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

 

Joint Sponsor: Senator Neal

 

CHAPTER..........

 

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 certain 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:

 

   Section 1. Chapter 175 of NRS is hereby amended by adding thereto a

 new section to read as follows:

   Upon the entry of a judgment of acquittal, the court shall provide the

 defendant with a written notice of the provisions of NRS 179.255 which

 concern the sealing of records of the proceedings leading to the

 acquittal.

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

   176A.850  1.  A person who:

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

 thereof;

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

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

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

 unable to make restitution as ordered by the court,

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

 court.

   2.  Any amount of restitution remaining unpaid constitutes a civil

 liability arising upon the date of discharge.

   3.  A person honorably discharged from probation is free from the

 terms and conditions of his probation and may apply to the [court,]

 division, in person or by attorney, pursuant to NRS 176A.860, for the

 restoration of his civil rights[.] and, to the court, pursuant to NRS

 179.245, for the sealing of records relating to his conviction. He must be

 informed of [this privilege] these privileges in his probation papers.

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

 rights restored by the court:

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

 exempt from the requirements of chapter 179D of NRS.

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

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

 state, its agencies, departments, boards, commissions and political

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

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

 ascribed to it in NRS 463.0148.

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

 conviction to an employer or prospective employer.

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

restored or who has been honorably discharged from probation may be

 used for purposes of impeachment. In any subsequent prosecution of the

 person who has had his civil rights restored or who has been honorably

 discharged from probation, the prior conviction may be pleaded and

 proved if otherwise admissible.

   Sec. 3.  NRS 176A.860 is hereby amended to read as follows:

   176A.860  [A convicted person who]

   1.  If a person is granted an honorable discharge from probation, [who

 has] not sooner than 6 months after his honorable discharge, the person

 may apply to the division to request a restoration of his civil rights if the

 person:

   (a) Has not previously been restored to his civil rights[, and who is] ;

 and

   (b) Has not been convicted of any offense greater than a traffic

 violation[within 6 months after the discharge, may apply] after his

 honorable discharge.

   2.  If a person applies to the division to request a restoration of his

 civil rights[. The application must be accompanied by] , the person must

 submit with his application a current, certified record of [the applicant’s]

 his criminal history received from the central repository for Nevada

 records of criminal history. If the division determines after an

 investigation that the [applicant] person meets the requirements of this

 section, [it] the division shall petition the court in which the [applicant]

 person was convicted for an order granting the restoration[.] of his civil

 rights. If the division refuses to submit such a petition, the [applicant]

 person may, after notice to the division, directly petition the court for an

 order granting the restoration of his civil rights.

   Sec. 4.  Chapter 178 of NRS is hereby amended by adding thereto a

 new section to read as follows:

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

 the court shall provide the defendant with a written notice of the

 provisions of NRS 179.255 which concern the sealing of records of the

 proceedings leading to the dismissal.

   Sec. 5.  NRS 179.245 is hereby amended to read as follows:

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

 453.3365, a person [who has been convicted of:] may petition the court in

 which he was convicted for the sealing of all records relating to a

 conviction of:

   (a) [Any felony may,] A category A or B felony after 15 years from the

 date of his [conviction or, if he is imprisoned, from the date of his] release

 from actual custody [;] or discharge from parole or probation, whichever

 occurs later;

   (b) A category C or D felony after 12 years from the date of his release

 from actual custody or discharge from parole or probation, whichever

 occurs later;

   (c) A category E felony after 10 years from the date of his release

 from actual custody or discharge from parole or probation, whichever

 occurs later;

   (d) Any gross misdemeanor [may, after 10] after 7 years from the date

of his [conviction or] release from actual custody[;

   (c)] or discharge from probation, whichever occurs later;

   (e) A violation of NRS 484.379 other than a felony, or a battery which

 constitutes domestic violence pursuant to NRS 33.018 other than a felony ,

 [may,] after 7 years from the date of his [conviction or,] release from

 actual custody [; or

   (d)] or from the date when he is no longer under a suspended

 sentence, whichever occurs later; or

   (f) Any other misdemeanor [may, after 5] after 3 years from the date of

 his [conviction or] release from actual custody[,

petition the court in which the conviction was obtained for the sealing of

 all records relating to the conviction.] or from the date when he is no

 longer under a suspended sentence, whichever occurs later.

