to 1995, Nevada law provided for an insanity defense.  It was an affirmative defense with the burden on the defendant to prove insanity by preponderance of the evidence.  In 1995, the Nevada Legislature considered changes to the insanity defense in response to several concerns that were raised by prosecutors.  As a result, the Nevada Legislature passed S.B. 314 of the 68^th Legislative Session, repealing the provisions of Nevada law that provided for insanity as a complaint defense to criminal offenses.  In its place, S.B. 314 of the 68^th Legislative Session created the plea of “guilty but mentally ill.”

 

The Nevada Supreme Court held in the Finger v. State case that S.B. 314 of the 68^th Legislative Session was an unconstitutional violation of due process guarantees because it allowed a person to be convicted of a criminal offense in circumstances where the person lacked the mental capacity to form the necessary intent to commit the time.  The Court acknowledged that the Supreme Courts of three other states, which had abolished the insanity defense, found that there was no constitutional right to assert an insanity defense.  The Court also noted that the United States Supreme Court has not determined this issue. 

 

[Risa Lang continued.]  However, the Nevada Supreme Court disagreed with the Supreme Courts of those three states, and held that S.B. 314 of the 68^th Legislative Session should be rejected in its entirety.  The Court further held that all prior versions of statutes amended or repealed by S.B. 314 of the 68^th Legislative Session remain in full force and effect.  Because of the decision in Finger v. State, the laws as codified in the Nevada Revised Statutes concerning the plea of guilty but mentally ill are no longer enforceable.  In addition, the Court revived the previous laws concerning the insanity defense.  Thus, those laws, though not codified, may be relied upon for purposes of asserting that defense.  For that reason, Chairman Anderson, on behalf of this Committee, requested the drafting of A.B. 156 to codify what the Nevada Supreme Court declared in Finger v. State to be the current law.  Therefore, A.B. 156 abolishes the plea of guilty but mentally ill, reinstates exculpation by reason of insanity, and provides a procedure for committing a person who is acquitted by reason of insanity to a mental health facility.

 

Next, I am going to explain the provisions of A.B. 156, and then I am going to briefly review the policy decisions before the Committee.  Finally, I will review the various theories that have been advanced for determining legal insanity. 

 

Assembly Bill 156 consists of 71 sections.  The majority of these sections remove references to the term “guilty but mentally ill.”  The remaining sections make the substantive changes that were necessary to return the laws to pre-1995 status.  I will point out where these substantive provisions are in the bill so that you can find them easily. 

 

Section 4 amends NRS 174.035 to remove the plea of guilty but mentally ill from the types of pleas that are available to a defendant.  In addition, this section is amended to provide that a defendant, in the alternative or in addition to any of the permissible pleas, may plead “not guilty by reason of insanity.”  Under this plea, the defense has the burden of proving insanity by a preponderance of the evidence.

 

Section 9 adds a new section to Chapter 175 of NRS to provide the procedure for committing a person who has been acquitted by reason of insanity to a mental health facility. 

 

[Risa Lang continued.]  Section 26 amends NRS 178.460 to provide that a person who is committed to the custody of the Administrator of the Division of Mental Health and Developmental Services may not be held in custody for longer than the longest period of incarceration provided for the crime with which he is charged or 10 years, whichever is shorter.  After that time, the person must be returned to the court to determine whether he must be involuntarily committed.  This will apply to both people committed for insanity or a person committed because they cannot assist in their own defense.

 

Section 35 amends NRS 193.210 to clarify that a person is not “of sound mind” if he is “affected with insanity.”

 

Section 37 amends NRS 194.010 to provide that a person is not liable for an act or omission committed while in a state of insanity.

 

Section 57 amends NRS 616A.250 to provide that the definition of “incarcerated” includes being confined in an institution or facility for the mentally ill as a result of a plea of not guilty by reason of insanity.

 

Section 69 repeals NRS 174.041, NRS 176.127, and NRS 176.129.  Those sections were new sections when the guilty but mentally ill statutes were adopted, and provide various procedural matters relating to that plea.

