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Assembly Bill No. 34–Assemblymen Conklin and Anderson

 

Prefiled January 30, 2003

____________

 

Joint Sponsor: Senator Amodei

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Provides that once person has been convicted of felony for operating vehicle or vessel while under influence of alcohol or controlled substance,
any subsequent violation is treated as felony. (BDR 43‑137)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: Yes.

 

~

 

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

 

AN ACT relating to substances causing impairment; providing that once a person has been convicted of a felony for operating a vehicle or vessel while under the influence of alcohol or a controlled substance, any subsequent violation is treated as a felony; providing penalties; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. NRS 483.460 is hereby amended to read as follows:

1-2  483.460  1.  Except as otherwise provided by specific statute,

1-3  the Department shall revoke the license, permit or privilege of any

1-4  driver upon receiving a record of his conviction of any of the

1-5  following offenses, when that conviction has become final, and

1-6  the driver is not eligible for a license, permit or privilege to drive for

1-7  the period indicated:

1-8  (a) For a period of 3 years if the offense is:

1-9       (1) A violation of subsection 2 of NRS 484.377.

2-1       (2) A third or subsequent violation of NRS 484.379 within 7

2-2  years . [of NRS 484.379.]

2-3       (3) A violation of NRS 484.379 that is punishable pursuant

2-4  to subsection 2 of NRS 484.3792.

2-5       (4) A violation of NRS 484.3795 or a homicide resulting

2-6  from driving or being in actual physical control of a vehicle while

2-7  under the influence of intoxicating liquor or a controlled substance

2-8  or resulting from any other conduct prohibited by NRS 484.379 or

2-9  484.3795.

2-10  The period during which such a driver is not eligible for a license,

2-11  permit or privilege to drive must be set aside during any period of

2-12  imprisonment and the period of revocation must resume upon

2-13  completion of the period of imprisonment or when the person is

2-14  placed on residential confinement.

2-15      (b) For a period of 1 year if the offense is:

2-16          (1) Any other manslaughter resulting from the driving of a

2-17  motor vehicle or felony in the commission of which a motor vehicle

2-18  is used, including the unlawful taking of a motor vehicle.

2-19          (2) Failure to stop and render aid as required pursuant to the

2-20  laws of this state in the event of a motor vehicle accident resulting in

2-21  the death or bodily injury of another.

2-22          (3) Perjury or the making of a false affidavit or statement

2-23  under oath to the Department pursuant to NRS 483.010 to 483.630,

2-24  inclusive, or pursuant to any other law relating to the ownership or

2-25  driving of motor vehicles.

2-26          (4) Conviction, or forfeiture of bail not vacated, upon three

2-27  charges of reckless driving committed within a period of 12 months.

2-28          (5) A second violation of NRS 484.379 within 7 years [of

2-29  NRS 484.379] , unless the violation is punishable pursuant to

2-30  subsection 2 of NRS 484.3792 and the driver is not eligible for a

2-31  restricted license during any of that period.

2-32          (6) A violation of NRS 484.348.

2-33      (c) For a period of 90 days, if the offense is a first violation of

2-34  NRS 484.379 within 7 years [of NRS 484.379.] , unless the

2-35  violation is punishable pursuant to subsection 2 of NRS 484.3792.

2-36      2.  The Department shall revoke the license, permit or privilege

2-37  of a driver convicted of violating NRS 484.379 who fails to

2-38  complete the educational course on the use of alcohol and controlled

2-39  substances within the time ordered by the court and shall add a

2-40  period of 90 days during which the driver is not eligible for a

2-41  license, permit or privilege to drive.

2-42      3.  When the Department is notified by a court that a person

2-43  who has been convicted of a first violation of NRS 484.379 within 7

2-44  years [of NRS 484.379] has been permitted to enter a program of

2-45  treatment pursuant to NRS 484.37937, the Department shall reduce

3-1  by one-half the period during which he is not eligible for a license,

3-2  permit or privilege to drive, but shall restore that reduction in time if

3-3  notified that he was not accepted for or failed to complete the

3-4  treatment.

3-5  4.  The Department shall revoke the license, permit or privilege

3-6  to drive of a person who is required to install a device pursuant to

3-7  NRS 484.3943 but who operates a motor vehicle without such a

3-8  device:

3-9  (a) For 3 years, if it is his first such offense during the period of

3-10  required use of the device.

3-11      (b) For 5 years, if it is his second such offense during the period

3-12  of required use of the device.

3-13      5.  A driver whose license, permit or privilege is revoked

3-14  pursuant to subsection 4 is not eligible for a restricted license during

3-15  the period set forth in paragraph (a) or (b) of that subsection,

3-16  whichever applies.

3-17      6.  In addition to any other requirements set forth by specific

3-18  statute, if the Department is notified that a court has ordered the

3-19  revocation, suspension or delay in the issuance of a license pursuant

3-20  to chapter 62 of NRS, NRS 176.064 or 206.330, chapter 484 of NRS

3-21  or any other provision of law, the Department shall take such

3-22  actions as are necessary to carry out the court’s order.

3-23      7.  As used in this section, “device” has the meaning ascribed to

3-24  it in NRS 484.3941.

3-25      Sec. 2.  NRS 483.490 is hereby amended to read as follows:

3-26      483.490  1.  Except as otherwise provided in this section, after

3-27  a driver’s license has been suspended or revoked for an offense

3-28  other than a second violation of NRS 484.379 within 7 years [of

3-29  NRS 484.379] , unless the second violation is a violation that is

3-30  punishable pursuant to subsection 2 of NRS 484.3792, and one-

3-31  half of the period during which the driver is not eligible for a license

3-32  has expired, the Department may, unless the statute authorizing the

3-33  suspension prohibits the issuance of a restricted license, issue a

3-34  restricted driver’s license to an applicant permitting the applicant to

3-35  drive a motor vehicle:

3-36      (a) To and from work or in the course of his work, or both; or

3-37      (b) To acquire supplies of medicine or food or receive regularly

3-38  scheduled medical care for himself or a member of his immediate

3-39  family.

