Assembly Bill No. 328–Assemblymen Giunchigliani, Anderson, Arberry, Bache, Freeman, Goldwater, Oceguera and Williams

 

March 13, 2001

____________

 

Joint Sponsor: Senator Neal

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes various changes concerning sealing of criminal records and restoration of civil rights. (BDR 14‑122)

 

FISCAL NOTE:            Effect on Local Government: No.

                                    Effect on the State: No.

 

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

 

AN ACT relating to criminal records; requiring information concerning the sealing of records and restoration of civil rights to be provided to certain persons; reducing the time required to lapse before a petition to seal criminal records may be brought; making various other changes concerning sealing criminal records; revising provisions governing the restoration of civil rights; 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. Chapter 175 of NRS is hereby amended by adding thereto a

1-2  new section to read as follows:

1-3    Upon the entry of a judgment of acquittal, the court shall provide the

1-4  defendant with a written notice of the provisions of NRS 179.255 which

1-5  concern the sealing of records of the proceedings leading to the acquittal.

1-6    Sec. 2.  NRS 176A.850 is hereby amended to read as follows:

1-7    176A.850  1.  A person who:

1-8    (a) Has fulfilled the conditions of his probation for the entire period

1-9  thereof;

1-10    (b) Is recommended for earlier discharge by the division; or

1-11    (c) Has demonstrated his fitness for honorable discharge but because of

1-12  economic hardship, verified by a parole and probation officer, has been

1-13  unable to make restitution as ordered by the court,

2-1  may be granted an honorable discharge from probation by order of the

2-2  court.

2-3    2.  Any amount of restitution remaining unpaid constitutes a civil

2-4  liability arising upon the date of discharge.

2-5    3.  A person honorably discharged from probation is free from the

2-6  terms and conditions of his probation and may apply to the court, in person

2-7  or by attorney, pursuant to NRS 176A.860, for the restoration of his civil

2-8  rights[.] and, pursuant to NRS 179.245, for the sealing of records

2-9  relating to his conviction. He must be informed of [this privilege] these

2-10  privileges in his probation papers.

2-11    4.  A person honorably discharged from probation who has had his civil

2-12  rights restored by the court:

2-13    (a) Is exempt from the requirements of chapter 179C of NRS, but is not

2-14  exempt from the requirements of chapter 179D of NRS.

2-15    (b) May vote, hold office or serve as a juror.

2-16    (c) Shall disclose the conviction to a gaming establishment and the

2-17  state, its agencies, departments, boards, commissions and political

2-18  subdivisions, if required in an application for employment, license or other

2-19  permit. As used in this paragraph, “establishment” has the meaning

2-20  ascribed to it in NRS 463.0148.

2-21    (d) Except as otherwise provided in paragraph (c), need not disclose the

2-22  conviction to an employer or prospective employer.

2-23    5.  The prior conviction of a person whose civil rights have been

2-24  restored or who has been honorably discharged from probation may be

2-25  used for purposes of impeachment. In any subsequent prosecution of the

2-26  person who has had his civil rights restored or who has been honorably

2-27  discharged from probation, the prior conviction may be pleaded and proved

2-28  if otherwise admissible.

2-29    Sec. 3.  Chapter 178 of NRS is hereby amended by adding thereto a

2-30  new section to read as follows:

2-31    Upon the entry of an order dismissing a criminal action or proceeding,

2-32  the court shall provide the defendant with a written notice of the

2-33  provisions of NRS 179.255 which concern the sealing of records of the

2-34  proceedings leading to the dismissal.