 

Assembly Bill 156 proposes to revive the insanity defense and amends the Nevada Revised Statutes to its pre-1995 status concerning the insanity defense, which is, as indicated earlier, the current state of the law as ordered by the Nevada Supreme Court.  However, although the Nevada Supreme Court held that the insanity defense could not be abolished, it left certain policy decisions related to that defense for the Legislature to determine.  The Court held only that due process requires the insanity defense be available.  However, the Legislature may determine the manner of pleading, proving, and defining the insanity defense.

 

For example, in Section 4 of A.B. 156, you will see that the insanity defense is revived.  However, that section does not define insanity.  Before 1995, the courts had adopted what is referred to as the M’Naghten Rule, which I will go over in a little while with you.  That Rule was adopted by the courts, not by the Legislature.  The M’Naghten Rule now applies unless the Legislature provides otherwise.  In addition, before 1995, the issue of insanity was required to be proven by a preponderance of the evidence.  However, the appropriate burden of proof is a matter of policy for the Legislature.  Thus, the Legislature may keep the burden of proof as a preponderance of the evidence, or may apply a higher burden, such as clear and convincing evidence or proof beyond a reasonable doubt.  In addition, the procedure for a committing a person innocent by reason of insanity to a mental health facility may also be determined by the Legislature. 

 

[Risa Lang continued.]  Therefore the Legislature may decide any of those issues and may consider any other manner of addressing the pleas, verdicts, and defenses in this state.  The only limitation placed on the Legislature by the Nevada Supreme Court in Finger v. State is that the insanity defense may not be abolished. 

 

Next, to assist the Committee in the discussion of these issues, I am going to outline the various theories that have been used to determine whether a person is legally insane.  There are four legal theories that have traditionally been advanced for determining when insanity may be used as a legal defense.  Those theories are referred to as:

 

• The M’Naghten Rule
• The Irresistible Impulse Test
• The Durham Rule
• The Model Penal Code Test

 

The Nevada Supreme Court has stated that the M’Naghten Rule is the standard to be used by courts in this state until a different standard is adopted in statute by the Legislature.  The rule, also known as the “right and wrong” test, provides that if a defendant did not know either the nature or quality of his act or that the act was morally wrong because of a defect of reason or disease of the mind, the defendant cannot be held criminally responsible for his actions.  Although the M’Naghten Rule seems to provide two alternative ways to assert an insanity defense, the Nevada Supreme Court provided in Finger v. State that “delusional beliefs can only be the grounds for legal insanity when the facts of the delusion, if true, would justify the commission of the criminal act.”  Thus, when the delusion, if true, would not present a legal defense, then the person may not assert the defense.  Under this application of the rule, if a defendant claims his delusion led him to believe he was acting in self-defense, he could be found innocent by reason of insanity.  However, if the defendant claims his delusion led him to believe that he had to kill someone because there was a conspiracy against him, he would not be excused because even in his delusional state he was not acting pursuant to an imminent threat which would allow him to claim self-defense.

 

Some jurisdictions have implemented the M’Naghten Rule together with the Irresistible Impulse Test.  Under this test, a person may assert the insanity defense even if the person knew the nature of the act and that it was wrong, but demonstrates that he was forced to act by an impulse that he was powerless to control.  Therefore, if a defendant commits a criminal act as the result of sudden brief loss of control, he may assert the insanity defense under this test.  Some jurisdictions have incorporated the Irresistible Impulse Test into the M’Naghten Rule by saying that a person may assert an insanity defense if an irresistible impulse rendered the person incapable of differentiating between right and wrong.  The Court in Finger v. State gave the following example of the Irresistible Impulse Test:

 

If a person was under a delusion that God wanted certain people killed and, based upon hearing the voice of God, that individual immediately began killing people around him, then that person would be legally insane under the Irresistible Impulse Test, but not under the M’Naghten standard.  The individual knew that he was killing human beings and that he was not authorized by law to take a human life, but he could not resist what he perceived to be the will of God and acted under the impulse of his delusion.