3-40  Before a restricted license may be issued, the applicant must submit

3-41  sufficient documentary evidence to satisfy the Department that a

3-42  severe hardship exists because the applicant has no alternative

3-43  means of transportation and that the severe hardship outweighs the

3-44  risk to the public if he is issued a restricted license.

4-1  2.  A person who has been ordered to install a device in a motor

4-2  vehicle pursuant to NRS 484.3943:

4-3  (a) Shall install the device not later than 21 days after the date

4-4  on which the order was issued; and

4-5  (b) May not receive a restricted license pursuant to this section

4-6  until:

4-7       (1) After at least 1 year of the period during which he is not

4-8  eligible for a license, if he was convicted of:

4-9           (I) A violation of NRS 484.3795 or a homicide resulting

4-10  from driving or being in actual physical control of a vehicle while

4-11  under the influence of intoxicating liquor or a controlled substance

4-12  or resulting from any other conduct prohibited by NRS 484.379 or

4-13  484.3795; [or]

4-14              (II) A third or subsequent violation of NRS 484.379

4-15  within 7 years [of NRS 484.379;] ; or

4-16              (III) A violation of NRS 484.379 that is punishable

4-17  pursuant to subsection 2 of NRS 484.3792;

4-18          (2) After at least 180 days of the period during which he is

4-19  not eligible for a license, if he was convicted of a violation of

4-20  subsection 2 of NRS 484.377; or

4-21          (3) After at least 45 days of the period during which he is not

4-22  eligible for a license, if he was convicted of a first violation of NRS

4-23  484.379 within 7 years . [of NRS 484.379.]

4-24      3.  If the Department has received a copy of an order requiring a

4-25  person to install a device in a motor vehicle pursuant to NRS

4-26  484.3943, the Department shall not issue a restricted driver’s license

4-27  to such a person pursuant to this section unless the applicant has

4-28  submitted proof of compliance with the order and subsection 2.

4-29      4.  After a driver’s license has been revoked pursuant to

4-30  subsection 1 of NRS 62.227 or suspended pursuant to paragraph (h)

4-31  of subsection 1 of NRS 62.211, NRS 62.224, 62.2255, 62.226 or

4-32  62.228, the Department may issue a restricted driver’s license to an

4-33  applicant permitting the applicant to drive a motor vehicle:

4-34      (a) If applicable, to and from work or in the course of his work,

4-35  or both; [and] or

4-36      (b) If applicable, to and from school.

4-37      5. After a driver’s license has been suspended pursuant to NRS

4-38  483.443, the Department may issue a restricted driver’s license to an

4-39  applicant permitting the applicant to drive a motor vehicle:

4-40      (a) If applicable, to and from work or in the course of his work,

4-41  or both;

4-42      (b) To receive regularly scheduled medical care for himself or a

4-43  member of his immediate family; [and] or

4-44      (c) If applicable, as necessary to exercise a court-ordered right to

4-45  visit a child.

5-1  6.  A driver who violates a condition of a restricted license

5-2  issued pursuant to subsection 1 or by another jurisdiction is guilty of

5-3  a misdemeanor and, if the license of the driver was suspended or

5-4  revoked for:

5-5  (a) A violation of NRS 484.379, 484.3795 or 484.384;

5-6  (b) A homicide resulting from driving or being in actual

5-7  physical control of a vehicle while under the influence of

5-8  intoxicating liquor or a controlled substance or resulting from any

5-9  other conduct prohibited by NRS 484.379 or 484.3795; or

5-10      (c) A violation of a law of any other jurisdiction that

5-11  prohibits the same or similar conduct as set forth in paragraph (a)

5-12  or (b),

5-13  the driver shall be punished in the manner provided pursuant to

5-14  subsection 2 of NRS 483.560.

5-15      7.  The periods of suspensions and revocations required

5-16  pursuant to this chapter and NRS 484.384 must run consecutively,

5-17  except as otherwise provided in NRS 483.465 and 483.475[,] when

5-18  the suspensions must run concurrently.

5-19      8.  Whenever the Department suspends or revokes a license, the

5-20  period of suspension, or of ineligibility for a license after the

5-21  revocation, begins upon the effective date of the revocation or

5-22  suspension as contained in the notice thereof.

5-23      Sec. 3.  NRS 484.3792 is hereby amended to read as follows:

5-24      484.3792  1.  Unless a greater penalty is provided pursuant

5-25  to NRS 484.3795[,] and except as otherwise provided in

5-26  subsection 2, a person who violates the provisions of NRS 484.379:

5-27      (a) For the first offense within 7 years, is guilty of a

5-28  misdemeanor. Unless he is allowed to undergo treatment as

5-29  provided in NRS 484.37937, the court shall:

5-30          (1) Except as otherwise provided in subparagraph (4) or

5-31  subsection [6,] 7, order him to pay tuition for an educational course

5-32  on the abuse of alcohol and controlled substances approved by the

5-33  Department and complete the course within the time specified in the

5-34  order, and the court shall notify the Department if he fails to

5-35  complete the course within the specified time;

5-36          (2) Unless the sentence is reduced pursuant to NRS

5-37  484.37937, sentence him to imprisonment for not less than 2 days

5-38  nor more than 6 months in jail, or to perform not less than 48 hours,

5-39  but not more than 96 hours, of community service while dressed in

5-40  distinctive garb that identifies him as having violated the provisions

5-41  of NRS 484.379;

5-42          (3) Fine him not less than $400 nor more than $1,000; and

5-43          (4) If he is found to have a concentration of alcohol of 0.18

5-44  or more in his blood or breath, order him to attend a program of

6-1  treatment for the abuse of alcohol or drugs pursuant to the

6-2  provisions of NRS 484.37945.

