(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,]

2-7  division, in person or by attorney, pursuant to NRS 176A.860, for the

2-8  restoration of his civil rights[.] and, to the court, pursuant to NRS

2-9  179.245, for the sealing of records relating to his conviction. He must be

2-10  informed of [this privilege] these 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]

2-31  1.  If a person is granted an honorable discharge from probation, [who

2-32  has] not sooner than 6 months after his honorable discharge, the person

2-33  may apply to the division to request a restoration of his civil rights if the

2-34  person:

2-35  (a) Has not previously been restored to his civil rights[, and who is] ;

2-36  and

2-37  (b) Has not been convicted of any offense greater than a traffic

2-38  violation[within 6 months after the discharge, may apply] after his

2-39  honorable discharge.

2-40  2.  If a person applies to the division to request a restoration of his

2-41  civil rights[. The application must be accompanied by] , the person must

2-42  submit with his application a current, certified record of [the applicant’s]

2-43  his criminal history received from the central repository for Nevada

2-44  records of criminal history. If the division determines after an investigation

2-45  that the [applicant] person meets the requirements of this section, [it] the

2-46  division shall petition the court in which the [applicant] person was

2-47  convicted for an order granting the restoration[.] of his civil rights. If the

2-48  division refuses to submit such a petition, the [applicant] person may, after

3-1  notice to the division, directly petition the court for an order granting the

3-2  restoration of his civil rights.

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

3-4  new section to read as follows:

3-5    Upon the entry of an order dismissing a criminal action or proceeding,

3-6  the court shall provide the defendant with a written notice of the

3-7  provisions of NRS 179.255 which concern the sealing of records of the

3-8  proceedings leading to the dismissal.

3-9    Sec. 5.  NRS 179.245 is hereby amended to read as follows:

3-10  179.245  1.  Except as otherwise provided in subsection 5 and NRS

3-11  453.3365, a person [who has been convicted of:] may petition the court in

3-12  which he was convicted for the sealing of all records relating to a

3-13  conviction of:

3-14  (a) [Any felony may,] A category A or B felony after 15 years from the

3-15  date of his [conviction or, if he is imprisoned, from the date of his] release

3-16  from actual custody [;] or discharge from parole or probation, whichever

3-17  occurs later;

3-18  (b) A category C or D felony after 12 years from the date of his release

3-19  from actual custody or discharge from parole or probation, whichever

3-20  occurs later;

3-21  (c) A category E felony after 10 years from the date of his release

3-22  from actual custody or discharge from parole or probation, whichever

3-23  occurs later;

3-24  (d) Any gross misdemeanor [may, after 10] after 7 years from the date

3-25  of his [conviction or] release from actual custody[;

3-26  (c)] or discharge from probation, whichever occurs later;

3-27  (e) A violation of NRS 484.379 other than a felony, or a battery which

3-28  constitutes domestic violence pursuant to NRS 33.018 other than a felony ,

3-29  [may,] after 7 years from the date of his [conviction or,] release from

3-30  actual custody [; or

3-31  (d)] or from the date when he is no longer under a suspended

3-32  sentence, whichever occurs later; or

3-33  (f) Any other misdemeanor [may, after 5] after 3 years from the date of

3-34  his [conviction or] release from actual custody[,

3-35  petition the court in which the conviction was obtained for the sealing of

3-36  all records relating to the conviction.] or from the date when he is no

3-37  longer under a suspended sentence, whichever occurs later.

3-38    2.  A petition filed pursuant to subsection 1 must [be] :

3-39    (a) Be accompanied by current, verified records of the petitioner’s

3-40  criminal history received from:

3-41    [(a)] (1) The central repository for Nevada records of criminal

3-42  history; and

3-43    [(b)] (2) The local law enforcement agency of the city or county in

3-44  which the conviction was entered[.] ;

3-45    (b) Include a list of any other public or private agency, company,

3-46  official or other custodian of records that is reasonably known to the

3-47  petitioner to have possession of records of the conviction and to whom

3-48  the order to seal records, if issued, will be directed; and

4-1    (c) Include information that, to the best knowledge and belief of the

4-2  petitioner, accurately and completely identifies the records to be sealed.

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

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

4-5  crime and:

4-6    (a) [The] If the person was convicted in a district court or justice’s

4-7  court, the prosecuting attorney for the county; or

4-8    (b) If the person was convicted in a municipal court, the prosecuting

4-9  attorney for the city.

4-10  The prosecuting attorney and any person having relevant evidence may

4-11  testify and present evidence at the hearing on the petition.