 

[Risa Lang continued.]  The Durham Rule was established by the United State Court of Appeals for the District of Columbia in 1954 and was followed by that Circuit until 1972.  The rule provided that if a person had a mental defect or disease and that mental defect or disease was the cause for the unlawful action, then that person could not be held criminally liable for the act.  The Court in Finger v. State summarized the Durham Rule by stating:

 

“Under the Durham standard, individuals were legally insane if they would have committed the criminal act but for the existence of a mental disease or defect.” 

 

In other words, if I did not have a delusion, I would not have committed the criminal act.

 

This rule has been overturned by the District of Columbia and is not used in any other state currently.

 

The Model Penal Code Test was developed by the American Law Institute and has been widely adopted by states.  This test provides that a defendant may assert the insanity defense if at the time he committed the criminal act, as a result of mental disease or defect, he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. 

 

The Model Penal Code Test, sometimes referred to as the “substantial capacity test,” applies parts of each of the other insanity tests.  Under the Model Penal Code Test, a person who thinks, for example, that he is shooting at a target shaped like a human being or who thought he was a soldier in the middle of a battlefield and that the individuals he was killing were enemy forces would meet the criteria of the Model Penal Code Test, as well as the criteria of the M’Naghten Rule.  Such a person would not appreciate the criminality of his act pursuant to the Model Penal Code Test. 

 

[Risa Lang continued.]  Additionally, a person who, for example, was under the delusion that God wanted a certain person killed, and based upon hearing the voice of God, killed that person, would be legally insane under the Model Penal Code Test, as well as the Irresistible Impulse Test, but would not be legally insane under the M’Naghten Rule.  However, the part of the Model Penal Code, which provides for the inability to conform conduct, is generally not interpreted as broadly as the Irresistible Impulse Test.

 

Finally, “guilty but mentally ill” has now been struck down in this state.  We know that in four other states the plea of not guilty by reason of insanity has been abolished.  In Idaho, they provide that a mental condition is not a defense to any charge, while Montana, Kansas, and Utah provide that evidence of a mental defect may negate an element of an offense.  In addition, Utah provides for a plea of guilty and mentally ill and a verdict of guilty and mentally ill.  The Supreme Courts of three of those states have upheld their statutory schemes.  I would also mention that some states have made available a verdict of guilty but mentally ill in addition to allowing an insanity defense, which could also be an option in this state.  Again, the only requirement is that you not completely abolish the insanity defense.

 

In conclusion, the Nevada Supreme Court held in Finger v. State that it is unconstitutional to abolish the insanity defense.  In addition, the Supreme Court held that the laws, as they existed prior to 1995, are again the law of the state.  Assembly Bill 156 was drafted to codify the current law as ordered by the Nevada Supreme Court.  However, the Legislature may wish to consider other ways in which to address the manner in which the insanity defense is pleaded, proven, and defined.

 

Chairman Anderson:

It is a difficult issue for us, I think; it was a difficult issue when we moved away from it, even at the time.  If we do nothing, we are left with the Nevada Supreme Court decision, which in reality takes us back.  If we are of the opinion that we need to do something, which is what I believe we need to do, we should try to participate in coming up with a better system, if we can.  Then we should move forward and do that.  If we are going to…if you want to codify what the old law was, that’s fine.  If we do nothing, we end up with that anyway.  The difference would be that we just would be setting forth in statute in addition to clearing up any ambiguity that might be there.  The choices then are in front of us, and we are going to have to think about it.  It is not going to be an easy fix.  I know it is coming late here, toward the end of the box, and if we are going to move this into a subcommittee, it is my intention to put myself and Dr. Mabey, and I haven’t decided who the third person would be on it.  I would like to use it to try to find something.