6-3  (b) For a second offense within 7 years, is guilty of a

6-4  misdemeanor. Unless the sentence is reduced pursuant to NRS

6-5  484.3794, the court shall:

6-6       (1) Sentence him to:

6-7           (I) Imprisonment for not less than 10 days nor more than

6-8  6 months in jail; or

6-9           (II) Residential confinement for not less than 10 days nor

6-10  more than 6 months, in the manner provided in NRS 4.376 to

6-11  4.3766, inclusive, or 5.0755 to 5.078, inclusive;

6-12          (2) Fine him not less than $750 nor more than $1,000;

6-13          (3) Order him to perform not less than 100 hours, but not

6-14  more than 200 hours, of community service while dressed in

6-15  distinctive garb that identifies him as having violated the provisions

6-16  of NRS 484.379, unless the court finds that extenuating

6-17  circumstances exist; and

6-18          (4) Order him to attend a program of treatment for the

6-19  abuse of alcohol or drugs pursuant to the provisions of

6-20  NRS 484.37945.

6-21  A person who willfully fails or refuses to complete successfully a

6-22  term of residential confinement or a program of treatment ordered

6-23  pursuant to this subsection is guilty of a misdemeanor.

6-24      (c) For a third [or subsequent] offense within 7 years, is guilty

6-25  of a category B felony and shall be punished by imprisonment in the

6-26  state prison for a minimum term of not less than 1 year and a

6-27  maximum term of not more than 6 years, and shall be further

6-28  punished by a fine of not less than $2,000 nor more than $5,000. An

6-29  offender so imprisoned must, insofar as practicable, be segregated

6-30  from offenders whose crimes were violent and, insofar as

6-31  practicable, be assigned to an institution or facility of minimum

6-32  security.

6-33      2.  A person who has previously been convicted of:

6-34      (a) A felony pursuant to this section;

6-35      (b) A violation of NRS 484.3795;

6-36      (c) A homicide resulting from driving or being in actual

6-37  physical control of a vehicle while under the influence of

6-38  intoxicating liquor or a controlled substance or resulting from any

6-39  other conduct prohibited by NRS 484.379 or 484.3795; or

6-40      (d) A violation of a law of any other jurisdiction that prohibits

6-41  the same or similar conduct as set forth in paragraph (a), (b)

6-42  or (c),

6-43  and who violates the provisions of NRS 484.379 is guilty of a

6-44  category B felony and shall be punished by imprisonment in the

6-45  state prison for a minimum term of not less than 2 years and a

7-1  maximum term of not more than 15 years, and shall be further

7-2  punished by a fine of not less than $2,000 nor more than $5,000.

7-3  An offender so imprisoned must, insofar as practicable, be

7-4  segregated from offenders whose crimes were violent and, insofar

7-5  as practicable, be assigned to an institution or facility of minimum

7-6  security.

7-7  3.  An offense that occurred within 7 years immediately

7-8  preceding the date of the principal offense or after the principal

7-9  offense constitutes a prior offense for the purposes of this section

7-10  when evidenced by a conviction, without regard to the sequence of

7-11  the offenses and convictions. The facts concerning a prior offense

7-12  must be alleged in the complaint, indictment or information, must

7-13  not be read to the jury or proved at trial but must be proved at the

7-14  time of sentencing and, if the principal offense is alleged to be a

7-15  felony, must also be shown at the preliminary examination or

7-16  presented to the grand jury.

7-17      [3.] 4.  A person convicted of violating the provisions of NRS

7-18  484.379 must not be released on probation, and a sentence imposed

7-19  for violating those provisions must not be suspended except, as

7-20  provided in NRS 4.373, 5.055, 484.37937 and 484.3794, that

7-21  portion of the sentence imposed that exceeds the mandatory

7-22  minimum. A prosecuting attorney shall not dismiss a charge of

7-23  violating the provisions of NRS 484.379 in exchange for a plea of

7-24  guilty, guilty but mentally ill or nolo contendere to a lesser charge or

7-25  for any other reason unless he knows or it is obvious that the charge

7-26  is not supported by probable cause or cannot be proved at the time

7-27  of trial.

7-28      [4.] 5.  A term of confinement imposed pursuant to the

7-29  provisions of this section may be served intermittently at the

7-30  discretion of the judge or justice of the peace, except that a person

7-31  who is convicted of a second or subsequent offense within 7 years

7-32  must be confined for at least one segment of not less than 48

7-33  consecutive hours. This discretion must be exercised after

7-34  considering all the circumstances surrounding the offense, and the

7-35  family and employment of the offender, but any sentence of 30 days

7-36  or less must be served within 6 months after the date of conviction

7-37  or, if the offender was sentenced pursuant to NRS 484.37937 or

7-38  484.3794 and the suspension of his sentence was revoked, within 6

7-39  months after the date of revocation. Any time for which the offender

7-40  is confined must consist of not less than 24 consecutive hours.

7-41      [5.] 6.  Jail sentences simultaneously imposed pursuant to this

7-42  section and NRS 482.456, 483.560 or 485.330 must run

7-43  consecutively.

