(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

 

 

2-1    (c) Has demonstrated his fitness for honorable discharge but because of

2-2  economic hardship, verified by a parole and probation officer, has been

2-3  unable to make restitution as ordered by the court,

2-4  may be granted an honorable discharge from probation by order of the

2-5  court.

2-6    2.  Any amount of restitution remaining unpaid constitutes a civil

2-7  liability arising upon the date of discharge.

2-8    3.  A person honorably discharged from probation is free from the

2-9  terms and conditions of his probation and may apply to the [court,]

2-10  division, in person or by attorney, pursuant to NRS 176A.860, for the

2-11  restoration of his civil rights[.] and, to the court, pursuant to NRS

2-12  179.245, for the sealing of records relating to his conviction. He must be

2-13  informed of [this privilege] these privileges in his probation papers.

2-14    4.  A person honorably discharged from probation who has had his civil

2-15  rights restored by the court:

2-16    (a) Is exempt from the requirements of chapter 179C of NRS, but is not

2-17  exempt from the requirements of chapter 179D of NRS.

2-18    (b) May vote, hold office or serve as a juror.

2-19    (c) Shall disclose the conviction to a gaming establishment and the

2-20  state, its agencies, departments, boards, commissions and political

2-21  subdivisions, if required in an application for employment, license or other

2-22  permit. As used in this paragraph, “establishment” has the meaning

2-23  ascribed to it in NRS 463.0148.

2-24    (d) Except as otherwise provided in paragraph (c), need not disclose the

2-25  conviction to an employer or prospective employer.

2-26    5.  The prior conviction of a person whose civil rights have been

2-27  restored or who has been honorably discharged from probation may be

2-28  used for purposes of impeachment. In any subsequent prosecution of the

2-29  person who has had his civil rights restored or who has been honorably

2-30  discharged from probation, the prior conviction may be pleaded and proved

2-31  if otherwise admissible.

2-32  Sec. 3.  NRS 176A.860 is hereby amended to read as follows:

2-33  176A.860  1.  A convicted person who is granted an honorable

2-34  discharge from probation, who has not previously been restored to his civil

2-35  rights, [and who is not convicted of any offense greater than a traffic

2-36  violation within 6 months after the discharge,] may apply to the division to

2-37  request a restoration of his civil rights. [The application must be

2-38  accompanied by a current, certified record of the applicant’s criminal

2-39  history received from the central repository for Nevada records of criminal

2-40  history. If the division determines after an investigation that the applicant

2-41  meets the requirements of this section, it shall petition]

2-42  2.  Upon receiving an application pursuant to subsection 1, the

2-43  division shall determine whether the applicant has been granted an

2-44  honorable discharge from probation. If the division determines that the

2-45  applicant has been granted an honorable discharge, the division shall

2-46  forward the application to the court in which the applicant was convicted .

2-47  [for an order granting the restoration. If the division refuses to submit such

2-48  a petition, the applicant may, after notice to the division, directly petition

2-49  the court for restoration of his civil rights.]

3-1    3.  Upon receiving an application pursuant to subsection 2, the court

3-2  shall, as soon as reasonably practicable, restore the civil rights of the

3-3  applicant.

3-4    4.  An applicant must not be required to pay a fee to have his civil

3-5  rights restored pursuant to this section.

3-6    Sec. 4.  Chapter 178 of NRS is hereby amended by adding thereto a

3-7  new section to read as follows:

3-8    Upon the entry of an order dismissing a criminal action or proceeding,

3-9  the court shall provide the defendant with a written notice of the

3-10  provisions of NRS 179.255 which concern the sealing of records of the

3-11  proceedings leading to the dismissal.

3-12    Sec. 5.  NRS 179.245 is hereby amended to read as follows:

3-13    179.245  1.  Except as otherwise provided in subsection 5 and NRS

3-14  453.3365, a person who has been convicted of:

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

3-16  his conviction or, if he is imprisoned, or on parole or probation, from the

3-17  date of his release from actual custody [;] , or discharge from parole or

3-18  probation, whichever occurs later;

3-19    (b) A category C or D felony may, after 12 years from the date of his

3-20  conviction or, if he is imprisoned, or on parole or probation, from the

3-21  date of his release from actual custody, or discharge from parole or

3-22  probation, whichever occurs later;