 

Elizabeth Neighbors, Ph.D., Director, Lakes Crossing Center (LCC), Division of Mental Health and Developmental Services, Department of Human Resources:

[Introduced herself and submitted Exhibit M.]  Lakes Crossing Center is the facility that is designated to care for mentally ill offenders.  I am here today to testify in support of A.B. 156.  We do feel that the bill needs to go forward.  We have some comments about how it may affect us and some changes that we would seek to have considered in the way that it is presented. 

 

We anticipate that this change will have a significant impact on our facility, as well as other governmental agencies in the state of Nevada.  As Committee members may be aware, Lakes Crossing Center has not housed NGRI (not guilty by reason of insanity) acquittees since 1995, when the plea was abolished.  The primary mission of our facility has always been reassessment and treatment of defendants for whom there is a question of competency to stand trial.  Since 1995, that has been the only mission of the inpatient program; we do have a significant outpatient program now, with the extremely rare exception of administrative transfers. 

 

This change in statute has the potential of altering the dynamics of the facility in a number of significant ways.  The following are ways in which we see our program potentially changing:

 

1.      As NGRI acquittees enter the facility, the number of beds available for assessing and treating clients ordered by evaluation/treatment to competency will decrease.  As time goes on, if these estimations prove to be correct, the new wing we have added to accommodate pretrial committees may be entirely utilized by individuals committed as NGRI.  That was a 12‑bed addition that we opened at the end of 1999, early 2000.  The fiscal note that we have provided for this bill makes projections of no significant fiscal impact over the next biennium based on the 211-day average length of stay of the previous 29 NGRI commitments between 1976 and 1995. 

 

We have estimated that, conservatively, there will be, if this goes forward, as apparently it must, three NGRI acquittees ordered to our facility each year.  If the length-of-stay figure maintains, the discharge rate will somewhat mitigate the accumulation of these clients and their displacement of pretrial commitments.  These estimations are based on prior commitment statistics for NGRI acquittees when the statute was previously in force.  The estimations also consider the variable of population growth rate in the state.  It is unclear whether these statistics will still pertain in the present, given the change in national thinking regarding the management of mentally ill offenders. 

 

[Dr. Elizabeth Neighbors continued.]

 

Clearly, other states such as California and Colorado have experienced a broader use of this law than Nevada did in the past.  In those states, defendants charged with a broad range of offenses utilize this plea.  Thus, it is unclear how many defendants may seek to enter this plea and ultimately be confined in our facility.  It is also unclear what the length of stay will be, particularly if the offenders committed very serious crimes and are seriously mentally ill, although I note there is the 10-year limit that was in Ms. Lang’s summary.  In Colorado’s forensic facility, the average length of stay is 8 years, according to an August 2002 article in the Denver Post.  It is not unlikely that these individuals may fill beds to the degree that waiting lists are created in the detention centers for defendants waiting to be assessed and treated for competency.  We are capped at the present time at 48 beds, so we have to serve the entire state with that inpatient census.  I did not mention that we do serve all 17 counties in the state of Nevada.  The way that the bill is drafted, we would presume that would be our task with these individuals.

 

2.      Clients committed under NGRI have a completely different goal for treatment than pretrial committees.  They have already been acquitted of their crime and cannot be tried again for that offense.  They have had to achieve a determination of competency in order to enter their plea, so it is clear that they understand the legal system and their legal situation.  Consequently, their goal in treatment is to return to the community without posing a risk to the community, as opposed to other clients in the facility whose goal is to return to court and adjudication of their charges.  These two situations require different treatment programs and treatment planning.  It is clear that programs for these NGRI individuals will place a significantly greater burden on the social work department of our facility.  It is likely that they will be tasked with training these individuals in social skills and developing outpatient services for their discharge when that occurs.

 

3.      In keeping with the prior comments, we have a concern about the provision in Section 9 that requires two examiners to determine the mental status of the defendant once he/she has been determined not guilty by reason of insanity.  The bill proposes that two examiners be appointed and suggests that these would be other than state-appointed examiners, at least in some instances.  We propose that it would eliminate a duplication of service if Lakes Crossing examiners would be appointed in these instances, since LCC must examine the individual on admission anyway.  One of our requests is that this facility be designated for the Division, as the Division perceives that would be the most appropriate agency to deal with these people as they are coming out of court.  This appears to us to be a costly duplication of services that accomplishes very little if the person is transferred to Lakes Crossing Center.  We would suggest that this duplication be eliminated and the state be allowed to make this assessment and determination.  We would be doing that for their treatment and housing in the facility anyway and would have the best vantage with which to do that assessment.