7-44      [6.] 7.  If the person who violated the provisions of NRS

7-45  484.379 possesses a driver’s license issued by a state other than the

8-1  State of Nevada and does not reside in the State of Nevada, in

8-2  carrying out the provisions of subparagraph (1) of paragraph (a) of

8-3  subsection 1, the court shall:

8-4  (a) Order the person to pay tuition for and submit evidence of

8-5  completion of an educational course on the abuse of alcohol and

8-6  controlled substances approved by a governmental agency of the

8-7  state of his residence within the time specified in the order; or

8-8  (b) Order him to complete an educational course by

8-9  correspondence on the abuse of alcohol and controlled substances

8-10  approved by the Department within the time specified in the

8-11  order,

8-12  and the court shall notify the Department if the person fails to

8-13  complete the assigned course within the specified time.

8-14      [7.] 8.  If the defendant was transporting a person who is less

8-15  than 15 years of age in the motor vehicle at the time of the violation,

8-16  the court shall consider that fact as an aggravating factor in

8-17  determining the sentence of the defendant.

8-18      [8.] 9.  As used in this section, unless the context otherwise

8-19  requires:

8-20      (a) “Concentration of alcohol of 0.18 or more in his blood or

8-21  breath” means 0.18 gram or more of alcohol per 100 milliliters of

8-22  the blood of a person or per 210 liters of this breath.

8-23      (b) “Offense” means:

8-24          (1) A violation of NRS 484.379 or 484.3795;

8-25          (2) A homicide resulting from driving or being in actual

8-26  physical control of a vehicle while under the influence of

8-27  intoxicating liquor or a controlled substance or resulting from any

8-28  other conduct prohibited by NRS 484.379 or 484.3795; or

8-29          (3) A violation of a law of any other jurisdiction that

8-30  prohibits the same or similar conduct as set forth in [paragraph (a)

8-31  or (b).] subparagraph (1) or (2).

8-32      Sec. 4.  NRS 484.37937 is hereby amended to read as follows:

8-33      484.37937  1.  Except as otherwise provided in subsection 2, a

8-34  person who is found guilty of a first violation of NRS 484.379, other

8-35  than a person who is found to have a concentration of alcohol of

8-36  0.18 or more in his blood or breath, may, at that time or any time

8-37  before he is sentenced, apply to the court to undergo a program of

8-38  treatment for alcoholism or drug abuse which is certified by the

8-39  Health Division of the Department of Human Resources for at least

8-40  6 months. The court shall authorize that treatment if:

8-41      (a) The person is diagnosed as an alcoholic or abuser of drugs

8-42  by:

8-43          (1) An alcohol and drug abuse counselor who is licensed or

8-44  certified pursuant to chapter 641C of NRS to make that diagnosis; or

9-1       (2) A physician who is certified to make that diagnosis by the

9-2  Board of Medical Examiners;

9-3  (b) He agrees to pay the cost of the treatment to the extent of his

9-4  financial resources; and

9-5  (c) He has served or will serve a term of imprisonment in jail of

9-6  1 day, or has performed or will perform 48 hours of community

9-7  service.

9-8  2.  A person may not apply to the court to undergo a program of

9-9  treatment pursuant to subsection 1 if, within the immediately

9-10  preceding 7 years, he has been found guilty of:

9-11      (a) A felony pursuant to NRS 484.3792;

9-12      (b) A violation of NRS 484.3795;

9-13      [(b)] (c) A homicide resulting from driving or being in actual

9-14  physical control of a vehicle while under the influence of

9-15  intoxicating liquor or a controlled substance or resulting from any

9-16  other conduct prohibited by NRS 484.379 or 484.3795; or

9-17      [(c)] (d) A violation of a law of any other jurisdiction that

9-18  prohibits the same or similar conduct as set forth in paragraph (a)

9-19  [or (b).] , (b) or (c).

9-20      3.  For the purposes of subsection 1, a violation of a law of any

9-21  other jurisdiction that prohibits the same or similar conduct as NRS

9-22  484.379 constitutes a violation of NRS 484.379.

9-23      4.  A prosecuting attorney may, within 10 days after receiving

9-24  notice of an application for treatment pursuant to this section,

9-25  request a hearing on the question of whether the offender is eligible

9-26  to undergo a program of treatment for alcoholism or drug abuse.

9-27  The court shall order a hearing on the application upon the request

9-28  of the prosecuting attorney or may order a hearing on its own

9-29  motion. The hearing must be limited to the question of whether the

9-30  offender is eligible to undergo such a program of treatment.

9-31      5.  At the hearing on the application for treatment, the

9-32  prosecuting attorney may present the court with any relevant

9-33  evidence on the matter. If a hearing is not held, the court shall

9-34  decide the matter upon affidavits and other information before the

9-35  court.

9-36      6.  If the court grants an application for treatment, the court

9-37  shall:

9-38      (a) Immediately sentence the offender and enter judgment

9-39  accordingly.

9-40      (b) Suspend the sentence of the offender for not more than 3

9-41  years upon the condition that the offender be accepted for treatment

9-42  by a treatment facility, that he complete the treatment satisfactorily

9-43  and that he comply with any other condition ordered by the court.

9-44      (c) Advise the offender that:

10-1          (1) If he is accepted for treatment by such a facility, he may

10-2  be placed under the supervision of the facility for a period not to

10-3  exceed 3 years and during treatment he may be confined in an

10-4  institution or, at the discretion of the facility, released for treatment

10-5  or supervised aftercare in the community.

10-6          (2) If he is not accepted for treatment by such a facility or he

10-7  fails to complete the treatment satisfactorily, he shall serve the

10-8  sentence imposed by the court. Any sentence of imprisonment must

10-9  be reduced by a time equal to that which he served before beginning

10-10  treatment.

10-11         (3) If he completes the treatment satisfactorily, his sentence

10-12  will be reduced to a term of imprisonment which is no longer than

10-13  that provided for the offense in paragraph (c) of subsection 1 and a

10-14  fine of not more than the minimum fine provided for the offense in

10-15  NRS 484.3792, but the conviction must remain on his record of

10-16  criminal history.