3-23    (c) A category E felony may, after 10 years from the date of his

3-24  conviction or, if he is imprisoned, or on parole or probation, from the

3-25  date of his release from actual custody, or discharge from parole or

3-26  probation, whichever occurs later;

3-27    (d) Any gross misdemeanor may, after [10] 7 years from the date of his

3-28  conviction or , if he is incarcerated or on probation, from the date of his

3-29  release from custody[;

3-30    (c)] or discharge from probation, whichever occurs later;

3-31    (e) A violation of NRS 484.379 other than a felony, or a battery which

3-32  constitutes domestic violence pursuant to NRS 33.018 other than a felony

3-33  may, after 7 years from the date of his conviction or , if he is incarcerated

3-34  or has had his sentence suspended, from the date of his release from

3-35  custody [; or

3-36    (d)] or from the date when he is no longer under a suspended

3-37  sentence, whichever occurs later; or

3-38    (f) Any other misdemeanor may, after [5] 3 years from the date of his

3-39  conviction or , if he is incarcerated or has had his sentence suspended,

3-40  from the date of his release from custody[,] or from the date when he is

3-41  no longer under a suspended sentence, whichever occurs later,

3-42  petition the court in which the conviction was obtained for the sealing of

3-43  all records relating to the conviction.

3-44    2.  A petition filed pursuant to subsection 1 must [be] :

3-45    (a) Be accompanied by current, verified records of the petitioner’s

3-46  criminal history received from:

3-47    [(a)] (1) The central repository for Nevada records of criminal

3-48  history; and

4-1    [(b)] (2) The local law enforcement agency of the city or county in

4-2  which the conviction was entered[.] ;

4-3    (b) Include a list of any other public or private agency, company,

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

4-5  petitioner to have possession of records of the conviction and to whom

4-6  the order to seal records, if issued, will be directed; and

4-7    (c) Include information that, to the best knowledge and belief of the

4-8  petitioner, accurately and completely identifies the records to be sealed.

4-9    3.  Upon receiving a petition pursuant to this section, the court shall

4-10  notify[:] the law enforcement agency that arrested the petitioner for the

4-11  crime and:

4-12    (a) [The] If the person was convicted in a district court or justice’s

4-13  court, the prosecuting attorney for the county; or

4-14    (b) If the person was convicted in a municipal court, the prosecuting

4-15  attorney for the city.

4-16  The prosecuting attorney and any person having relevant evidence may

4-17  testify and present evidence at the hearing on the petition.

4-18    4.  If, after the hearing, the court finds that, in the period prescribed in

4-19  subsection 1, the petitioner has not been [arrested,] charged with any

4-20  offense for which the charges are pending or convicted of any offense,

4-21  exceptfor minor moving or standing traffic violations, the court may order

4-22  sealed all records of the conviction which are in the custody of the court, of

4-23  another court in the State of Nevada or of a public or private agency,

4-24  company or official in the State of Nevada, and may also order all such

4-25  criminal identification records of the petitioner returned to the file of the

4-26  court where the proceeding was commenced from, including, but not

4-27  limited to, the Federal Bureau of Investigation, the California identification

4-28  and investigation bureau, sheriffs’ offices and all other law enforcement

4-29  agencies reasonably known by either the petitioner or the court to have

4-30  possession of such records.

4-31    5.  A person may not petition the court to seal records relating to a

4-32  conviction of a crime against a child or a sexual offense.

4-33    6.  If the court grants a petition for the sealing of records pursuant to

4-34  this section, upon the request of the person whose records are sealed, the

4-35  court may order sealed all records of the civil proceeding in which the

4-36  records were sealed.

4-37    7.  As used in this section:

4-38    (a) “Crime against a child” has the meaning ascribed to it in NRS

4-39  179D.210.

4-40    (b) “Sexual offense” has the meaning ascribed to it in NRS 179D.410.

4-41    Sec. 6.  NRS 179.255 is hereby amended to read as follows:

4-42    179.255  1.  If a person has been arrested for alleged criminal conduct

4-43  and the charges are dismissed or such person is acquitted of the charges,

4-44  the person may petition:

4-45    (a) The court in which the charges were dismissed, [not earlier than 30

4-46  days from] at any time after the date the charges were dismissed; or

4-47    (b) The court in which the acquittal was entered, [not earlier than 30

4-48  days from] at any time after the date of the acquittal,

5-1  for the sealing of all records relating to the arrest and the proceedings

5-2  leading to the dismissal or acquittal.

