(REPRINTED WITH ADOPTED AMENDMENTS)

 

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.

 

~

 

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 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:

 

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

2-30    176A.860  A convicted person who is granted an honorable discharge

2-31  from probation, who has not previously been restored to his civil rights,

2-32  [and who is not convicted of any offense greater than a traffic violation

2-33  within 6 months after the discharge,] may apply to the division to request a

2-34  restoration of his civil rights. [The application must be accompanied by a

2-35  current, certified record of the applicant’s criminal history received from

2-36  the central repository for Nevada records of criminal history.] If the

2-37  division determines after an investigation that the applicant [meets the

2-38  requirements of this section,] has been granted an honorable discharge

2-39  from probation, it shall petition the court in which the applicant was

2-40  convicted for an order granting the restoration. If the division refuses to

2-41  submit such a petition, the applicant may, after notice to the division,

2-42  directly petition the court for restoration of his civil rights.

2-43    Sec. 4.  Chapter 178 of NRS is hereby amended by adding thereto a

2-44  new section to read as follows:

2-45    Upon the entry of an order dismissing a criminal action or proceeding,

2-46  the court shall provide the defendant with a written notice of the

2-47  provisions of NRS 179.255 which concern the sealing of records of the

2-48  proceedings leading to the dismissal.

 

3-1    Sec. 5.  NRS 179.245 is hereby amended to read as follows:

3-2    179.245  1.  Except as otherwise provided in subsection 5 and NRS

3-3  453.3365, a person who has been convicted of:

3-4    (a) [Any] A category A or B felony may, after 15 years from the date of

3-5  his conviction or, if he is imprisoned, or on parole or probation, from the

3-6  date of his release from actual custody [;] , or discharge from parole or

3-7  probation, whichever occurs later;

3-8    (b) A category C or D felony may, after 12 years from the date of his

3-9  conviction or, if he is imprisoned, or on parole or probation, from the

3-10  date of his release from actual custody, or discharge from parole or

3-11  probation, whichever occurs later;

3-12    (c) A category E felony may, after 10 years from the date of his

3-13  conviction or, if he is imprisoned, or on parole or probation, from the

3-14  date of his release from actual custody, or discharge from parole or

3-15  probation, whichever occurs later;

3-16    (d) Any gross misdemeanor may, after [10] 7 years from the date of his

3-17  conviction or , if he is incarcerated or on probation, from the date of his

3-18  release from custody[;

3-19    (c)] or discharge from probation, whichever occurs later;

3-20    (e) A violation of NRS 484.379 other than a felony, or a battery which

3-21  constitutes domestic violence pursuant to NRS 33.018 other than a felony

3-22  may, after 7 years from the date of his conviction or , if he is incarcerated

3-23  or has had his sentence suspended, from the date of his release from

3-24  custody [; or

3-25    (d)] or from the date when he is no longer under a suspended

3-26  sentence, whichever occurs later; or

3-27    (f) Any other misdemeanor may, after [5] 3 years from the date of his

3-28  conviction or , if he is incarcerated or has had his sentence suspended,

3-29  from the date of his release from custody[,] or from the date when he is

3-30  no longer under a suspended sentence, whichever occurs later,

3-31  petition the court in which the conviction was obtained for the sealing of

3-32  all records relating to the conviction.

3-33    2.  A petition filed pursuant to subsection 1 must [be] :

3-34    (a) Be accompanied by current, verified records of the petitioner’s

3-35  criminal history received from:

3-36    [(a)] (1) The central repository for Nevada records of criminal history;

3-37  and

3-38    [(b)] (2) The local law enforcement agency of the city or county in

3-39  which the conviction was entered[.] ;

3-40    (b) Include a list of any other public or private agency, company,

3-41  official or other custodian of records that is reasonably known to the

3-42  petitioner to have possession of records of the conviction and to whom

3-43  the order to seal records, if issued, will be directed; and

3-44    (c) Include information that, to the best knowledge and belief of the

3-45  petitioner, accurately and completely identifies the records to be sealed.

3-46    3.  Upon receiving a petition pursuant to this section, the court shall

3-47  notify[:] the law enforcement agency that arrested the petitioner for the

3-48  crime and:

4-1    (a) [The] If the person was convicted in a district court or justice’s

4-2  court, the prosecuting attorney for the county; or

4-3    (b) If the person was convicted in a municipal court, the prosecuting

4-4  attorney for the city.

4-5  The prosecuting attorney and any person having relevant evidence may

4-6  testify and present evidence at the hearing on the petition.