10-17     7.  The court shall administer the program of treatment pursuant

10-18  to the procedures provided in NRS 458.320 and 458.330, except that

10-19  the court:

10-20     (a) Shall not defer the sentence, set aside the conviction or

10-21  impose conditions upon the election of treatment except as

10-22  otherwise provided in this section.

10-23     (b) May immediately revoke the suspension of sentence for a

10-24  violation of any condition of the suspension.

10-25     8.  The court shall notify the Department, on a form approved

10-26  by the Department, upon granting the application of the offender for

10-27  treatment and his failure to be accepted for or complete treatment.

10-28     Sec. 5.  NRS 484.3794 is hereby amended to read as follows:

10-29     484.3794  1.  Except as otherwise provided in subsection 2, a

10-30  person who is found guilty of a second violation of NRS 484.379

10-31  within 7 years may, at that time or any time before he is sentenced,

10-32  apply to the court to undergo a program of treatment for alcoholism

10-33  or drug abuse which is certified by the Health Division of the

10-34  Department of Human Resources for at least 1 year if:

10-35     (a) He is diagnosed as an alcoholic or abuser of drugs by:

10-36         (1) An alcohol and drug abuse counselor who is licensed or

10-37  certified pursuant to chapter 641C of NRS to make that diagnosis; or

10-38         (2) A physician who is certified to make that diagnosis by the

10-39  Board of Medical Examiners;

10-40     (b) He agrees to pay the costs of the treatment to the extent of

10-41  his financial resources; and

10-42     (c) He has served or will serve a term of imprisonment in jail of

10-43  5 days, and if required pursuant to NRS 484.3792, has performed or

10-44  will perform not less than 50 hours, but not more than 100 hours, of

10-45  community service.

11-1      2.  A person may not apply to the court to undergo a program of

11-2  treatment pursuant to subsection 1 if[, within the immediately

11-3  preceding 7 years,] he previously has been found guilty of:

11-4      (a) A felony pursuant to NRS 484.3792;

11-5      (b) A violation of NRS 484.3795;

11-6      [(b)] (c) A homicide resulting from driving or being in actual

11-7  physical control of a vehicle while under the influence of

11-8  intoxicating liquor or a controlled substance or resulting from any

11-9  other conduct prohibited by NRS 484.379 or 484.3795; or

11-10     [(c)] (d) A violation of a law of any other jurisdiction that

11-11  prohibits the same or similar conduct as set forth in paragraph (a)

11-12  [or (b).] , (b) or (c).

11-13     3.  For the purposes of subsection 1, a violation of a law of any

11-14  other jurisdiction that prohibits the same or similar conduct as NRS

11-15  484.379 constitutes a violation of NRS 484.379.

11-16     4.  A prosecuting attorney may, within 10 days after receiving

11-17  notice of an application for treatment pursuant to this section,

11-18  request a hearing on the matter. The court shall order a hearing on

11-19  the application upon the request of the prosecuting attorney or may

11-20  order a hearing on its own motion.

11-21     5.  At the hearing on the application for treatment, the

11-22  prosecuting attorney may present the court with any relevant

11-23  evidence on the matter. If a hearing is not held, the court shall

11-24  decide the matter upon affidavits and other information before the

11-25  court.

11-26     6.  If the court determines that an application for treatment

11-27  should be granted, the court shall:

11-28     (a) Immediately sentence the offender and enter judgment

11-29  accordingly.

11-30     (b) Suspend the sentence of the offender for not more than 3

11-31  years upon the condition that the offender be accepted for treatment

11-32  by a treatment facility, that he complete the treatment satisfactorily

11-33  and that he comply with any other condition ordered by the court.

11-34     (c) Advise the offender that:

11-35         (1) If he is accepted for treatment by such a facility, he may

11-36  be placed under the supervision of the facility for a period not to

11-37  exceed 3 years and during treatment he may be confined in an

11-38  institution or, at the discretion of the facility, released for treatment

11-39  or supervised aftercare in the community.

11-40         (2) If he is not accepted for treatment by such a facility or he

11-41  fails to complete the treatment satisfactorily, he shall serve the

11-42  sentence imposed by the court. Any sentence of imprisonment must

11-43  be reduced by a time equal to that which he served before beginning

11-44  treatment.

12-1          (3) If he completes the treatment satisfactorily, his sentence

12-2  will be reduced to a term of imprisonment which is no longer than

12-3  that provided for the offense in paragraph (c) of subsection 1 and a

12-4  fine of not more than the minimum provided for the offense in NRS

12-5  484.3792, but the conviction must remain on his record of criminal

12-6  history.

12-7      7.  The court shall administer the program of treatment pursuant

12-8  to the procedures provided in NRS 458.320 and 458.330, except that

12-9  the court:

12-10     (a) Shall not defer the sentence, set aside the conviction or

12-11  impose conditions upon the election of treatment except as

12-12  otherwise provided in this section.

12-13     (b) May immediately revoke the suspension of sentence for a

12-14  violation of a condition of the suspension.

12-15     8.  The court shall notify the Department, on a form approved

12-16  by the Department, upon granting the application of the offender for

12-17  treatment and his failure to be accepted for or complete treatment.

12-18     Sec. 6.  NRS 484.37943 is hereby amended to read as follows:

12-19     484.37943  1.  [If] Except as otherwise provided in

12-20  subsection 3, if a person is found guilty of a first violation, if the

12-21  concentration of alcohol in the defendant’s blood or breath at the

12-22  time of the offense was 0.18 or more, or any second violation of

12-23  NRS 484.379 within 7 years, the court shall, before sentencing the

12-24  offender, require an evaluation of the offender pursuant to

12-25  subsection [3, 4 or 5] 4, 5 or 6 to determine whether he is an abuser

12-26  of alcohol or other drugs.