5-3    2.  A petition filed pursuant to this section must [be] :

5-4    (a) Be accompanied by a current, verified record of the criminal history

5-5  of the petitioner received from the local law enforcement agency of the city

5-6  or county in which the petitioner appeared in court[.] ;

5-7    (b) Include a list of any other public or private agency, company,

5-8  official or other custodian of records that is reasonably known to the

5-9  petitioner to have possession of records of the arrest and of the

5-10  proceedings leading to the dismissal or acquittal and to whom the order

5-11  to seal records, if issued, will be directed; and

5-12    (c) Include information that, to the best knowledge and belief of the

5-13  petitioner, accurately and completely identifies the records to be sealed.

5-14    3.  Upon receiving a petition pursuant to this section, the court shall

5-15  notify[:] the law enforcement agency that arrested the petitioner for the

5-16  crime and:

5-17    (a) [The] If the charges were dismissed or the acquittal was entered in

5-18  a district court or justice’s court, the prosecuting attorney for the

5-19  county; or

5-20    (b) If the charges were dismissed or the acquittal was entered in a

5-21  municipal court, the prosecuting attorney for the city.

5-22  The prosecuting attorney and any person having relevant evidence may

5-23  testify and present evidence at the hearing on the petition.

5-24    4.  If, after the hearing, the court finds that there has been an acquittal

5-25  or that the charges were dismissed and there is no evidence that further

5-26  action will be brought against the person, the court may order sealed all

5-27  records of the arrest and of the proceedings leading to theacquittal or

5-28  dismissal which are in the custody of the court, of another court in the

5-29  State of Nevada or of a public or private company, agency or official in the

5-30  State of Nevada.

5-31    Sec. 7.  NRS 179.285 is hereby amended to read as follows:

5-32    179.285  Except as otherwise provided in NRS 179.301, if the court

5-33  orders a record sealed pursuant to NRS 179.245, 179.255 or 453.3365[,

5-34  all] :

5-35    1.  All proceedings recounted in the record are deemed never to have

5-36  occurred, and the person to whom [it] the order pertains may properly

5-37  answer accordingly to any inquiry concerning the arrest, conviction ,

5-38  dismissal or acquittal and the events and proceedings relating to the arrest,

5-39  conviction , dismissal or acquittal.

5-40    2.  The court shall order the civil rights of the person to whom the

5-41  order pertains to be restored if the person has not been restored to his

5-42  civil rights.

5-43    Sec. 8.  NRS 179.295 is hereby amended to read as follows:

5-44    179.295  1.  The person who is the subject of the records that are

5-45  sealed pursuant to NRS 179.245, 179.255 or 453.3365 may petition the

5-46  court that ordered the records sealed to permit inspection of the records by

5-47  a person named in the petition, and the court may order such inspection.

5-48  Except as otherwise provided in this section and NRS 179.301, the court

5-49  may not order the inspection of the records under any other circumstances.

6-1    2.  If a person has been arrested, the charges have been dismissed and

6-2  the records of the arrest have been sealed, the court may order the

6-3  inspection of the records by a prosecuting attorney upon a showing that as

6-4  a result of newly discovered evidence, the person has been arrested for the

6-5  same or similar offense and that there is sufficient evidence reasonably to

6-6  conclude that he will stand trial for the offense.

6-7    3.  The court may, upon the application of a prosecuting attorney or an

6-8  attorney representing a defendant in a criminal action, order an inspection

6-9  of such records for the purpose of obtaining information relating to persons

6-10  who were involved in the incident recorded.

6-11    4.  This section does not prohibit a court from considering a

6-12  conviction for which records have been sealed pursuant to NRS 179.245,

6-13  179.255 or 453.3365 in determining whether to grant a petition pursuant

6-14  to NRS 179.245, 179.255 or 453.3365 for a conviction of another offense.

6-15    Sec. 9.  NRS 179A.160 is hereby amended to read as follows:

6-16    179A.160  [At any time after a date 5 years after the arrest of a person,

6-17  or after 5 years after the date of issuance of a citation or warrant, for an

6-18  offense for which the person was acquitted or which ended in a disposition

6-19  favorable to the person,]

6-20    1.  If a person has been arrested or issued a citation, or has been the

6-21  subject of a warrant for alleged criminal conduct and the person is

6-22  acquitted of the charge or the disposition of the charge is favorable to the

6-23  person, at any time after the charge is dismissed, acquittal is entered or

6-24  disposition of the charge in favor of the person is final, the person who is

6-25  the subject of a record of criminal history relating to the arrest, citation or

6-26  warrant may apply in writing to the central repository and the agency

6-27  which maintains the record to have it removed from the files which are

6-28  available and generally searched for the purpose of responding to inquiries

6-29  concerning the criminal history of a person.