4-12    4.  If, after the hearing, the court finds that, in the period prescribed in

4-13  subsection 1, the petitioner has not been [arrested,] charged with any

4-14  offense for which the charges are pending or convicted of any offense,

4-15  exceptfor minor moving or standing traffic violations, the court may order

4-16  sealed all records of the conviction which are in the custody of the court, of

4-17  another court in the State of Nevada or of a public or private agency,

4-18  company or official in the State of Nevada, and may also order all such

4-19  criminal identification records of the petitioner returned to the file of the

4-20  court where the proceeding was commenced from, including, but not

4-21  limited to, the Federal Bureau of Investigation, the California identification

4-22  and investigation bureau, sheriffs’ offices and all other law enforcement

4-23  agencies reasonably known by either the petitioner or the court to have

4-24  possession of such records.

4-25    5.  A person may not petition the court to seal records relating to a

4-26  conviction of a crime against a child or a sexual offense.

4-27    6.  If the court grants a petition for the sealing of records pursuant to

4-28  this section, upon the request of the person whose records are sealed, the

4-29  court may order sealed all records of the civil proceeding in which the

4-30  records were sealed.

4-31    7.  As used in this section:

4-32    (a) “Crime against a child” has the meaning ascribed to it in NRS

4-33  179D.210.

4-34    (b) “Sexual offense” has the meaning ascribed to it in NRS 179D.410.

4-35    Sec. 6.  NRS 179.255 is hereby amended to read as follows:

4-36    179.255  1.  If a person has been arrested for alleged criminal conduct

4-37  and the charges are dismissed or such person is acquitted of the charges,

4-38  the person may petition:

4-39    (a) The court in which the charges were dismissed, [not earlier than 30

4-40  days from] at any time after the date the charges were dismissed; or

4-41    (b) The court in which the acquittal was entered, [not earlier than 30

4-42  days from] at any time after the date of the acquittal,

4-43  for the sealing of all records relating to the arrest and the proceedings

4-44  leading to the dismissal or acquittal.

4-45    2.  A petition filed pursuant to this section must [be] :

4-46    (a) Be accompanied by a current, verified record of the criminal history

4-47  of the petitioner received from the local law enforcement agency of the city

4-48  or county in which the petitioner appeared in court[.] ;

5-1    (b) Include a list of any other public or private agency, company,

5-2  official or other custodian of records that is reasonably known to the

5-3  petitioner to have possession of records of the arrest and of the

5-4  proceedings leading to the dismissal or acquittal and to whom the order

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

5-6    (c) Include information that, to the best knowledge and belief of the

5-7  petitioner, accurately and completely identifies the records to be sealed.

5-8    3.  Upon receiving a petition pursuant to this section, the court shall

5-9  notify[:] the law enforcement agency that arrested the petitioner for the

5-10  crime and:

5-11    (a) [The] If the charges were dismissed or the acquittal was entered in

5-12  a district court or justice’s court, the prosecuting attorney for the

5-13  county; or

5-14    (b) If the charges were dismissed or the acquittal was entered in a

5-15  municipal court, the prosecuting attorney for the city.

5-16  The prosecuting attorney and any person having relevant evidence may

5-17  testify and present evidence at the hearing on the petition.

5-18    4.  If, after the hearing, the court finds that there has been an acquittal

5-19  or that the charges were dismissed and there is no evidence that further

5-20  action will be brought against the person, the court may order sealed all

5-21  records of the arrest and of the proceedings leading to theacquittal or

5-22  dismissal which are in the custody of the court, of another court in the

5-23  State of Nevada or of a public or private company, agency or official in the

5-24  State of Nevada.

5-25    Sec. 7.  NRS 179.285 is hereby amended to read as follows:

5-26    179.285  Except as otherwise provided in NRS 179.301, if the court

5-27  orders a record sealed pursuant to NRS 179.245, 179.255 or 453.3365[,

5-28  all] :

5-29    1.  All proceedings recounted in the record are deemed never to have

5-30  occurred, and the person to whom [it] the order pertains may properly

5-31  answer accordingly to any inquiry concerning the arrest, conviction ,

5-32  dismissal or acquittal and the events and proceedings relating to the arrest,

5-33  conviction , dismissal or acquittal.

5-34    2.  The court shall order the civil rights of the person to whom the

5-35  order pertains to be restored if the person has not been restored to his

5-36  civil rights.

5-37    Sec. 8.  NRS 179.295 is hereby amended to read as follows:

5-38    179.295  1.  The person who is the subject of the records that are

5-39  sealed pursuant to NRS 179.245, 179.255 or 453.3365 may petition the

5-40  court that ordered the records sealed to permit inspection of the records by

5-41  a person named in the petition, and the court may order such inspection.

5-42  Except as otherwise provided in this section and NRS 179.301, the court

5-43  may not order the inspection of the records under any other circumstances.

5-44    2.  If a person has been arrested, the charges have been dismissed and

5-45  the records of the arrest have been sealed, the court may order the

5-46  inspection of the records by a prosecuting attorney upon a showing that as

5-47  a result of newly discovered evidence, the person has been arrested for the

5-48  same or similar offense and that there is sufficient evidence reasonably to

5-49  conclude that he will stand trial for the offense.