12-27     2.  [If] Except as otherwise provided in subsection 3, if a

12-28  person is convicted of a first violation of NRS 484.379 and he is

12-29  under 21 years of age at the time of the violation, the court shall,

12-30  before sentencing the offender, require an evaluation of the offender

12-31  pursuant to subsection [3, 4 or 5] 4, 5 or 6 to determine whether he

12-32  is an abuser of alcohol or other drugs.

12-33     3.  The court shall not require an evaluation of an offender

12-34  pursuant to subsection 4, 5 or 6 if the offender has previously been

12-35  found guilty of:

12-36     (a) A felony pursuant to NRS 484.3792;

12-37     (b) A violation of NRS 484.3795;

12-38     (c) A homicide resulting from driving or being in actual

12-39  physical control of a vehicle while under the influence of

12-40  intoxicating liquor or a controlled substance; or

12-41     (d) A violation of a law of any other jurisdiction that prohibits

12-42  the same or similar conduct as set forth in paragraph (a), (b)

12-43  or (c).

13-1      4.  Except as otherwise provided in subsection [4 or 5,] 5 or 6,

13-2  the evaluation of an offender pursuant to this section must be

13-3  conducted at an evaluation center by:

13-4      (a) An alcohol and drug abuse counselor who is licensed or

13-5  certified pursuant to chapter 641C of NRS to make that evaluation;

13-6  or

13-7      (b) A physician who is certified to make that evaluation by the

13-8  Board of Medical Examiners,

13-9  who shall report to the court the results of the evaluation and make a

13-10  recommendation to the court concerning the length and type of

13-11  treatment required for the offender.

13-12     [4.] 5.  The evaluation of an offender who resides more than 30

13-13  miles from an evaluation center may be conducted outside an

13-14  evaluation center by a person who has the qualifications set forth in

13-15  subsection [3.] 4. The person who conducts the evaluation shall

13-16  report to the court the results of the evaluation and make a

13-17  recommendation to the court concerning the length and type of

13-18  treatment required for the offender.

13-19     [5.] 6.  The evaluation of an offender who resides in another

13-20  state may, upon approval of the court, be conducted in the state

13-21  where the offender resides by a physician or other person who is

13-22  authorized by the appropriate governmental agency in that state to

13-23  conduct such an evaluation. The offender shall ensure that the

13-24  results of the evaluation and the recommendation concerning the

13-25  length and type of treatment for the offender are reported to the

13-26  court.

13-27     [6.] 7.  An offender who is evaluated pursuant to this section

13-28  shall pay the cost of the evaluation. An evaluation center or a person

13-29  who conducts an evaluation in this state outside an evaluation center

13-30  shall not charge an offender more than $100 for the evaluation.

13-31     Sec. 7.  NRS 484.37945 is hereby amended to read as follows:

13-32     484.37945  1.  When a program of treatment is ordered

13-33  pursuant to paragraph (a) or (b) of subsection 1 of NRS 484.3792,

13-34  the court shall place the offender under the clinical supervision of a

13-35  treatment facility for treatment for a period not to exceed 1 year, in

13-36  accordance with the report submitted to the court pursuant to

13-37  subsection [3, 4 or 5] 4, 5 or 6 of NRS 484.37943. The court shall:

13-38     (a) Order the offender confined in a treatment facility, then

13-39  release the offender for supervised aftercare in the community; or

13-40     (b) Release the offender for treatment in the

13-41  community,

13-42  for the period of supervision ordered by the court.

13-43     2.  The court shall:

13-44     (a) Require the treatment facility to submit monthly progress

13-45  reports on the treatment of an offender pursuant to this section; and

14-1      (b) Order the offender, to the extent of his financial resources, to

14-2  pay any charges for his treatment pursuant to this section. If the

14-3  offender does not have the financial resources to pay all those

14-4  charges, the court shall, to the extent possible, arrange for the

14-5  offender to obtain his treatment from a treatment facility that

14-6  receives a sufficient amount of federal or state money to offset the

14-7  remainder of the charges.

14-8      3.  A treatment facility is not liable for any damages to person

14-9  or property caused by a person who:

14-10     (a) Drives, operates or is in actual physical control of a vehicle

14-11  or a vessel under power or sail while under the influence of

14-12  intoxicating liquor or a controlled substance; or

14-13     (b) Engages in any other conduct prohibited by NRS 484.379,

14-14  484.3795, subsection 2 of NRS 488.400, NRS 488.410 or 488.420

14-15  or a law of any other jurisdiction that prohibits the same or similar

14-16  conduct,

14-17  after the treatment facility has certified to his successful completion

14-18  of a program of treatment ordered pursuant to paragraph (a) or (b) of

14-19  subsection 1 of NRS 484.3792.

14-20     Sec. 8.  NRS 484.3796 is hereby amended to read as follows:

14-21     484.3796  1.  Before sentencing an offender pursuant to NRS

14-22  484.3795 or paragraph (c) of subsection 1 or subsection 2 of NRS

14-23  484.3792, the court shall require that the offender be evaluated to

14-24  determine whether he is an abuser of alcohol or drugs and whether

14-25  he can be treated successfully for his condition.

14-26     2.  The evaluation must be conducted by:

14-27     (a) An alcohol and drug abuse counselor who is licensed or

14-28  certified pursuant to chapter 641C of NRS to make such an

14-29  evaluation;

14-30     (b) A physician who is certified to make such an evaluation by

14-31  the Board of Medical Examiners; or

14-32     (c) A psychologist who is certified to make such an evaluation

14-33  by the Board of Psychological Examiners.

14-34     3.  The alcohol and drug abuse counselor, physician or

14-35  psychologist who conducts the evaluation shall immediately forward

14-36  the results of the evaluation to the Director of the Department of

14-37  Corrections.