4-7    4.  If, after the hearing, the court finds that, in the period prescribed in

4-8  subsection 1, the petitioner has not been [arrested,] charged with any

4-9  offense for which the charges are pending or convicted of any offense,

4-10  exceptfor minor moving or standing traffic violations, the court may order

4-11  sealed all records of the conviction which are in the custody of the court, of

4-12  another court in the State of Nevada or of a public or private agency,

4-13  company or official in the State of Nevada, and may also order all such

4-14  criminal identification records of the petitioner returned to the file of the

4-15  court where the proceeding was commenced from, including, but not

4-16  limited to, the Federal Bureau of Investigation, the California identification

4-17  and investigation bureau, sheriffs’ offices and all other law enforcement

4-18  agencies reasonably known by either the petitioner or the court to have

4-19  possession of such records.

4-20    5.  A person may not petition the court to seal records relating to a

4-21  conviction of a crime against a child or a sexual offense.

4-22    6.  If the court grants a petition for the sealing of records pursuant to

4-23  this section, upon the request of the person whose records are sealed, the

4-24  court may order sealed all records of the civil proceeding in which the

4-25  records were sealed.

4-26    7.  As used in this section:

4-27    (a) “Crime against a child” has the meaning ascribed to it in NRS

4-28  179D.210.

4-29    (b) “Sexual offense” has the meaning ascribed to it in NRS 179D.410.

4-30    Sec. 6.  NRS 179.255 is hereby amended to read as follows:

4-31    179.255  1.  If a person has been arrested for alleged criminal conduct

4-32  and the charges are dismissed or such person is acquitted of the charges,

4-33  the person may petition:

4-34    (a) The court in which the charges were dismissed, [not earlier than 30

4-35  days from] at any time after the date the charges were dismissed; or

4-36    (b) The court in which the acquittal was entered, [not earlier than 30

4-37  days from] at any time after the date of the acquittal,

4-38  for the sealing of all records relating to the arrest and the proceedings

4-39  leading to the dismissal or acquittal.

4-40    2.  A petition filed pursuant to this section must [be] :

4-41    (a) Be accompanied by a current, verified record of the criminal history

4-42  of the petitioner received from the local law enforcement agency of the city

4-43  or county in which the petitioner appeared in court[.] ;

4-44    (b) Include a list of any other public or private agency, company,

4-45  official or other custodian of records that is reasonably known to the

4-46  petitioner to have possession of records of the arrest and of the

4-47  proceedings leading to the dismissal or acquittal and to whom the order

4-48  to seal records, if issued, will be directed; and

5-1    (c) Include information that, to the best knowledge and belief of the

5-2  petitioner, accurately and completely identifies the records to be sealed.

5-3    3.  Upon receiving a petition pursuant to this section, the court shall

5-4  notify[:] the law enforcement agency that arrested the petitioner for the

5-5  crime and:

5-6    (a) [The] If the charges were dismissed or the acquittal was entered in

5-7  a district court or justice’s court, the prosecuting attorney for the county;

5-8  or

5-9    (b) If the charges were dismissed or the acquittal was entered in a

5-10  municipal court, the prosecuting attorney for the city.

5-11  The prosecuting attorney and any person having relevant evidence may

5-12  testify and present evidence at the hearing on the petition.

5-13    4.  If, after the hearing, the court finds that there has been an acquittal

5-14  or that the charges were dismissed and there is no evidence that further

5-15  action will be brought against the person, the court may order sealed all

5-16  records of the arrest and of the proceedings leading to theacquittal or

5-17  dismissal which are in the custody of the court, of another court in the

5-18  State of Nevada or of a public or private company, agency or official in the

5-19  State of Nevada.

5-20    Sec. 7.  NRS 179.285 is hereby amended to read as follows:

5-21    179.285  Except as otherwise provided in NRS 179.301, if the court

5-22  orders a record sealed pursuant to NRS 179.245, 179.255 or 453.3365[,

5-23  all] :

5-24    1.  All proceedings recounted in the record are deemed never to have

5-25  occurred, and the person to whom [it] the order pertains may properly

5-26  answer accordingly to any inquiry concerning the arrest, conviction ,

5-27  dismissal or acquittal and the events and proceedings relating to the arrest,

5-28  conviction , dismissal or acquittal.

5-29    2.  The court shall order the civil rights of the person to whom the

5-30  order pertains to be restored if the person has not been restored to his

5-31  civil rights.