2-35    Sec. 4.  NRS 179.245 is hereby amended to read as follows:

2-36    179.245  1.  Except as otherwise provided in subsection 5 and NRS

2-37  453.3365, a person who has been convicted of:

2-38    (a) Any felony may, after [15] 3 years from the date of his conviction

2-39  or, if he is imprisoned, or on parole or probation, from the date of his

2-40  release from actual custody[;] , or discharge from parole or probation,

2-41  whichever occurs later;

2-42    (b) Any gross misdemeanor may, after [10] 2 years from the date of his

2-43  conviction or , if he is incarcerated or on probation, from the date of his

2-44  release from custody[;] or discharge from probation, whichever occurs

2-45  later;

2-46    (c) A violation of NRS 484.379 other than a felony, or a battery which

2-47  constitutes domestic violence pursuant to NRS 33.018 other than a felony

2-48  may, after [7] 2 years from the date of his conviction or , if he is

2-49  incarcerated or has had his sentence suspended, from the date of his

3-1  release from custody[;] or from the date when he is no longer under a

3-2  suspended sentence, whichever occurs later; or

3-3    (d) Any other misdemeanor may, after [5 years] 1 year from the date of

3-4  his conviction or , if he is incarcerated or has had his sentence

3-5  suspended, from the date of his release from custody[,] or from the date

3-6  when he is no longer under a suspended sentence, whichever occurs

3-7  later,

3-8  petition the court in which the conviction was obtained for the sealing of

3-9  all records relating to the conviction.

3-10    2.  A petition filed pursuant to subsection 1 must [be] :

3-11    (a) Be accompanied by current, verified records of the petitioner’s

3-12  criminal history received from:

3-13    [(a)] (1) The central repository for Nevada records of criminal history;

3-14  and

3-15    [(b)] (2) The local law enforcement agency of the city or county in

3-16  which the conviction was entered[.] ;

3-17    (b) Include a list of any other public or private agency, company,

3-18  official or other custodian of records that is reasonably known to the

3-19  petitioner to have possession of records of the conviction and to whom

3-20  the order to seal records, if issued, will be directed; and

3-21    (c) Include information that, to the best knowledge and belief of the

3-22  petitioner, accurately and completely identifies the records to be sealed.

3-23    3.  Upon receiving a petition pursuant to this section, the court shall

3-24  notify[:] the law enforcement agency that arrested the petitioner for the

3-25  crime and:

3-26    (a) [The] If the person was convicted in a district court or justice’s

3-27  court, the prosecuting attorney for the county; or

3-28    (b) If the person was convicted in a municipal court, the prosecuting

3-29  attorney for the city.

3-30  The prosecuting attorney and any person having relevant evidence may

3-31  testify and present evidence at the hearing on the petition.

3-32    4.  If, after the hearing, the court finds that, in the period prescribed in

3-33  subsection 1, the petitioner has not been [arrested,] charged with any

3-34  offense for which the charges are pending or convicted of any offense,

3-35  exceptfor minor moving or standing traffic violations, the court may order

3-36  sealed all records of the conviction which are in the custody of the court, of

3-37  another court in the State of Nevada or of a public or private agency,

3-38  company or official in the State of Nevada, and may also order all such

3-39  criminal identification records of the petitioner returned to the file of the

3-40  court where the proceeding was commenced from, including, but not

3-41  limited to, the Federal Bureau of Investigation, the California identification

3-42  and investigation bureau, sheriffs’ offices and all other law enforcement

3-43  agencies reasonably known by either the petitioner or the court to have

3-44  possession of such records.

3-45    5.  A person may not petition the court to seal records relating to a

3-46  conviction of a crime against a child or a sexual offense.

3-47    6.  If the court grants a petition for the sealing of records pursuant to

3-48  this section, upon the request of the person whose records are sealed, the

4-1  court may order sealed all records of the civil proceeding in which the

4-2  records were sealed.

4-3    7.  As used in this section:

4-4    (a) “Crime against a child” has the meaning ascribed to it in NRS

4-5  179D.210.

4-6    (b) “Sexual offense” has the meaning ascribed to it in NRS 179D.410.

4-7    Sec. 5.  NRS 179.255 is hereby amended to read as follows:

4-8    179.255  1.  If a person has been arrested for alleged criminal conduct

4-9  and the charges are dismissed or such person is acquitted of the charges,

4-10  the person may petition:

4-11    (a) The court in which the charges were dismissed, [not earlier than 30

4-12  days from] at any time after the date the charges were dismissed; or

4-13    (b) The court in which the acquittal was entered, [not earlier than 30

4-14  days from] at any time after the date of the acquittal,

4-15  for the sealing of all records relating to the arrest and the proceedings

4-16  leading to the dismissal or acquittal.