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

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

 criminal history received from:

   [(a)] (1) The central repository for Nevada records of criminal

history; and

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

 which the conviction was entered[.] ;

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

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

 petitioner to have possession of records of the conviction and to whom

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

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

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

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

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

 crime and:

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

 court, the prosecuting attorney for the county; or

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

 attorney for the city.

The prosecuting attorney and any person having relevant evidence may

 testify and present evidence at the hearing on the petition.

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

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

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

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

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

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

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

 criminal identification records of the petitioner returned to the file of the

 court where the proceeding was commenced from, including, but not

 limited to, the Federal Bureau of Investigation, the California

 identification and investigation bureau, sheriffs’ offices and all other law

 enforcement agencies reasonably known by either the petitioner or the

 court to have possession of such records.

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

conviction of a crime against a child or a sexual offense.

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

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

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

 records were sealed.

   7.  As used in this section:

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

 179D.210.

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

   Sec. 6.  NRS 179.255 is hereby amended to read as follows:

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

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

 the person may petition:

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

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

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

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

for the sealing of all records relating to the arrest and the proceedings

 leading to the dismissal or acquittal.

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

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

 of the petitioner received from the local law enforcement agency of the

 city or county in which the petitioner appeared in court[.] ;

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

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

 petitioner to have possession of records of the arrest and of the

 proceedings leading to the dismissal or acquittal and to whom the order

 to seal records, if issued, will be directed; and

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

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

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

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

 crime and:

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

 a district court or justice’s court, the prosecuting attorney for the

county; or

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

 municipal court, the prosecuting attorney for the city.

The prosecuting attorney and any person having relevant evidence may

 testify and present evidence at the hearing on the petition.

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

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

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

 records of the arrest and of the proceedings leading to theacquittal or

 dismissal which are in the custody of the court, of another court in the

 State of Nevada or of a public or private company, agency or official in

 the State of Nevada.

 

 

   Sec. 7.  NRS 179.285 is hereby amended to read as follows:

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

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

 all] :

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

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

 answer accordingly to any inquiry concerning the arrest, conviction ,

 dismissal or acquittal and the events and proceedings relating to the arrest,

 conviction , dismissal or acquittal.

   2.  The court shall order the civil rights of the person to whom the

 order pertains to be restored if the person has not been restored to his

 civil rights.

   Sec. 8.  NRS 179.295 is hereby amended to read as follows:

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

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

 court that ordered the records sealed to permit inspection of the records by

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

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

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

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

 the records of the arrest have been sealed, the court may order the

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

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

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

 conclude that he will stand trial for the offense.

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

 attorney representing a defendant in a criminal action, order an inspection

 of such records for the purpose of obtaining information relating to

 persons who were involved in the incident recorded.

   4.  This section does not prohibit a court from considering a

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

 179.255 or 453.3365 in determining whether to grant a petition pursuant

 to NRS 179.245, 179.255 or 453.3365 for a conviction of another

 offense.

   Sec. 9.  NRS 179A.160 is hereby amended to read as follows:

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

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

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

 favorable to the person,]

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

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

 acquitted of the charge or the disposition of the charge is favorable to

 the person, at any time after the charge is dismissed, acquittal is entered

 or disposition of the charge in favor of the person is final, the person

 who is the subject of a record of criminal history relating to the arrest,

 citation or warrant may apply in writing to the central repository and the

 agency which maintains the record to have it removed from the files which

 are available and generally searched for the purpose of responding to

 inquiries concerning the criminal history of a person.

   2.  The central repository and the agency shall remove the record

 unless:

   [1.] (a) The defendant is a fugitive[.

   2.] ;

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

 certificate of a prosecuting attorney[.

   3.] ;

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

 or other similar disposition[.

   4.] ;

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

 for a felony or gross misdemeanor in any jurisdiction in the United States

 [.

   5.] ; or

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

 charged with another crime, other than a minor traffic violation, [during

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

 removed from the record.

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

 deletion or modification of a record in a particular cause or concerning

 a particular person or event.

   Sec. 10.  NRS 209.511 is hereby amended to read as follows:

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

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

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

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

 the director ; [.]

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

 NRS 202.360 ; [.]

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

 in paragraph (b) ; [.]

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

 provisions of NRS 213.090, 213.155 or 213.157, as applicable;

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

   (e)] ;

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

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

 his conviction[.

   (f)] ; and

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

 human immunodeficiency virus.

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

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

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

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

 subsection 5 of NRS 209.221 and NRS 209.246.

