MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      February 23, 1993

 

 

 

The Assembly Committee on Judiciary was called to order by Vice Chairman Gene T. Porter at 8:06 a.m., February 23, 1993, in Room 332 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

      Mr. Gene T. Porter, Vice Chairman

      Mr. Bernie Anderson

      Mr  John C. Bonaventura

      Mr. John C. Carpenter

      Mr. Tom Collins, Jr.

      Mr. James A. Gibbons

      Mr. William D. Gregory

      Mr. William A. Petrak

      Mr. John B. Regan

      Mr. Scott Scherer

      Ms. Stephanie Smith

      Mr. Louis A. Toomin

 

COMMITTEE MEMBERS ABSENT:

 

      Mr. Robert M. Sader, Chairman      (absent/excused)

      Mr. Michael A. Schneider                  (absent/excused)

 

GUEST LEGISLATORS PRESENT:

 

      None

 

STAFF MEMBERS PRESENT:

 

      Denice Miller, Research Analyst

 

OTHERS PRESENT:

 

      Mr. Ben Graham, Legislative Respresentative, Nevada             District Attorney's Association

 

 

Following roll call, Vice Chairman Porter opened the hearing on A.B. 62.

 

 

 

ASSEMBLY BILL NO. 62.   Requires convicted person applying                                   or                            petitioning to have his civil rights                          restored or criminal record sealed to                           submit certain information with                               application or petition.

 

Mr. Ben Graham, Legislative Representative, Nevada District Attorney's Association, was the prime sponsor of A.B. 62.  He stated the purpose of A.B 62 was to provide provisions to those individuals who had been convicted and sentenced with criminal offenses, and over a specified period of time, had maintained clear criminal history records.  For those individuals, the criminal records could be sealed.

 

Mr. Graham expounded on the provisions contained in A.B. 62.  After individuals had met the stipulations, they could petition the courts to seal the criminal records.  In most cases, individuals would have to elicit the services of attorneys who would authorize criminal history printout information.  Action would be taken to request the records be sealed.  According to Mr. Graham, the majority of individuals, even those with councel, did not obtain their prior criminal records.  This would make it difficult to determine exactly what charges needed to be sealed on the criminal records. 

 

Mr. Graham noted the individuals seeking to have their criminal records sealed would be required to obtain current certified copies of their records which could be obtained from the Nevada Records of Criminal History repository and provide this information with petitions to seal the criminal records. 

 

Mr. Porter asked if the state would be notified when defendants petitioned the courts to seal the criminal records.  Mr. Graham stated there were requirements in these cases.  As a matter of procedure, the defendants would be required to bring the petitions to the District Attorney's Office for stipulations.  In the majority of cases, the District Attorneys were able to stipulate these matters and hearings would not be necessitated.  Mr. Porter queried if the state, as well as the courts, would be notified.  Mr. Graham confirmed certified copies would be attached to the petitions.

 

Mr. Anderson asked, should A.B. 81 pass, would additional costs be incurred.  Mr. Graham replied, should individuals seek to challenge the accuracy of their criminal records, no charges would be assessed.  He did note however, since A.B. 81 was a new provision, no decisions had been made in reference to financial considerations.  As Mr. Graham understood, the Nevada Records of Criminal History repository might assess a $15 administrative fee.  In conclusion, Mr. Graham stated it would be in the petitioners' best interests to assure the records were cleared. 

 

Mr. Toomin asked if, when completing forms, convicted felons were required to reveal their criminal history after the records had been sealed.   In reply, Mr. Graham said convicted felons were not required to reveal their past criminal records after their records had been sealed.  Mr. Toomin noted many forms required criminal history information and contain the phrase "under penalty of perjury."  Mr. Graham added the sealing statute specifically addressed this concern and did not require petitioners divulge their criminal history information.

 

In response to Mr. Regan's inquiry, Mr. Graham explained when documents were certified, seals were inscribed by the departments issuing those documents.  The documents could also be notarized.  He understood the information would be under the seal of the agencies the information originated from.  According to Mr. Graham, the release of criminal information might not require notarization although affirmation from the holders of the documents would be needed.

 

Mr. Petrak used the scenario where convicted felons had the right to vote taken from them and the individuals later decided to request their civil rights be restored.  He asked would the individuals apply for clemencies in these instances?  Did these actions tie in with the provisions contained in A.B. 81?   Mr. Graham stated individuals could have their civil rights restored before they had their records sealed.  He added the processes were different but the concepts were the same.

 

Mr. Graham stated those individuals with misdemeanor charges who had stayed out of trouble for 5 years or more, should petition the courts to have their criminal records sealed.  In cases of felony convictions, the individuals were required to have had clear criminal records for 15 years or more before these records could be sealed.

 

Having no further testimony in reference to A.B. 62, Vice Chairman Porter closed the hearing.

 

 

 

 

ASSEMBLY BILL NO. 71.         Revises provisions governing                                  return of property retained as                                     evidence.

 

Mr. Ben Graham, Legislative Liaison, Nevada District Attorney's Association, testified on behalf of A.B. 71.  He stated the purpose for A.B. 71 would be to set prescribed manners and time limits for returning stolen property to victims.

 

Mr. Graham suggested amendments be made to A.B. 71.  On page 1, Section 1, Subsection 1, line 10, following the words "request within," delete the language through line 15 and insert the phrase "120 days."  On page 1, Section 1, Subsection 1, line 18, delete the bracket before the period.  Also, page 1, Section 1, Subsection 3,  delete lines 19 and 20.

