Assembly Bill No. 570–Assemblywoman Chowning (by request)

March 15, 1999

____________

Referred to Committee on Government Affairs

 

SUMMARY—Revises provisions regarding rights of peace officers. (BDR 23-1555)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State or on Industrial Insurance: No.

~

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

 

AN ACT relating to peace officers; revising the provisions regarding the rights of a peace officer during an investigation of his alleged misconduct; repealing the requirement that a peace officer take a polygraphic examination under certain circumstances; 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 289.050 is hereby amended to read as follows:

1-2 289.050 [Except as otherwise provided in NRS 289.070:]

1-3 1. If a peace officer refuses to submit to a polygraphic examination:

1-4 (a) No law enforcement agency may take any disciplinary action against

1-5 such officer; and

1-6 (b) No investigator may make a notation of such refusal in his report,

1-7 absent independent evidence of unlawful conduct by the peace officer.

1-8 2. Evidence of any refusal by a peace officer to submit to a

1-9 polygraphic examination is not admissible if introduced by any

1-10 governmental body or agency in this state at any subsequent hearing, trial

1-11 or other judicial or administrative proceeding.

1-12 Sec. 2. NRS 289.060 is hereby amended to read as follows:

1-13 289.060 1. The agency shall, within a reasonable time before any

1-14 interrogation or hearing is held relating to an investigation of the activities

1-15 of a peace officer which may result in punitive action, provide written

1-16 notice to the officer if practical under the circumstances.

1-17 2. The notice must include:

1-18 (a) A description of the nature of the investigation;

1-19 (b) A summary of alleged misconduct of the peace officer;

2-1 (c) The date, time and place of the interrogation or hearing;

2-2 (d) The name and rank of the officer in charge of the investigation and

2-3 the officers who will conduct any interrogation;

2-4 (e) The name of any other person who will be present at any

2-5 interrogation or hearing; and

2-6 (f) A statement setting forth the provisions of subsection 1 of NRS

2-7 289.080.

2-8 3. The agency shall:

2-9 (a) Interrogate the officer during his regular working hours, if

2-10 reasonably practicable, or compensate him for that time based on his

2-11 regular wages if no charges arise from the interrogation.

2-12 (b) Limit the scope of the questions during the interrogation or hearing

2-13 to the alleged misconduct of the officer.

2-14 (c) Allow the officer to explain an answer or refute a negative

2-15 implication which results from questioning during an interrogation or

2-16 hearing.

2-17 4. Any information obtained involuntarily from a peace officer is

2-18 confidential and is not admissible in this state at a subsequent civil or

2-19 criminal proceeding.

2-20 Sec. 3. NRS 289.080 is hereby amended to read as follows:

2-21 289.080 1. Except as otherwise provided in subsection 2, a peace

2-22 officer may upon request have a lawyer or other representative of his

2-23 choosing present with the peace officer during any phase of an

2-24 interrogation or hearing.

2-25 2. The representative must not otherwise be connected to, or the

2-26 subject of, the same investigation.

2-27 3. Any information that the representative obtains from the peace

2-28 officer concerning the investigation is [confidential] :

2-29 (a) Inadmissible in this state at a subsequent civil or criminal

2-30 proceeding.

2-31 (b) Confidential and must not be disclosed except upon the:

2-32 [(a)] (1) Request of the peace officer; or

2-33 [(b)] (2) Lawful order of a court of competent jurisdiction.

2-34 A law enforcement agency shall not take punitive action against the

2-35 representative for his failure or refusal to disclose such information.

2-36 4. The peace officer or the law enforcement agency may make a

2-37 stenographic or magnetic record of the interrogation or hearing. If the

2-38 agency records the proceedings, the agency shall at the officer’s request

2-39 and expense provide a copy of the:

2-40 (a) Stenographic transcript of the proceedings; or

2-41 (b) Recording on the magnetic tape.

3-1 Sec. 4. NRS 289.090 is hereby amended to read as follows:

3-2 289.090 The provisions of NRS 289.060 [, 289.070] and 289.080 do

3-3 not apply to any investigation which concerns alleged criminal activities.

3-4 Sec. 5. NRS 289.070 is hereby repealed.

 

3-5 TEXT OF REPEALED SECTION

 

3-6 289.070 Investigation of allegation of misconduct; when officer

3-7 may be required to take polygraphic examination; procedure and

3-8 requirements for examination.

3-9 1. An investigation of a peace officer may be conducted in response to

3-10 an allegation that an officer has engaged in activities which could result in

3-11 punitive action.

3-12 2. If a person who makes such an allegation against an officer submits

3-13 to a polygraphic examination and the results of that examination indicate

3-14 that the person examined is telling the truth about the purported activities,

3-15 the officer against whom the allegation is made must submit to a

3-16 polygraphic examination concerning such activities.

3-17 3. If a polygraphic examination is given to an officer pursuant to this

3-18 section, a sound or video recording must be made of the examination, the

3-19 preliminary interview and the post-examination interview. Before the

3-20 opinion of the examiner regarding the officer’s veracity may be considered

3-21 in a disciplinary action, all records, documents and recordings resulting

3-22 from the examination must be made available for review by one or more

3-23 examiners licensed or qualified to be licensed in this state who are

3-24 acceptable to the law enforcement agency and the officer. If the opinion of

3-25 the reviewing examiners does not agree with the initial examiner’s opinion,

3-26 the officer must be allowed to be reexamined by an examiner of his choice

3-27 who is licensed or qualified to be licensed in this state.

3-28 4. The opinion of the examiner regarding the officer’s veracity may

3-29 not be considered in a disciplinary action unless the examination was

3-30 conducted in a manner which complies with the provisions of chapter 648

3-31 of NRS. In any event, the law enforcement agency shall not use the

3-32 examiner’s opinion regarding the veracity of the officer as the sole basis

3-33 for disciplinary action against the officer.

3-34 5. If the officer refuses to submit to a polygraphic examination

3-35 required by this section:

3-36 (a) A law enforcement agency may take disciplinary action against that

3-37 officer; and

3-38 (b) An investigator may make a notation of the refusal in his report.

4-1 6. Evidence of any refusal by a peace officer to submit to a

4-2 polygraphic examination required by this section is admissible if

4-3 introduced by any governmental body or agency in this state at any

4-4 subsequent hearing, trial or other judicial or administrative proceeding.

~