 

[Dr. Elizabeth Neighbors continued.]

 

4.      The cost of housing an NGRI acquittee for one year at Lakes Crossing is about $110,387 a year per client.  Most of our clients do not reside in our facility for long periods of time, much less many years.  The average length of stay is approximately 90 to 100 days, at the present time, although clearly there are people who stay there much longer than that.  This cost is dramatically different than housing such a client in a detention center or prison.  Nevada has been housing individuals adjudicated guilty but mentally ill at the prison with associated costs.  Should a new trial successfully result in an NGRI determination for any of these individuals, the cost will be shifted to the Division of Mental Health and Developmental Services from the Department of Corrections at the above rate.

 

These are the primary concerns that we have for our facility.  Beyond that, we did not have other requests for changes in the bill.  We certainly would be happy to answer any questions you might have.

 

Chairman Anderson:

So the purpose of going to Lakes Crossing is merely for the testing, but not the full-time or long-term incarceration of this individual, which might be better facilitated at another state institution. 

 

Betsy Neighbors:

The way that the bill reads, it follows NRS 178, which would indicate that they would be housed in our facility for the long-term until there was a determination by a judge and the administrator that they were appropriate for release. 

 

Chairman Anderson:

If we were to amend this bill as you have suggested, it would not give you the ability to move them to another facility, even if it might be in the best interests of the state and the individual to do so?

 

Betsy Neighbors:

We are not requesting that.  I might leave that question to Mr. Irvin.

 

Ed Irvin, Deputy Attorney General, Office of the Attorney General, assigned to represent the Division of Mental Health and Developmental Services:

I don’t believe that the bill directly answers your question.  It is my interpretation that the bill allows for what you have suggested.  However, it would have to go to court for approval.

 

Chairman Anderson:

It seems to me, as it was drafted, it was to a mental health facility or hospital. 

 

Ed Irvin:

I believe that is only for the 90-day period for determination as to whether the defendant is to be maintained.

 

Chairman Anderson:

Did you have other information that you wanted to give the Committee before we adjourn to the Assembly Floor?  [Mr. Irvin replied in the negative.]

 

Ben Graham, Legislative Representative, Nevada District Attorneys Association:

In the interest of brevity, we have been working with Mr. Brooks, who is here from Las Vegas, and others on the legislation.  We proposed a couple of amendments (Exhibit N) dealing primarily with the issue of notification of the intent to use the insanity defense, then with regard to the standard of the burden of proof that is required to reach that verdict, from “preponderance of the evidence” to “clear and convincing” and to “beyond a reasonable doubt.”  That’s where we have some disagreement, where some prosecutors feel that it should be beyond a reasonable doubt, and probably the majority of the defense counsel believe it should be a preponderance of the evidence.  In essence, we have agreed, as the group of attorneys that work with this, Ms. Lang did an excellent job going through this.  This reestablishes and codifies the M’Naghten Rule and brings forth probably 260 years of history. 

 

The main reason we got into this in 1995 was that the Supreme Court in Nevada had wandered to the point where a former sister-in-law said that the defendant was acting crazy two or three days before the crime was committed, and the Supreme Court said, “That’s good evidence of insanity; send it back down for retrial.”  It had to go back down for retrial and subsequently had a guilty verdict again.  I think this is a case where I would like to recognize Mr. Brooks being here and we are pretty much on board with this.