 

Mr. Graham explained reclaiming stolen property entailed lengthy processes identifying the stolen merchandise.  A.B. 71 would allow victims to request stolen property be returned within a reasonable period of time.  The bill would also allow the state and the defendants the right to inspect the stolen property.  After individuals inspected the merchandise, the law enforcement agencies would have 30 days in which to return the evidence.   Mr. Graham stated he thought the bill was open-ended as defendants had the right to view the stolen merchandise to determine their defense positions.  Under Subsections A and B, he noted it was still under scrutiny when stolen property would be required to be returned in the event the property was not returned within the stipulated time frame. 

 

In response to Mr. Porter's question, Mr. Graham explained the processes victims went through to reclaim stolen properties.  Initially, victims needed to contact the responsible law enforcement entities, after which the appropriate case files would be pulled.  The  Assistant District Attorney would review the cases and make the determinations.  Mr. Graham noted there were no deadlines for these processes.  Mr. Porter added A.B. 71 would force the responding law enforcement agencies to return the stolen merchandise within the 120 day mandatory time frame.  He asked if the District Attorney's Association wanted these restrictions and referenced cases where charges had not yet been filed.  Mr. Graham noted in these particular instances, Subsection 3 would have to be referenced to ask for retainment of the stolen properties. 

 

Mr. Graham addressed Mr. Anderson's concerns in reference to the  photographic processes which would not be deleted from A.B. 71 entirely as it was addressed under the amended Subsection 4, line 25.

 

Mr. Porter asked if the provision under A.B. 71 would have an impact on the forfeiture statutes.  Mr. Graham replied the bill would not impact the forfeiture statutes.  He stated A.B. 71 pertained more to stolen personal property.

 

According to Mr. Graham, what Mr. Porter had alluded to were the issues under the forfeiture statutes.  These would entail certain assets purchased with proceeds derived from illegal activities, or properties used in illegal activities and seized by law enforcement agencies generally pursuant to warrants.  The state could file for forfeiture proceedings and maintain the victims could not receive the stolen properties because the merchandise was being held as evidence.  The primary abusers of the forfeiture statutes occurred more with the federal entities than with the state.  Mr. Graham continued, if stolen properties were not returned to the victims within the mandated 120 days, the retainers of the evidence would be required to motion the courts as to why the merchandise was held. 

 

Mr. Scherer referenced A.B. 71, Subsection 3, line 23 which pertained to instances where charges had not been filed.  He surmised if individuals were to make requests to reclaim stolen properties and charges had not been filed, the individuals would need to present notices to the opposing parties.  Mr. Scherer asked if charges had not been filed, what would constitute the opposing parties?  Would they be the potential defendants or the owners of the properties?  Mr. Graham replied any concerned individuals could be the opposing parties.

 

Mr. Graham elaborated by saying the opposing parties use to be whomever had definable interests prior to notice being given.  The statute had been changed during the 1991 Legislative Session to define individuals who claimed interest could defend.  This was not an exclusive issue but more a matter of an inclusive matter.  He added in instances where two parties wanted property back and the state had possession of the properties, the State of Nevada would be named as the opposing party.  In instances where the state wanted to retain properties, notices were required to be issued to whomever the properties were seized from or to individuals that had interests in the properties. 

 

Mr. Regan queried how individuals with fiduciary concerns would be impacted by A.B. 71 such as the lienholder of stolen vehicles.  Would leinholders be notified in these cases?   Mr. Graham was certain the leinholders would be notified.

 

There being no further testimony presented, Vice Chairman Porter closed the hearing on A.B. 71.

 

 

 

 

ASSEMBLY BILL NO. 81.         Makes various changes relating to                                 filing of criminal informations.

 

Mr. Ben Graham, Legislative Liaison, Nevada District Attorney's Association, was the prime sponsor of A.B. 81.  He suggested to amend page 2, Section 1, line 4 by deleting the word "original" and add "Effective upon passage and approval."  He presented the issues passage of the bill would address.

 

Mr. Porter informed the committee there were two ways in which the state could elect to charge individuals with crimes.   One process would be through the grand jury where the findings of probable cause would be handed down.  The individuals would then proceed directly to District Court.  The second process would entail filing the information.  According to Mr. Porter, if the charges were felony charges, the defendants would be arraigned and given the rights to preliminary hearings.  Preliminary hearings must be conducted within 15 days unless the defendants waived their rights.

 

Mr. Porter summarized the intent of the provisions in A.B. 81 which would provide the authority to charge the defendants, prior to entering into the preliminary hearing stage, with the original counts.  The District Attorneys would then have some leverage and could approach the defendants to offer them the lesser charges.  In most cases, the defendants would plead guilty to the lesser charges.  As a result of this action, the District Attorney's could go directly to the District Court and file the information charging the lesser charges.  A proceeding would be conducted at this time and the defendants would be questioned.  It would be at this time the defendants would present their explanations.  The state would then note the defendants waived the other charges.  Mr. Porter concluded the actions waived could then be filed and a trial date set.

 

There being no further testimony, the hearing on A.B. 81 was closed.

 

Vice Chairman Porter stated the bills would be voted on at a later date due to the absence of Chairman Sader.

 

 

 

 

 

 

There being no further testimony to come before the committee the hearing adjourned at 8:52 a.m.

 

 

      RESPECTFULLY SUBMITTED:

 

 

                            

      JESSIE A. CAPLE       

      Committee Secretary   

 

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Assembly Committee on Judiciary

February 23, 1993

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