14-38     Sec. 9.  NRS 484.3943 is hereby amended to read as follows:

14-39     484.3943  1.  Except as otherwise provided in subsection 5, a

14-40  court:

14-41     (a) May order a person convicted of a first violation of NRS

14-42  484.379, for a period of not less than 3 months nor more than 6

14-43  months; and

14-44     (b) Shall order a person convicted of a [third or subsequent

14-45  violation of NRS 484.379] felony pursuant to NRS 484.3792 or a

15-1  violation of NRS 484.3795, for a period of not less than 12 months

15-2  nor more than 36 months,

15-3  to install at his own expense a device in any motor vehicle which he

15-4  owns or operates as a condition to obtaining a restricted license

15-5  pursuant to subsection 3 of NRS 483.490.

15-6      2.  A court may order a person convicted of a violation of NRS

15-7  484.379 or 484.3795, for a period determined by the court, to install

15-8  at his own expense a device in any motor vehicle which he owns or

15-9  operates as a condition of reinstatement of his driving privilege.

15-10     3.  If the court orders a person to install a device pursuant to

15-11  subsection 1 or 2:

15-12     (a) The court shall immediately prepare and transmit a copy of

15-13  its order to the Director. The order must include a statement that a

15-14  device is required and the specific period for which it is required.

15-15  The Director shall cause this information to be incorporated into the

15-16  records of the Department and noted as a restriction on the person’s

15-17  driver’s license.

15-18     (b) The person who is required to install the device shall provide

15-19  proof of compliance to the Department before he may receive a

15-20  restricted license or before his driving privilege may be reinstated,

15-21  as applicable. Each model of a device installed pursuant to this

15-22  section must have been certified by the Committee on Testing for

15-23  Intoxication.

15-24     4.  A person whose driving privilege is restricted pursuant to

15-25  this section shall:

15-26     (a) If he was ordered to install a device pursuant to paragraph (a)

15-27  of subsection 1, have the device inspected by the manufacturer of

15-28  the device or its agent at least one time during the period in which

15-29  he is required to use the device; or

15-30     (b) If he was ordered to install a device pursuant to paragraph

15-31  (b) of subsection 1, have the device inspected by the manufacturer

15-32  of the device or its agent at least one time each 90 days,

15-33  to determine whether the device is operating properly. An inspection

15-34  required pursuant to this subsection must be conducted in

15-35  accordance with regulations adopted pursuant to NRS 484.3888.

15-36  The manufacturer or its agent shall submit a report to the Director

15-37  indicating whether the device is operating properly and whether it

15-38  has been tampered with. If the device has been tampered with, the

15-39  Director shall notify the court that ordered the installation of

15-40  the device.

15-41     5.  If a person is required to operate a motor vehicle in the

15-42  course and scope of his employment and the motor vehicle is owned

15-43  by his employer, the person may operate that vehicle without the

15-44  installation of a device, if:

16-1      (a) The employee notifies his employer that the employee’s

16-2  driving privilege has been so restricted; and

16-3      (b) The employee has proof of that notification in his possession

16-4  or the notice, or a facsimile copy thereof, is with the motor

16-5  vehicle.

16-6  This exemption does not apply to a motor vehicle owned by a

16-7  business which is all or partly owned or controlled by the person

16-8  otherwise subject to this section.

16-9      Sec. 10.  Chapter 488 of NRS is hereby amended by adding

16-10  thereto a new section to read as follows:

16-11     1.  A person who violates the provisions of NRS 488.410 and

16-12  who has previously been convicted of a violation of NRS 488.420

16-13  or a violation of the law of any other jurisdiction that prohibits the

16-14  same or similar conduct as set forth in NRS 488.420 is guilty of a

16-15  category B felony and shall be punished by imprisonment in the

16-16  state prison for a minimum term of not less than 2 years and a

16-17  maximum term of not more than 15 years, and shall be further

16-18  punished by a fine of not less than $2,000 nor more than $5,000.

16-19  An offender so imprisoned must, insofar as practicable, be

16-20  segregated from offenders whose crimes were violent and, insofar

16-21  as practicable, be assigned to an institution or facility of minimum

16-22  security.

16-23     2.  The facts concerning a prior violation of NRS 488.420

16-24  must be alleged in the complaint, indictment or information, must

16-25  not be read to the jury or proved at trial but must be proved at the

16-26  time of sentencing.

16-27     3.  A prosecuting attorney shall not dismiss a charge of

16-28  violating the provisions of NRS 488.410 against a person

16-29  previously convicted of violating NRS 488.420 in exchange for a

16-30  plea of guilty or nolo contendere to a lesser charge or for any

16-31  other reason unless he knows or it is obvious that the charge is not

16-32  supported by probable cause or cannot be proved at the time of

16-33  trial. A sentence imposed pursuant to subsection 1 must not be

16-34  suspended, and probation must not be granted.

16-35     4.  If a person less than 15 years of age was in the vessel at the

16-36  time of the defendant’s violation, the court shall consider that fact

16-37  as an aggravating factor in determining the sentence of the

16-38  defendant.

16-39     Sec. 11.  NRS 488.410 is hereby amended to read as follows:

16-40     488.410  1.  It is unlawful for any person who:

16-41     (a) Is under the influence of intoxicating liquor;

16-42     (b) Has a concentration of alcohol of 0.10 or more in his blood

16-43  or breath; or

17-1      (c) Is found by measurement within 2 hours after operating or

17-2  being in actual physical control of a vessel to have a concentration

17-3  of alcohol of 0.10 or more in his blood or breath,

17-4  to operate or be in actual physical control of a vessel under power or

17-5  sail on the waters of this state.