 

James J. Jackson, Nevada Attorneys for Criminal Justice:

Very briefly, with respect to the concern about the fiscal impact on the state of Nevada, I would submit that, first of all, one of the first steps that is going to happen is a determination of competency of a defendant.  That’s not going to change under this bill; it’s still going to have to go through that.  With respect to the ongoing care and treatment of a NGRI-acquitted defendant, you will hear from Mr. Brooks, and I can add to this as well, in my time as a state public defender we did not have a single not guilty by reason of insanity determination by a jury in the state of Nevada in the rural areas.  According to my conversations with Mr. Brooks, there have been four such verdicts in the state of Nevada through the Clark County Public Defender’s Office in 35 years.  So I think the fiscal impact is exceptionally minimal when you consider that, extrapolated over time, not withstanding the fact that our Supreme Court has given us clear direction, we have to address this issue.  With that, I am going to turn it over to Mr. Brooks, who is certainly, I would consider, an expert in this field, given that he defended that case [Finger v. State].

 

Howard Brooks:

[Reintroduced himself.]  I was the attorney in Finger v. State when the Nevada Supreme Court ruled that the current situation is unconstitutional and we need to bring back an insanity defense.  Assembly Bill 156 is an excellent bill; I really applaud the staff for the way they prepared it.  It is comprehensive and it does exactly what needs to be done; it takes us back to pre-1995.  As far as the concerns of the District Attorney, back in 1995 they came forward with concerns.  Every concern they came forward with in 1995 was addressed in the Finger v. State decision.  The Nevada Supreme Court narrowed the circumstances where the insanity defense can be presented to a jury, so they took care of the District Attorney’s concerns.  

 

As far as the amendments proposed by Mr. Graham, I have no problem at all with the notice provision.  The burden of proof issue, however, is more complicated.  The fact is that roughly 30 to 40 states use the preponderance of evidence standard.  This defense is one that juries can’t stand.  We went back and checked the records of our office: four verdicts in 35 years of not guilty by reason of insanity.  I personally have taken an insanity case to trial where I had experts who could testify that my client was insane.  The state presented absolutely no evidence contravening that testimony and the jury still came back guilty of the crime. 

 

I am stunned at the estimate by the Office of the Attorney General of three verdicts per year.  I would love to see the documentation for that; I can’t imagine that’s true. 

 

With regard to another provision that was proposed by the District Attorney as far as an amendment, they are suggesting a change in NRS 178.400 because they are concerned about some of the language affecting punishment, whether a person can be punished if he is not competent.  I thought it was very interesting quirk that they found; I have no problem with the changes that they proposed as far as that goes.

 

As to their fourth proposal regarding NRS 194.010, where they discuss a change in the “who is liable” statute, I am not sure that is exactly the same issue we are addressing.  I don’t think it should be something the Legislature should address now, because I believe there are other statutes that address the same issue.  I am afraid that if you work on that now, we are going to have one statute say one thing and another statute saying something else.  I would suggest that you ignore that proposal.

 

In any event, A.B. 156 is a great bill.  I think it is wonderful that you are taking it on.

 

Richard L. Siegel, Ph.D., Professor, Department of Political Science, University of Nevada, Reno; and President, American Civil Liberties Union (ACLU) of Nevada:

I appreciate the work that the Nevada Supreme Court has made in the drafting of this bill.  I only want to say that if we do go with this bill, the net result is that we will still not have adequate protection for the seriously mentally ill in the state of Nevada.  The M’Naghten Rule allowed one woman to be sentenced to death who had spent 30 years in a psychiatric hospital, and four people, you know that many more than four people are seriously mentally ill, who have committed murders in Clark County over the years.  Maybe the only point of my testimony and your hearing it would be to suggest to you that this bill is a very moderate compromise and it should be accepted.  But I can’t, in good faith from the point of view of the ACLU, say that this is the solution to the problem of the seriously mentally ill facing serious criminal issues.  We do support preponderance of the evidence in these cases.  We do think that it shouldn’t be impossible for people to demonstrate that they are seriously mentally ill.  I would like, the ACLU would like you to adopt the Model Penal Code Test, which a number of states have done, which would make this available to people who have committed serious crimes, who are psychotic and have been diagnosed as psychotic over a long period of time, which the M’Naghten Rule simply does not do.  The M’Naghten Rule is designed to convict people who have been diagnosed as psychotic, treated as psychotic for long periods of time, and still find them guilty for serious crimes.  As the president of the ACLU, I cannot endorse that.

