Assembly Bill No. 330–Assemblyman Nolan

 

March 13, 2001

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes various changes concerning prisons and offenders. (BDR 16‑662)

 

FISCAL NOTE:            Effect on Local Government: No.

                                    Effect on the State: Contains Appropriation not included in Executive Budget.

 

~

 

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

 

AN ACT relating to prisons; requiring the director of the department of prisons to establish a program to provide mandatory treatment of sex offenders; requiring the department to establish a program to test certain employees of the department for the use of alcohol and controlled substances; requiring the department to test at least 20 percent of offenders each year for the use of alcohol or a controlled substance; making various changes concerning criminal acts committed in a prison; making various changes concerning persons visiting a prison; requiring the attorney general to retain private legal counsel to prosecute certain crimes involving prisons; providing a penalty; making an appropriation; 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 209 of NRS is hereby amended by adding thereto

1-2  the provisions set forth as sections 2 to 5, inclusive, of this act.

1-3    Sec. 2.  1.  The director shall establish a program of treatment, to be

1-4  carried out within each facility and institution, for the treatment of each

1-5  sex offender. The program must provide that each sex offender shall

1-6  participate in the program.

1-7    2.  The director shall adopt, with the approval of the board,

1-8  regulations governing the operation of the program of treatment.

1-9    3.  The department may sanction, pursuant to subsection 4, an

1-10  offender:

1-11    (a) Who refuses or fails to participate in the program of treatment;

1-12    (b) Who fails to comply with any requirement of the program of

1-13  treatment; or

1-14    (c) Who fails to comply with any regulation adopted by the director

1-15  concerning the program of treatment.

2-1    4.  In addition to any other sanction or penalty that may be imposed

2-2  pursuant to law or regulation, an offender who violates subsection 3 may

2-3  be sanctioned by:

2-4    (a) Forfeiture of all deductions of time earned by the offender before

2-5  commission of the violation or forfeiture of such part of those deductions

2-6  as the director considers just, pursuant to NRS 209.451; and

2-7    (b) Denial of the privilege to have visitors for a specified period, as

2-8  determined by the director.

2-9    5.  As used in this section, “sex offender” means an offender who is

2-10  imprisoned for any of the offenses listed in subsection 5 of NRS

2-11  213.1214, except for abuse or neglect of a child pursuant to NRS 200.508

2-12  if such abuse or neglect did not involve sexual abuse or sexual

2-13  exploitation.

2-14    Sec. 3.  1.  The director shall establish a program that provides for

2-15  the testing of certain employees of the department for the use of alcohol

2-16  and controlled substances.

2-17    2.  The program must:

2-18    (a) Provide for periodic testing for the use of alcohol and controlled

2-19  substances of all employees of the department who come into regular

2-20  contact with offenders or who have access to firearms in the regular

2-21  course of their duties;

2-22    (b) Provide for the testing of at least 50 percent of such employees

2-23  each year, considering the attrition of such employees;

2-24    (c) Require such employees to report for testing on the same day that

2-25  they are notified that they are to be tested; and

2-26    (d) Provide for the testing of any employee of the department if there

2-27  is reasonable suspicion, based on objective information or physical

2-28  observation of the employee, that the employee is under the influence of

2-29  alcohol or is illegally using a controlled substance.

2-30    3.  The director shall maintain confidential records concerning the

2-31  program, including, without limitation, the number of employees tested,

2-32  the number of positive and negative test results, the substances detected,

2-33  and the number of tests that were conducted as a result of reasonable

2-34  suspicion that the employee was under the influence of alcohol or

2-35  illegally using a controlled substance.

2-36    4.  The director shall use the most cost-effective means possible in

2-37  operating the program, and shall actively seek grants from the Federal

2-38  Government and other sources to operate and expand the program.

2-39    5.  The director shall adopt regulations, with the approval of the

2-40  board, governing the operation of the program. The regulations must set

2-41  forth:

2-42    (a) The types of tests to be used;

2-43    (b) The manner in which a sample for a test is to be obtained;

2-44    (c) The persons who are authorized to obtain a sample for a test;

2-45    (d) The method for preserving the chain of custody of a sample

2-46  obtained for a test;

2-47    (e) The actions that will be taken if the results of a test are positive or

2-48  if an employee refuses to submit to a test;

3-1    (f) Any training that will be provided to employees of the department

3-2  to carry out the program, including, without limitation, training

3-3  concerning determining whether reasonable suspicion exists that a

3-4  person is under the influence of alcohol or illegally using a controlled

3-5  substance;

3-6    (g) The assistance and treatment concerning alcohol and substance

3-7  abuse that the department provides to the employees of the department;

3-8  and

3-9    (h) Any other regulations necessary to carry out the program.

3-10    Sec. 4.  1.  Each person seeking to visit an institution shall, before

3-11  entering the institution, sign a consent form in which the person:

3-12    (a) Gives his consent to be stopped and searched by a person of the

3-13  same sex without probable cause while in the institution; and

3-14    (b) If he is driving a vehicle on to the grounds of the institution, gives

3-15  his consent to have his vehicle searched without probable cause while it

3-16  is on the grounds of the institution.