4-17    2.  A petition filed pursuant to this section must [be] :

4-18    (a) Be accompanied by a current, verified record of the criminal history

4-19  of the petitioner received from the local law enforcement agency of the city

4-20  or county in which the petitioner appeared in court[.] ;

4-21    (b) Include a list of any other public or private agency, company,

4-22  official or other custodian of records that is reasonably known to the

4-23  petitioner to have possession of records of the arrest and of the

4-24  proceedings leading to the dismissal or acquittal and to whom the order

4-25  to seal records, if issued, will be directed; and

4-26    (c) Include information that, to the best knowledge and belief of the

4-27  petitioner, accurately and completely identifies the records to be sealed.

4-28    3.  Upon receiving a petition pursuant to this section, the court shall

4-29  notify[:] the law enforcement agency that arrested the petitioner for the

4-30  crime and:

4-31    (a) [The] If the charges were dismissed or the acquittal was entered in

4-32  a district court or justice’s court, the prosecuting attorney for the county;

4-33  or

4-34    (b) If the charges were dismissed or the acquittal was entered in a

4-35  municipal court, the prosecuting attorney for the city.

4-36  The prosecuting attorney and any person having relevant evidence may

4-37  testify and present evidence at the hearing on the petition.

4-38    4.  If, after the hearing, the court finds that there has been an acquittal

4-39  or that the charges were dismissed and there is no evidence that further

4-40  action will be brought against the person, the court may order sealed all

4-41  records of the arrest and of the proceedings leading to theacquittal or

4-42  dismissal which are in the custody of the court, of another court in the

4-43  State of Nevada or of a public or private company, agency or official in the

4-44  State of Nevada.

4-45    Sec. 6.  NRS 179.285 is hereby amended to read as follows:

4-46    179.285  Except as otherwise provided in NRS 179.301, if the court

4-47  orders a record sealed pursuant to NRS 179.245, 179.255 or 453.3365[,

4-48  all] :

5-1    1.  All proceedings recounted in the record are deemed never to have

5-2  occurred, and the person to whom [it] the order pertains may properly

5-3  answer accordingly to any inquiry concerning the arrest, conviction ,

5-4  dismissal or acquittal and the events and proceedings relating to the arrest,

5-5  conviction , dismissal or acquittal.

5-6    2.  Except as otherwise provided by specific statute, a public or

5-7  private employer in this state, including, without limitation, the State of

5-8  Nevada, any agency of this state and any political subdivision of the

5-9  state, shall not require a person to whom an order pertains to answer any

5-10  inquiry concerning the arrest, conviction, dismissal or acquittal and the

5-11  events and proceedings relating to the arrest, conviction, dismissal or

5-12  acquittal as a condition of his employment or his continued employment.

5-13    Sec. 7.  NRS 179.295 is hereby amended to read as follows:

5-14    179.295  1.  The person who is the subject of the records that are

5-15  sealed pursuant to NRS 179.245, 179.255 or 453.3365 may petition the

5-16  court that ordered the records sealed to permit inspection of the records by

5-17  a person named in the petition, and the court may order such inspection.

5-18  Except as otherwise provided in this section and NRS 179.301, the court

5-19  may not order the inspection of the records under any other circumstances.

5-20    2.  If a person has been arrested, the charges have been dismissed and

5-21  the records of the arrest have been sealed, the court may order the

5-22  inspection of the records by a prosecuting attorney upon a showing that as

5-23  a result of newly discovered evidence, the person has been arrested for the

5-24  same or similar offense and that there is sufficient evidence reasonably to

5-25  conclude that he will stand trial for the offense.

5-26    3.  The court may, upon the application of a prosecuting attorney or an

5-27  attorney representing a defendant in a criminal action, order an inspection

5-28  of such records for the purpose of obtaining information relating to persons

5-29  who were involved in the incident recorded.