 

Assemblyman Brown:

What was the prior standard before 1995 for the burden of proof?  Was it clear and convincing or preponderance of the evidence?

 

Howard Brooks:

In Nevada, it has always been preponderance of the evidence, as it is in approximately 40 other states.

 

Chairman Anderson:

Any other questions from members of the Committee?  Anybody else wishing to testify on A.B. 156?  Let me close the hearing on A.B. 156.  I am going to bring it back and give it to myself and Dr. Mabey; we will be a subcommittee of two.  We will listen to this and try to report back to you.  Is that OK with you Dr. Mabey?  We are going to expand your practice into a new area. 

 

Glen Whorton, Assistant Director, Operations, Northern Nevada, Department of Corrections:

I appreciate your indulgence; I am here this morning to apologize.

 

Chairman Anderson:

I had not realized that you were planning on doing this in front of the Committee today.  I thought you were planning on doing by letter.

 

Glen Whorton:

No, sir; I prefer to do this face to face.  Last week the Committee heard a bill that was put forth by Assemblyman Josh Griffin regarding the testing of people going out on parole.

 

 

Assembly Bill 209:  Requires testing of prisoners to detect presence of controlled substance in their systems before consideration for and release on parole. (BDR 16-1069)

 

There was some confusion between that bill and the fiscal note, and that confusion was the result of a mistake that I made.  I gave Mr. Griffin incomplete information, I did not follow up after my initial discussions with him, and that caused the confusion that you saw in here last week.  I apologize for that.  I have apologized to Mr. Griffin and he has graciously accepted that.  I might indicate that he’s appreciative of the fact that drug testing for people who are going out on parole is occurring. 

 

Assemblyman Geddes:

Is it a condition of parole?  Is the data used at the parole hearing, even if it is not a condition?

 

Glen Whorton:

It is not used as a condition of parole; it is a program that is carried out when a person is given a parole, then they are tested at some point prior to the release.  If they test positive, then they are referred back to the Parole Board and the Board will make a decision whether to continue with the parole grant or to rescind that previous order.  So it is not a condition, the test is not a condition of appearing before the Parole Board.

   

Assemblyman Geddes:

So does the Parole Board have the data in front of them when they decide?  [Mr. Whorton said, “No.”]  They would get the results after the fact?

 

Glen Whorton:

That’s correct, if it is a positive.

 

Assemblyman Conklin:

Of those that are granted parole where you have received a positive test, can you give us some idea of how many of those wind up back in prison because of violation of their parole, because I am going to assume that all parolees must remain clean?  You are going to test them once they get out into the field anyway.

 

Glen Whorton:

That’s a difficult question.  The way our statistics work, we have a generalized number of tests that are taken.  Then we break those down into categories, whether it’s for program, for cause, or part of our random sampling that occurs.  But in terms of the actual results in terms of the positives, we only had 222 out of over 13,000 last year.  Those positives are not tied to that specific category of testing, whether it is for parole or for programs.  So we can’t tell you how many people that were parole released did test positive.  Therefore, I can’t tell you the outcome of what happened at the board subsequently when they were taken back.  We discipline them, we refer them back to the Parole Board and, in some cases, they lose their statutory good time credits.  They lose some of that based on that misconduct.  But I can’t stretch that out and say how many are coming back.

 

Chairman Anderson:

I know that we have some other questions that we had asked our researcher to look at relative to that piece of legislation; I am sure she will be in contact with you. 

 

Anything else to come before the Committee today?  We are adjourned [at 11:10 a.m.]

 

 

RESPECTFULLY SUBMITTED:

 

 

 

                                                           

Deborah Rengler

Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Assemblyman Bernie Anderson, Chairman

 

 

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