6-1    3.  The court may, upon the application of a prosecuting attorney or an

6-2  attorney representing a defendant in a criminal action, order an inspection

6-3  of such records for the purpose of obtaining information relating to persons

6-4  who were involved in the incident recorded.

6-5    4.  This section does not prohibit a court from considering a

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

6-7  179.255 or 453.3365 in determining whether to grant a petition pursuant

6-8  to NRS 179.245, 179.255 or 453.3365 for a conviction of another offense.

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

6-10    179A.160  [At any time after a date 5 years after the arrest of a person,

6-11  or after 5 years after the date of issuance of a citation or warrant, for an

6-12  offense for which the person was acquitted or which ended in a disposition

6-13  favorable to the person,]

6-14    1.  If a person has been arrested or issued a citation, or has been the

6-15  subject of a warrant for alleged criminal conduct and the person is

6-16  acquitted of the charge or the disposition of the charge is favorable to the

6-17  person, at any time after the charge is dismissed, acquittal is entered or

6-18  disposition of the charge in favor of the person is final, the person who is

6-19  the subject of a record of criminal history relating to the arrest, citation or

6-20  warrant may apply in writing to the central repository and the agency

6-21  which maintains the record to have it removed from the files which are

6-22  available and generally searched for the purpose of responding to inquiries

6-23  concerning the criminal history of a person.

6-24    2.  The central repository and the agency shall remove the record

6-25  unless:

6-26    [1.] (a) The defendant is a fugitive[.

6-27    2.] ;

6-28    (b) The case is under active prosecution according to a current

6-29  certificate of a prosecuting attorney[.

6-30    3.] ;

6-31    (c) The disposition of the case was a deferred prosecution, plea bargain

6-32  or other similar disposition[.

6-33    4.] ;

6-34    (d) The person who is the subject of the record has a prior conviction

6-35  for a felony or gross misdemeanor in any jurisdiction in the United States[.

6-36    5.] ; or

6-37    (e) The person who is the subject of the record has been arrested for or

6-38  charged with another crime, other than a minor traffic violation, [during the

6-39  5 years] since the arrest, citation or warrant which he seeks to have

6-40  removed from the record.

6-41  3. This section does not restrict the authority of a court to order the

6-42  deletion or modification of a record in a particular cause or concerning

6-43  a particular person or event.

6-44    Sec. 10.  NRS 209.511 is hereby amended to read as follows:

6-45    209.511  1.  When an offender is released from prison by expiration of

6-46  his term of sentence, by pardon or by parole, the director:

6-47    (a) May furnish him with a sum of money not to exceed $100, the

6-48  amount to be based upon the offender’s economic need as determined by

6-49  the director ; [.]

7-1    (b) Shall give him notice of the provisions of chapter 179C of NRS and

7-2  NRS 202.360 ; [.]

7-3    (c) Shall require him to sign an acknowledgment of the notice required

7-4  in paragraph (b) ; [.]

7-5    (d) Shall give him notice of the provisions of NRS 179.245 and the

7-6  provisions of NRS 213.090, 213.155 or 213.157, as applicable;

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

7-8    (e)] ;

7-9    (f) May provide him with the cost of transportation to his place of

7-10  residence anywhere within the continental United States, or to the place of

7-11  his conviction[.

7-12    (f)] ; and

7-13    (g) Shall require him to submit to at least one test for exposure to the

7-14  human immunodeficiency virus.

7-15    2.  The costs authorized in paragraphs (a), [(d), (e) and] (e), (f) and (g)

7-16  of subsection 1 must be paid out of the appropriate account within the state

7-17  general fund for the use of the department as other claims against the state

7-18  are paid to the extent that the costs have not been paid in accordance with

7-19  subsection 5 of NRS 209.221 and NRS 209.246.

7-20    Sec. 11.  NRS 213.090 is hereby amended to read as follows:

7-21  213.090  1.  When a pardon is granted for any offense committed, the

7-22  pardon may or may not include restoration of civil rights. If the pardon

7-23  includes restoration of civil rights, it [shall] must be so stated in the

7-24  instrument or certificate of [pardon;] pardon and , when granted upon

7-25  conditions, limitations or restrictions, they [shall] must be fully set forth in

7-26  the instrument.