6-30    2.  The central repository and the agency shall remove the record

6-31  unless:

6-32    [1.] (a) The defendant is a fugitive[.

6-33    2.] ;

6-34    (b) The case is under active prosecution according to a current

6-35  certificate of a prosecuting attorney[.

6-36    3.] ;

6-37    (c) The disposition of the case was a deferred prosecution, plea bargain

6-38  or other similar disposition[.

6-39    4.] ;

6-40    (d) The person who is the subject of the record has a prior conviction

6-41  for a felony or gross misdemeanor in any jurisdiction in the United States[.

6-42    5.] ; or

6-43    (e) The person who is the subject of the record has been arrested for or

6-44  charged with another crime, other than a minor traffic violation, [during the

6-45  5 years] since the arrest, citation or warrant which he seeks to have

6-46  removed from the record.

6-47  3. This section does not restrict the authority of a court to order the

6-48  deletion or modification of a record in a particular cause or concerning

6-49  a particular person or event.

7-1    Sec. 10.  NRS 209.511 is hereby amended to read as follows:

7-2    209.511  1.  When an offender is released from prison by expiration of

7-3  his term of sentence, by pardon or by parole, the director:

7-4    (a) May furnish him with a sum of money not to exceed $100, the

7-5  amount to be based upon the offender’s economic need as determined by

7-6  the director ; [.]

7-7    (b) Shall give him notice of the provisions of chapter 179C of NRS and

7-8  NRS 202.360 ; [.]

7-9    (c) Shall require him to sign an acknowledgment of the notice required

7-10  in paragraph (b) ; [.]

7-11    (d) Shall give him notice of the provisions of NRS 179.245 and the

7-12  provisions of NRS 213.090, 213.155 or 213.157, as applicable;

7-13    (e) May provide him with clothing suitable for reentering society[.

7-14    (e)] ;

7-15    (f) May provide him with the cost of transportation to his place of

7-16  residence anywhere within the continental United States, or to the place of

7-17  his conviction[.

7-18    (f)] ; and

7-19    (g) Shall require him to submit to at least one test for exposure to the

7-20  human immunodeficiency virus.

7-21    2.  The costs authorized in paragraphs (a), [(d), (e) and] (e), (f) and (g)

7-22  of subsection 1 must be paid out of the appropriate account within the state

7-23  general fund for the use of the department as other claims against the state

7-24  are paid to the extent that the costs have not been paid in accordance with

7-25  subsection 5 of NRS 209.221 and NRS 209.246.

7-26    Sec. 11.  NRS 213.090 is hereby amended to read as follows:

7-27  213.090  1.  When a pardon is granted for any offense committed, the

7-28  pardon may or may not include restoration of civil rights. If the pardon

7-29  includes restoration of civil rights, it shall be so stated in the instrument or

7-30  certificate of pardon; and when granted upon conditions, limitations or

7-31  restrictions, they shall be fully set forth in the instrument.

7-32  2.  In any case where a convicted person has received a pardon without

7-33  immediate restoration of his civil rights , [and has not been convicted of

7-34  any offense greater than a traffic violation within 5 years after such

7-35  pardon,] he may apply to the state board of pardons commissioners for

7-36  restoration of his civil rights and release from penalties and disabilities

7-37  resulting from the offense or crime of which he was convicted. [If, after

7-38  investigation,]

7-39  3.  Upon receiving an application pursuant to subsection 2, the board

7-40  [determines that] shall determine whether the applicant [meets the

7-41  requirements of this subsection, it] has received a pardon. If the board

7-42  determines that the applicant has received a pardon, the board shall , as

7-43  soon as reasonably practicable, restore him to his civil rights and release

7-44  him from all penalties and disabilities resulting from the offense or crime

7-45  of which he was convicted. [If the board refuses to grant such restoration

7-46  and release, the applicant may, after notice to the board, petition the district

7-47  court in which the conviction was obtained for an order directing the board

7-48  to grant such restoration and release.]