5-30    4.  This section does not prohibit a court from considering a

5-31  conviction for which records have been sealed pursuant to NRS 179.245,

5-32  179.255 or 453.3365 in determining whether to grant a petition pursuant

5-33  to NRS 179.245, 179.255 or 453.3365 for a conviction of another offense.

5-34    Sec. 8.  NRS 179A.160 is hereby amended to read as follows:

5-35    179A.160  [At any time after a date 5 years after the arrest of a person,

5-36  or after 5 years after the date of issuance of a citation or warrant, for an

5-37  offense for which the person was acquitted or which ended in a disposition

5-38  favorable to the person,]

5-39    1.  If a person has been arrested or issued a citation, or has been the

5-40  subject of a warrant for alleged criminal conduct and the person is

5-41  acquitted of the charge or the disposition of the charge is favorable to the

5-42  person, at any time after the charge is dismissed, acquittal is entered or

5-43  disposition of the charge in favor of the person is final, the person who is

5-44  the subject of a record of criminal history relating to the arrest, citation or

5-45  warrant may apply in writing to the central repository and the agency

5-46  which maintains the record to have it removed from the files which are

5-47  available and generally searched for the purpose of responding to inquiries

5-48  concerning the criminal history of a person.

6-1    2.  The central repository and the agency shall remove the record

6-2  unless:

6-3    [1.] (a) The defendant is a fugitive[.

6-4    2.] ;

6-5    (b) The case is under active prosecution according to a current

6-6  certificate of a prosecuting attorney[.

6-7    3.] ;

6-8    (c) The disposition of the case was a deferred prosecution, plea bargain

6-9  or other similar disposition[.

6-10    4.] ;

6-11    (d) The person who is the subject of the record has a prior conviction

6-12  for a felony or gross misdemeanor in any jurisdiction in the United States[.

6-13    5.] ; or

6-14    (e) The person who is the subject of the record has been arrested for or

6-15  charged with another crime, other than a minor traffic violation, [during the

6-16  5 years] since the arrest, citation or warrant which he seeks to have

6-17  removed from the record.

6-18  3. This section does not restrict the authority of a court to order the

6-19  deletion or modification of a record in a particular cause or concerning

6-20  a particular person or event.

6-21    Sec. 9.  NRS 209.511 is hereby amended to read as follows:

6-22    209.511  1.  When an offender is released from prison by expiration of

6-23  his term of sentence, by pardon or by parole, the director:

6-24    (a) May furnish him with a sum of money not to exceed $100, the

6-25  amount to be based upon the offender’s economic need as determined by

6-26  the director ; [.]

6-27    (b) Shall give him notice of the provisions of chapter 179C of NRS and

6-28  NRS 202.360 ; [.]

6-29    (c) Shall require him to sign an acknowledgment of the notice required

6-30  in paragraph (b) ; [.]

6-31    (d) Shall give him notice of the provisions of NRS 179.245 and the

6-32  provisions of NRS 213.090, 213.155 or 213.157, as applicable;

6-33    (e) May provide him with clothing suitable for reentering society[.

6-34    (e)] ;

6-35    (f) May provide him with the cost of transportation to his place of

6-36  residence anywhere within the continental United States, or to the place of

6-37  his conviction[.

6-38    (f)] ; and

6-39    (g) Shall require him to submit to at least one test for exposure to the

6-40  human immunodeficiency virus.

6-41    2.  The costs authorized in paragraphs (a), [(d), (e) and] (e), (f) and (g)

6-42  of subsection 1 must be paid out of the appropriate account within the state

6-43  general fund for the use of the department as other claims against the state

6-44  are paid to the extent that the costs have not been paid in accordance with

6-45  subsection 5 of NRS 209.221 and NRS 209.246.