17-6      2.  It is unlawful for any person who:

17-7      (a) Is under the influence of a controlled substance;

17-8      (b) Is under the combined influence of intoxicating liquor and a

17-9  controlled substance; or

17-10     (c) Inhales, ingests, applies or otherwise uses any chemical,

17-11  poison or organic solvent, or any compound or combination of any

17-12  of these, to a degree which renders him incapable of safely

17-13  operating or exercising actual physical control of a vessel under

17-14  power or sail,

17-15  to operate or be in actual physical control of a vessel under power or

17-16  sail on the waters of this state.

17-17     3.  It is unlawful for any person to operate or be in actual

17-18  physical control of a vessel under power or sail on the waters of this

17-19  state with an amount of a prohibited substance in his blood or urine

17-20  that is equal to or greater than:

 

17-21  Prohibited substanceUrine              Blood

17-22                             Nanograms perNanograms per

17-23                                  milliliter         milliliter

17-24  (a) Amphetamine       500                   100

17-25  (b) Cocaine                150                     50

17-26  (c) Cocaine metabolite150                  50

17-27  (d) Heroin               2,000                     50

17-28  (e) Heroin metabolite:

17-29  (1) Morphine      2,000                     50

17-30  (2) 6-monoacetyl morphine             1010

17-31  (f) Lysergic acid diethylamide              2510

17-32  (g) Marijuana               10                       2

17-33  (h) Marijuana metabolite15                   5

17-34  (i) Methamphetamine500                  100

17-35  (j) Phencyclidine          25                     10

 

17-36     4.  If consumption is proven by a preponderance of the

17-37  evidence, it is an affirmative defense under paragraph (c) of

17-38  subsection 1 that the defendant consumed a sufficient quantity of

17-39  alcohol after operating or being in actual physical control of the

17-40  vessel, and before his blood was tested, to cause him to have a

17-41  concentration of 0.10 or more of alcohol in his blood or breath. A

17-42  defendant who intends to offer this defense at a trial or preliminary

17-43  hearing must, not less than 14 days before the trial or hearing or at

18-1  such other time as the court may direct, file and serve on the

18-2  prosecuting attorney a written notice of that intent.

18-3      5.  Except as otherwise provided in section 10 of this act, a

18-4  person who violates the provisions of this section is guilty of a

18-5  misdemeanor.

18-6      Sec. 12.  NRS 488.430 is hereby amended to read as follows:

18-7      488.430  1.  Before sentencing a defendant pursuant to NRS

18-8  488.420[,] or section 10 of this act, the court shall require that the

18-9  defendant be evaluated to determine whether he is an abuser of

18-10  alcohol or drugs and whether he can be treated successfully for his

18-11  condition.

18-12     2.  The evaluation must be conducted by:

18-13     (a) An alcohol and drug abuse counselor who is licensed or

18-14  certified pursuant to chapter 641C of NRS to make such an

18-15  evaluation;

18-16     (b) A physician who is certified to make such an evaluation by

18-17  the Board of Medical Examiners; or

18-18     (c) A psychologist who is certified to make such an evaluation

18-19  by the Board of Psychological Examiners.

18-20     3.  The alcohol and drug abuse counselor, physician or

18-21  psychologist who conducts the evaluation shall immediately forward

18-22  the results of the evaluation to the Director of the Department of

18-23  Corrections.

18-24     Sec. 13.  NRS 209.425 is hereby amended to read as follows:

18-25     209.425  1.  The Director shall, with the approval of the

18-26  Board, establish a program for the treatment of an abuser of alcohol

18-27  or drugs who is imprisoned pursuant to paragraph (c) of subsection

18-28  1 or subsection 2 of NRS 484.3792 or NRS 484.3795. The program

18-29  must include an initial period of intensive mental and physical

18-30  rehabilitation in a facility of the Department, followed by regular

18-31  sessions of education, counseling and any other necessary or

18-32  desirable treatment.

18-33     2.  The Director may, upon the request of the offender after the

18-34  initial period of rehabilitation, allow the offender to earn wages

18-35  under any other program established by the Department if the

18-36  offender assigns to the Department any wages he earns under such a

18-37  program. The Director may deduct from the wages of the offender

18-38  an amount determined by the Director, with the approval of the

18-39  Board, to:

18-40     (a) Offset the costs, as reflected in the budget of the Department,

18-41  to maintain the offender in a facility or institution of the Department

18-42  and in the program of treatment established pursuant to this section;

18-43  and

18-44     (b) Meet any existing obligation of the offender for the support

18-45  of his family or restitution to any victim of his crime.

19-1      Sec. 14.  NRS 209.481 is hereby amended to read as follows:

19-2      209.481  1.  The Director shall not assign any prisoner to an

19-3  institution or facility of minimum security if the prisoner:

19-4      (a) Except as otherwise provided in NRS 484.3792 , [and]

19-5  484.3795, 488.420 and section 10 of this act, is not eligible for

19-6  parole or release from prison within a reasonable period;

19-7      (b) Has recently committed a serious infraction of the rules of an

19-8  institution or facility of the Department;

19-9      (c) Has not performed the duties assigned to him in a faithful

19-10  and orderly manner;

19-11     (d) Has been convicted of a sexual offense;

19-12     (e) Has committed an act of serious violence during the previous

19-13  year; or

19-14     (f) Has attempted to escape or has escaped from an institution of

19-15  the Department.

19-16     2.  The Director shall, by regulation, establish procedures for

19-17  classifying and selecting qualified prisoners.

19-18     Sec. 15.  The amendatory provisions of this act apply to

19-19  offenses committed before October 1, 2003, for the purpose of

19-20  determining whether a person is subject to the provisions of

19-21  subsection 2 of NRS 484.3792, as amended by this act, or

19-22  subsection 1 of section 10 of this act.

 

19-23  H