7-27  2.  In any case where a convicted person has received a pardon without

7-28  immediate restoration of his civil rights , [and has not been convicted of

7-29  any offense greater than a traffic violation within 5 years after such

7-30  pardon,] he may apply to the state board of pardons commissioners for

7-31  restoration of his civil rights and release from penalties and disabilities

7-32  resulting from the offense or crime of which he was convicted. [If, after

7-33  investigation,]

7-34  3.  Upon receiving an application pursuant to subsection 2, the board

7-35  [determines that] shall determine whether the applicant [meets the

7-36  requirements of this subsection, it] has received a pardon. If the board

7-37  determines that the applicant has received a pardon, the board shall , as

7-38  soon as reasonably practicable, restore him to his civil rights and release

7-39  him from all penalties and disabilities resulting from the offense or crime

7-40  of which he was convicted. [If the board refuses to grant such restoration

7-41  and release, the applicant may, after notice to the board, petition the district

7-42  court in which the conviction was obtained for an order directing the board

7-43  to grant such restoration and release.]

7-44  4.  An applicant must not be required to pay a fee to have his civil

7-45  rights restored or to be released from penalties and disabilities pursuant

7-46  to this section.

7-47  Sec. 12.  NRS 213.155 is hereby amended to read as follows:

7-48  213.155  1.  The board may restore a paroled prisoner to his civil

7-49  rights, conditioned upon the prisoner receiving an honorable discharge

8-1  from parole pursuant to NRS 213.154. Such restoration must take effect at

8-2  the expiration of the parole of the prisoner.

8-3    2.  In any case where a convicted person has completed his parole

8-4  without immediate restoration of his civil rights [,] and has been issued an

8-5  honorable discharge from parole pursuant to NRS 213.154 , [and has not

8-6  been convicted of any offense greater than a traffic violation within 5 years

8-7  after completion of parole,] he may apply to the [state board of parole

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

8-9  release from penalties and disabilities which resulted from the offense or

8-10  crime of which he was convicted. [The application must be accompanied

8-11  by a current, certified record of the applicant’s criminal history received

8-12  from the central repository for Nevada records of criminal history. If, after

8-13  investigation, the board determines that the applicant meets the

8-14  requirements of this subsection, it]

8-15  3.  Upon receiving an application pursuant to subsection 2, the

8-16  division shall determine whether the applicant has received an honorable

8-17  discharge from parole. If the division determines that the applicant has

8-18  received an honorable discharge, the division shall forward the

8-19  application to the board.

8-20  4.  Upon receiving an application pursuant to subsection 3, the board

8-21  shall , as soon as reasonably practicable, restore [him] the applicant to his

8-22  civil rights and release him from all penalties and disabilities resulting

8-23  from the offense or crime of which he was convicted. [If the board refuses

8-24  to grant such restoration and release, the applicant may, after notice to the

8-25  board, petition the district court in which the conviction was obtained for

8-26  an order directing the board to grant such restoration and release.]

8-27  5.  An applicant must not be required to pay a fee to have his civil

8-28  rights restored or to be released from penalties and disabilities pursuant

8-29  to this section.

8-30    [3.] 6.  The board may adopt regulations necessary or convenient for

8-31  the purposes of this section.

8-32    Sec. 13.  NRS 213.157 is hereby amended to read as follows:

8-33  213.157  1.  In any case where a person convicted of a felony in the

8-34  State of Nevada has served his sentence and been released from prison,

8-35  [and has not been convicted of any offense greater than a traffic violation

8-36  within 5 years of his release,] he may apply to the division requesting

8-37  restoration of his civil rights and release from all penalties and disabilities

8-38  which resulted from the offense or crime of which he was convicted. [The

8-39  application must be accompanied by a current, certified record of the

8-40  applicant’s criminal history received from the central repository for

8-41  Nevada records of criminal history. If, after investigation, the division

8-42  determines that the applicant meets the requirements of this section, it shall

8-43  petition]

8-44  2.  Upon receiving an application pursuant to subsection 1, the

8-45  division shall determine whether the applicant has served his sentence

8-46  and been released from prison. If the division determines that the

8-47  applicant has served his sentence and been released from prison, the

8-48  division shall forward the application to the district court in which the

8-49  conviction was obtained . [for an order granting such restoration and

9-1  release. If the division refuses to submit such petition, the applicant may,

9-2  after giving notice to the division, petition such court directly for the

9-3  restoration of his]

9-4    3.  Upon receiving an application pursuant to subsection 2, the court

9-5  shall, as soon as reasonably practicable, restore the civil rights of the

9-6  applicant and release him from all penalties and disabilities which resulted

9-7  from the offense or crime of which he was convicted.

9-8    4.  An applicant must not be required to pay a fee to have his civil

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

9-10  to this section.

9-11    Sec. 14.  The amendatory provisions of this act apply to:

9-12    1.  A petition for an order to seal records pursuant to NRS 179.245 or

9-13  179.255 that is filed on or after the effective date of this act.

9-14    2.  An application for restoration of civil rights pursuant to NRS

9-15  176A.860, 213.090, 213.155 or 213.157 that is filed on or after the

9-16  effective date of this act.

9-17    Sec. 15.  This act becomes effective upon passage and approval.

 

9-18  H