8-1    4.  An applicant must not be required to pay a fee to have his civil

8-2  rights restored or to be released from penalties and disabilities pursuant

8-3  to this section.

8-4    Sec. 12.  NRS 213.155 is hereby amended to read as follows:

8-5    213.155  1.  The board may restore a paroled prisoner to his civil

8-6  rights, conditioned upon the prisoner receiving an honorable discharge

8-7  from parole pursuant to NRS 213.154. Such restoration must take effect at

8-8  the expiration of the parole of the prisoner.

8-9    2.  In any case where a convicted person has completed his parole

8-10  without immediate restoration of his civil rights [,] and has been issued an

8-11  honorable discharge from parole pursuant to NRS 213.154 , [and has not

8-12  been convicted of any offense greater than a traffic violation within 5 years

8-13  after completion of parole,] he may apply to the [state board of parole

8-14  commissioners for] division to request a restoration of his civil rights and

8-15  release from penalties and disabilities which resulted from the offense or

8-16  crime of which he was convicted. [The application must be accompanied

8-17  by a current, certified record of the applicant’s criminal history received

8-18  from the central repository for Nevada records of criminal history. If, after

8-19  investigation, the board determines that the applicant meets the

8-20  requirements of this subsection, it]

8-21  3.  Upon receiving an application pursuant to subsection 2, the

8-22  division shall determine whether the applicant has received an honorable

8-23  discharge from parole. If the division determines that the applicant has

8-24  received an honorable discharge, the division shall forward the

8-25  application to the board.

8-26  4.  Upon receiving an application pursuant to subsection 3, the board

8-27  shall , as soon as reasonably practicable, restore [him] the applicant to his

8-28  civil rights and release him from all penalties and disabilities resulting

8-29  from the offense or crime of which he was convicted. [If the board refuses

8-30  to grant such restoration and release, the applicant may, after notice to the

8-31  board, petition the district court in which the conviction was obtained for

8-32  an order directing the board to grant such restoration and release.]

8-33  5.  An applicant must not be required to pay a fee to have his civil

8-34  rights restored or to be released from penalties and disabilities pursuant

8-35  to this section.

8-36    [3.] 6.  The board may adopt regulations necessary or convenient for

8-37  the purposes of this section.

8-38    Sec. 13.  NRS 213.157 is hereby amended to read as follows:

8-39  213.157  1.  In any case where a person convicted of a felony in the

8-40  State of Nevada has served his sentence and been released from prison,

8-41  [and has not been convicted of any offense greater than a traffic violation

8-42  within 5 years of his release,] he may apply to the division requesting

8-43  restoration of his civil rights and release from all penalties and disabilities

8-44  which resulted from the offense or crime of which he was convicted. [The

8-45  application must be accompanied by a current, certified record of the

8-46  applicant’s criminal history received from the central repository for

8-47  Nevada records of criminal history. If, after investigation, the division

8-48  determines that the applicant meets the requirements of this section, it shall

8-49  petition]

9-1    2.  Upon receiving an application pursuant to subsection 1, the

9-2  division shall determine whether the applicant has served his sentence

9-3  and been released from prison. If the division determines that the

9-4  applicant has served his sentence and been released from prison, the

9-5  division shall forward the application to the district court in which the

9-6  conviction was obtained . [for an order granting such restoration and

9-7  release. If the division refuses to submit such petition, the applicant may,

9-8  after giving notice to the division, petition such court directly for the

9-9  restoration of his]

9-10  3.  Upon receiving an application pursuant to subsection 2, the court

9-11  shall, as soon as reasonably practicable, restore the civil rights of the

9-12  applicant and release him from all penalties and disabilities which resulted

9-13  from the offense or crime of which he was convicted.

9-14  4.  An applicant must not be required to pay a fee to have his civil

9-15  rights restored or to be released from penalties and disabilities pursuant

9-16  to this section.

9-17    Sec. 14.  The amendatory provisions of this act apply to:

9-18    1.  A petition for an order to seal records pursuant to NRS 179.245 or

9-19  179.255 that is filed on or after the effective date of this act.

9-20    2.  An application for restoration of civil rights pursuant to NRS

9-21  176A.860, 213.090, 213.155 or 213.157 that is filed on or after the

9-22  effective date of this act.

9-23    Sec. 15.  This act becomes effective upon passage and approval.

 

9-24  H