6-46    Sec. 10.  NRS 213.090 is hereby amended to read as follows:

6-47    213.090  1.  When a pardon is granted for any offense committed, the

6-48  pardon may or may not include restoration of civil rights. If the pardon

6-49  includes restoration of civil rights, it shall be so stated in the instrument or

7-1  certificate of pardon; and when granted upon conditions, limitations or

7-2  restrictions, they shall be fully set forth in the instrument.

7-3    2.  In any case where a convicted person has received a pardon without

7-4  immediate restoration of his civil rights and has not been convicted of any

7-5  offense greater than a traffic violation within [5] 3 years after such pardon,

7-6  he may apply to the state board of pardons commissioners for restoration of

7-7  his civil rights and release from penalties and disabilities resulting from the

7-8  offense or crime of which he was convicted. If, after investigation, the

7-9  board determines that the applicant meets the requirements of this

7-10  subsection, it shall restore him to his civil rights and release him from all

7-11  penalties and disabilities resulting from the offense or crime of which he

7-12  was convicted. If the board refuses to grant such restoration and release,

7-13  the applicant may, after notice to the board, petition the district court in

7-14  which the conviction was obtained for an order directing the board to grant

7-15  such restoration and release.

7-16    Sec. 11.  NRS 213.155 is hereby amended to read as follows:

7-17    213.155  1.  The board may restore a paroled prisoner to his civil

7-18  rights, conditioned upon the prisoner receiving an honorable discharge

7-19  from parole pursuant to NRS 213.154. Such restoration must take effect at

7-20  the expiration of the parole of the prisoner.

7-21    2.  In any case where a convicted person has completed his parole

7-22  without immediate restoration of his civil rights, has been issued an

7-23  honorable discharge from parole pursuant to NRS 213.154 and has not

7-24  been convicted of any offense greater than a traffic violation within [5] 3

7-25  years after completion of parole, he may apply to the state board of parole

7-26  commissioners for restoration of his civil rights and release from penalties

7-27  and disabilities which resulted from the offense or crime of which he was

7-28  convicted. The application must be accompanied by a current, certified

7-29  record of the applicant’s criminal history received from the central

7-30  repository for Nevada records of criminal history. If, after investigation,

7-31  the board determines that the applicant meets the requirements of this

7-32  subsection, it shall restore him to his civil rights and release him from all

7-33  penalties and disabilities resulting from the offense or crime of which he

7-34  was convicted. If the board refuses to grant such restoration and release,

7-35  the applicant may, after notice to the board, petition the district court in

7-36  which the conviction was obtained for an order directing the board to grant

7-37  such restoration and release.

7-38    3.  The board may adopt regulations necessary or convenient for the

7-39  purposes of this section.

7-40    Sec. 12.  NRS 213.157 is hereby amended to read as follows:

7-41    213.157  In any case where a person convicted of a felony in the State

7-42  of Nevada has served his sentence and been released from prison, and has

7-43  not been convicted of any offense greater than a traffic violation within [5]

7-44  3 years of his release, he may apply to the division requesting restoration of

7-45  his civil rights and release from all penalties and disabilities which resulted

7-46  from the offense or crime of which he was convicted. The application must

7-47  be accompanied by a current, certified record of the applicant’s criminal

7-48  history received from the central repository for Nevada records of criminal

7-49  history. If, after investigation, the division determines that the applicant

8-1  meets the requirements of this section, it shall petition the district court in

8-2  which the conviction was obtained for an order granting such restoration

8-3  and release. If the division refuses to submit such petition, the applicant

8-4  may, after giving notice to the division, petition such court directly for the

8-5  restoration of his civil rights and release from all penalties and disabilities

8-6  which resulted from the offense or crime of which he was convicted.

8-7    Sec. 13.  The amendatory provisions of this act apply to:

8-8    1.  A petition for an order to seal records pursuant to NRS 179.245 or

8-9  179.255 that is filed on or after the effective date of this act.

8-10    2.  An application for restoration of civil rights pursuant to NRS

8-11  213.090, 213.155 or 213.157 that is filed on or after the effective date of

8-12  this act.

8-13    Sec. 14.  This act becomes effective upon passage and approval.

 

8-14  H