   Sec. 11.  NRS 213.090 is hereby amended to read as follows:

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

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

 includes restoration of civil rights, it [shall] must be so stated in the

 instrument or certificate of [pardon;] pardon and , when granted upon

 conditions, limitations or restrictions, they [shall] must be fully set forth in

 the instrument.

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

immediate restoration of his civil rights , [and has not been convicted of

 any offense greater than a traffic violation within 5 years after such

 pardon,] he may apply to the state board of pardons commissioners for

 restoration of his civil rights and release from penalties and disabilities

 resulting from the offense or crime of which he was convicted. [If, after

 investigation,]

   3.  Upon receiving an application pursuant to subsection 2, the board

 [determines that] shall determine whether the applicant [meets the

 requirements of this subsection, it] has received a pardon. If the board

 determines that the applicant has received a pardon, the board shall , as

 soon as reasonably practicable, restore him to his civil rights and release

 him from all penalties and disabilities resulting from the offense or crime

 of which he was convicted. [If the board refuses to grant such restoration

 and release, the applicant may, after notice to the board, petition the

 district court in which the conviction was obtained for an order directing

 the board to grant such restoration and release.]

   4.  An applicant must not be required to pay a fee to have his civil

 rights restored or to be released from penalties and disabilities pursuant

 to this section.

   Sec. 12.  NRS 213.155 is hereby amended to read as follows:

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

 rights, conditioned upon the prisoner receiving an honorable discharge

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

 the expiration of the parole of the prisoner.

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

 without immediate restoration of his civil rights [,] and has been issued an

 honorable discharge from parole pursuant to NRS 213.154 , [and has not

 been convicted of any offense greater than a traffic violation within 5

 years after completion of parole,] he may apply to the [state board of

 parole commissioners for] division to request a restoration of his civil

 rights and release from penalties and disabilities which resulted from the

 offense or crime of which he was convicted. [The application must be

 accompanied by a current, certified record of the applicant’s criminal

 history received from the central repository for Nevada records of criminal

 history. If, after investigation, the board determines that the applicant

 meets the requirements of this subsection, it]

   3.  Upon receiving an application pursuant to subsection 2, the

 division shall determine whether the applicant has received an

 honorable discharge from parole. If the division determines that the

 applicant has received an honorable discharge, the division shall

 forward the application to the board.

   4.  Upon receiving an application pursuant to subsection 3, the board

 shall , as soon as reasonably practicable, restore [him] the applicant to

 his civil rights and release him from all penalties and disabilities resulting

 from the offense or crime of which he was convicted. [If the board refuses

 to grant such restoration and release, the applicant may, after notice to the

 board, petition the district court in which the conviction was obtained for

 an order directing the board to grant such restoration and release.]

   5.  An applicant must not be required to pay a fee to have his civil

rights restored or to be released from penalties and disabilities pursuant

 to this section.

   [3.] 6.  The board may adopt regulations necessary or convenient for

 the purposes of this section.

   Sec. 13.  NRS 213.157 is hereby amended to read as follows:

   213.157  1.  In any case where a person convicted of a felony in the

 State of Nevada has served his sentence and been released from prison,

 [and has not been convicted of any offense greater than a traffic violation

 within 5 years of his release,] he may apply to the division requesting

 restoration of his civil rights and release from all penalties and disabilities

 which resulted from the offense or crime of which he was convicted. [The

 application must be accompanied by a current, certified record of the

 applicant’s criminal history received from the central repository for

 Nevada records of criminal history. If, after investigation, the division

 determines that the applicant meets the requirements of this section, it

 shall petition]

   2.  Upon receiving an application pursuant to subsection 1, the

 division shall determine whether the applicant has served his sentence

 and been released from prison. If the division determines that the

 applicant has served his sentence and been released from prison, the

 division shall forward the application to the district court in which the

 conviction was obtained . [for an order granting such restoration and

 release. If the division refuses to submit such petition, the applicant may,

 after giving notice to the division, petition such court directly for the

 restoration of his]

   3.  Upon receiving an application pursuant to subsection 2, the court

 shall, as soon as reasonably practicable, restore the civil rights of the

 applicant and release him from all penalties and disabilities which

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

   4.  An applicant must not be required to pay a fee to have his civil

 rights restored or to be released from penalties and disabilities pursuant

 to this section.

   Sec. 14.  The amendatory provisions of this act apply to:

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

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

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

 176A.860, 213.090, 213.155 or 213.157 that is filed on or after the

 effective date of this act.

   Sec. 15.  This act becomes effective upon passage and approval.

 

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