5-32    Sec. 8.  NRS 179.295 is hereby amended to read as follows:

5-33    179.295  1.  The person who is the subject of the records that are

5-34  sealed pursuant to NRS 179.245, 179.255 or 453.3365 may petition the

5-35  court that ordered the records sealed to permit inspection of the records by

5-36  a person named in the petition, and the court may order such inspection.

5-37  Except as otherwise provided in this section and NRS 179.301, the court

5-38  may not order the inspection of the records under any other circumstances.

5-39    2.  If a person has been arrested, the charges have been dismissed and

5-40  the records of the arrest have been sealed, the court may order the

5-41  inspection of the records by a prosecuting attorney upon a showing that as

5-42  a result of newly discovered evidence, the person has been arrested for the

5-43  same or similar offense and that there is sufficient evidence reasonably to

5-44  conclude that he will stand trial for the offense.

5-45    3.  The court may, upon the application of a prosecuting attorney or an

5-46  attorney representing a defendant in a criminal action, order an inspection

5-47  of such records for the purpose of obtaining information relating to persons

5-48  who were involved in the incident recorded.

6-1    4.  This section does not prohibit a court from considering a

6-2  conviction for which records have been sealed pursuant to NRS 179.245,

6-3  179.255 or 453.3365 in determining whether to grant a petition pursuant

6-4  to NRS 179.245, 179.255 or 453.3365 for a conviction of another offense.

6-5    Sec. 9.  NRS 179A.160 is hereby amended to read as follows:

6-6    179A.160  [At any time after a date 5 years after the arrest of a person,

6-7  or after 5 years after the date of issuance of a citation or warrant, for an

6-8  offense for which the person was acquitted or which ended in a disposition

6-9  favorable to the person,]

6-10    1.  If a person has been arrested or issued a citation, or has been the

6-11  subject of a warrant for alleged criminal conduct and the person is

6-12  acquitted of the charge or the disposition of the charge is favorable to the

6-13  person, at any time after the charge is dismissed, acquittal is entered or

6-14  disposition of the charge in favor of the person is final, the person who is

6-15  the subject of a record of criminal history relating to the arrest, citation or

6-16  warrant may apply in writing to the central repository and the agency

6-17  which maintains the record to have it removed from the files which are

6-18  available and generally searched for the purpose of responding to inquiries

6-19  concerning the criminal history of a person.

6-20    2.  The central repository and the agency shall remove the record

6-21  unless:

6-22    [1.] (a) The defendant is a fugitive[.

6-23    2.] ;

6-24    (b) The case is under active prosecution according to a current

6-25  certificate of a prosecuting attorney[.

6-26    3.] ;

6-27    (c) The disposition of the case was a deferred prosecution, plea bargain

6-28  or other similar disposition[.

6-29    4.] ;

6-30    (d) The person who is the subject of the record has a prior conviction

6-31  for a felony or gross misdemeanor in any jurisdiction in the United States[.

6-32    5.] ; or

6-33    (e) The person who is the subject of the record has been arrested for or

6-34  charged with another crime, other than a minor traffic violation, [during the

6-35  5 years] since the arrest, citation or warrant which he seeks to have

6-36  removed from the record.

6-37  3. This section does not restrict the authority of a court to order the

6-38  deletion or modification of a record in a particular cause or concerning

6-39  a particular person or event.

6-40    Sec. 10.  NRS 209.511 is hereby amended to read as follows:

6-41    209.511  1.  When an offender is released from prison by expiration of

6-42  his term of sentence, by pardon or by parole, the director:

6-43    (a) May furnish him with a sum of money not to exceed $100, the

6-44  amount to be based upon the offender’s economic need as determined by

6-45  the director ; [.]

6-46    (b) Shall give him notice of the provisions of chapter 179C of NRS and

6-47  NRS 202.360 ; [.]

6-48    (c) Shall require him to sign an acknowledgment of the notice required

6-49  in paragraph (b) ; [.]

7-1    (d) Shall give him notice of the provisions of NRS 179.245 and the

7-2  provisions of NRS 213.090, 213.155 or 213.157, as applicable;

7-3    (e) May provide him with clothing suitable for reentering society[.

7-4    (e)] ;

7-5    (f) May provide him with the cost of transportation to his place of

7-6  residence anywhere within the continental United States, or to the place of

7-7  his conviction[.

7-8    (f)] ; and

7-9    (g) Shall require him to submit to at least one test for exposure to the

7-10  human immunodeficiency virus.

7-11    2.  The costs authorized in paragraphs (a), [(d), (e) and] (e), (f) and (g)

7-12  of subsection 1 must be paid out of the appropriate account within the state

7-13  general fund for the use of the department as other claims against the state

7-14  are paid to the extent that the costs have not been paid in accordance with

7-15  subsection 5 of NRS 209.221 and NRS 209.246.

7-16    Sec. 11.  NRS 213.090 is hereby amended to read as follows:

7-17    213.090  1.  When a pardon is granted for any offense committed, the

7-18  pardon may or may not include restoration of civil rights. If the pardon

7-19  includes restoration of civil rights, it shall be so stated in the instrument or

7-20  certificate of pardon; and when granted upon conditions, limitations or

7-21  restrictions, they shall be fully set forth in the instrument.

7-22    2.  In any case where a convicted person has received a pardon without

7-23  immediate restoration of his civil rights , [and has not been convicted of

7-24  any offense greater than a traffic violation within 5 years after such

7-25  pardon,] he may apply to the state board of pardons commissioners for

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

7-27  resulting from the offense or crime of which he was convicted. If, after

7-28  investigation, the board determines that the applicant [meets the

7-29  requirements of this subsection,] has received a pardon, it shall restore

7-30  him to his civil rights and release him from all penalties and disabilities

7-31  resulting from the offense or crime of which he was convicted. If the board

7-32  refuses to grant such restoration and release, the applicant may, after notice

7-33  to the board, petition the district court in which the conviction was

7-34  obtained for an order directing the board to grant such restoration and

7-35  release.

7-36    Sec. 12.  NRS 213.155 is hereby amended to read as follows:

7-37    213.155  1.  The board may restore a paroled prisoner to his civil

7-38  rights, conditioned upon the prisoner receiving an honorable discharge

7-39  from parole pursuant to NRS 213.154. Such restoration must take effect at

7-40  the expiration of the parole of the prisoner.

7-41    2.  In any case where a convicted person has completed his parole

7-42  without immediate restoration of his civil rights [,] and has been issued an

7-43  honorable discharge from parole pursuant to NRS 213.154 , [and has not

7-44  been convicted of any offense greater than a traffic violation within 5 years

7-45  after completion of parole,] he may apply to the state board of parole

7-46  commissioners for restoration of his civil rights and release from penalties

7-47  and disabilities which resulted from the offense or crime of which he was

7-48  convicted. [The application must be accompanied by a current, certified

7-49  record of the applicant’s criminal history received from the central

8-1  repository for Nevada records of criminal history.] If, after investigation,

8-2  the board determines that the applicant [meets the requirements of this

8-3  subsection,] has received an honorable discharge from parole, it shall

8-4  restore him to his civil rights and release him from all penalties and

8-5  disabilities resulting from the offense or crime of which he was convicted.

8-6  If the board refuses to grant such restoration and release, the applicant may,

8-7  after notice to the board, petition the district court in which the conviction

8-8  was obtained for an order directing the board to grant such restoration and

8-9  release.

8-10    3.  The board may adopt regulations necessary or convenient for the

8-11  purposes of this section.

8-12    Sec. 13.  NRS 213.157 is hereby amended to read as follows:

8-13    213.157  In any case where a person convicted of a felony in the State

8-14  of Nevada has served his sentence and been released from prison, [and has

8-15  not been convicted of any offense greater than a traffic violation within 5

8-16  years of his release,] he may apply to the division requesting restoration of

8-17  his civil rights and release from all penalties and disabilities which resulted

8-18  from the offense or crime of which he was convicted. [The application

8-19  must be accompanied by a current, certified record of the applicant’s

8-20  criminal history received from the central repository for Nevada records of

8-21  criminal history.] If, after investigation, the division determines that the

8-22  applicant [meets the requirements of this section,] has served his sentence

8-23  and been released from prison, it shall petition the district court in which

8-24  the conviction was obtained for an order granting such restoration and

8-25  release. If the division refuses to submit such petition, the applicant may,

8-26  after giving notice to the division, petition such court directly for the

8-27  restoration of his civil rights and release from all penalties and disabilities

8-28  which resulted from the offense or crime of which he was convicted.

8-29    Sec. 14.  The amendatory provisions of this act apply to:

8-30    1.  A petition for an order to seal records pursuant to NRS 179.245 or

8-31  179.255 that is filed on or after the effective date of this act.

8-32    2.  An application for restoration of civil rights pursuant to NRS

8-33  176A.860, 213.090, 213.155 or 213.157 that is filed on or after the

8-34  effective date of this act.

8-35    Sec. 15.  This act becomes effective upon passage and approval.

 

8-36  H