3-17    2.  A search conducted without probable cause pursuant to a consent

3-18  form signed pursuant to this section must be reasonable under the

3-19  circumstances.

3-20    3.  A person seeking to visit an institution must not be admitted to the

3-21  institution unless he has signed the consent form required pursuant to

3-22  this section.

3-23    4.  The director shall, with assistance from the office of the attorney

3-24  general, prescribe:

3-25    (a) The consent form to be used pursuant to this section; and

3-26    (b) The manner in which searches conducted pursuant to this section

3-27  must be conducted.

3-28    Sec. 5.  The director shall post and maintain a sign at the entrance to

3-29  each institution which is clearly readable and which explains in clear

3-30  language:

3-31    1.  The requirement set forth in section 4 of this act that a person

3-32  seeking to visit the institution sign a consent form; and

3-33    2.  The prohibitions set forth in NRS 212.160 and the penalties for

3-34  violating a provision of that section.

3-35    Sec. 6.  NRS 209.367 is hereby amended to read as follows:

3-36    209.367  1.  The director shall establish a program, to be carried out

3-37  within each facility and institution, that provides for periodic testing of

3-38  offenders for use of alcohol and controlled substances. The program must

3-39  [provide] :

3-40    (a) Provide that the selection of offenders to be tested for use of alcohol

3-41  and controlled substances must be made on a random basis[.] ; and

3-42    (b) Provide that at least 20 percent of offenders are tested for use of

3-43  alcohol and controlled substances each year, considering the attrition of

3-44  offenders.

3-45    2.  The director shall adopt, with the approval of the board, regulations

3-46  governing the operation of the program. The regulations must set forth the

3-47  procedure for testing, including, but not limited to:

3-48    (a) The types of tests to be used;

3-49    (b) The manner in which a sample for a test is to be obtained;

4-1    (c) The persons who are authorized to obtain a sample for a test; and

4-2    (d) The method for preserving the chain of custody of a sample obtained

4-3  for a test.

4-4    3.  The department shall inform the offenders in each facility and

4-5  institution of the requirement to submit to a test and the sanctions for

4-6  refusing or failing to submit to a test and for using alcohol or a controlled

4-7  substance. The department may provide this information through a general

4-8  notice posted or distributed in each facility and institution.

4-9    4.  The department may sanction, pursuant to subsection 5, an offender:

4-10    (a) Who refuses or fails to submit to a test;

4-11    (b) Whose test detects alcohol or a controlled substance;

4-12    (c) Who manufactures, possesses, uses, sells, supplies, provides,

4-13  distributes, conceals or stores alcohol or a controlled substance; or

4-14    (d) Who attempts to manufacture, possess, use, sell, supply, provide,

4-15  distribute, conceal or store alcohol or a controlled substance.

4-16    5.  In addition to any other sanction or penalty that may be imposed

4-17  pursuant to law or regulation, an offender who violates subsection 4 may

4-18  be sanctioned by:

4-19    (a) Forfeiture of all deductions of time earned by the offender before

4-20  commission of the violation or forfeiture of such part of those deductions

4-21  as the director considers just, pursuant to NRS 209.451; and

4-22    (b) Denial of the privilege to have visitors for a specified period, as

4-23  determined by the director.

4-24    6.  If alcohol or a controlled substance is found in a facility or

4-25  institution, the director may order that for a specified period:

4-26    (a) The offenders housed in the general area where the alcohol or

4-27  controlled substance is found; or

4-28    (b) All offenders in the facility or institution,

4-29  be confined to their cells or housing units or be denied the privilege to have

4-30  visitors, or both.

4-31    7.  The establishment of the program to test offenders for use of alcohol

4-32  and controlled substances pursuant to this section does not affect:

4-33    (a) The authority of the department to test an offender for use of alcohol

4-34  or a controlled substance for any other lawful purpose or reason; or

4-35    (b) The procedures used by the department to conduct such tests.

4-36    Sec. 7.  NRS 209.451 is hereby amended to read as follows:

4-37    209.451  1.  If an offender:

4-38    (a) Commits an assault upon his keeper or a foreman, officer, offender

4-39  or other person, or otherwise endangers life;

4-40    (b) Is guilty of a flagrant disregard of the regulations of the department

4-41  or of the terms and conditions of his residential confinement;

4-42    (c) Commits a misdemeanor, gross misdemeanor or felony; or

4-43    (d) In a civil action, in state or federal court, is found by the court to

4-44  have presented a pleading, written motion or other document in writing to

4-45  the court which:

4-46      (1) Contains a claim or defense that is included for an improper

4-47  purpose, including, without limitation, for the purpose of harassing his

4-48  opponent, causing unnecessary delay in the litigation or increasing the cost

4-49  of the litigation;

5-1       (2) Contains a claim, defense or other argument which is not

5-2  warranted by existing law or by a reasonable argument for a change in

5-3  existing law or a change in the interpretation of existing law; or

5-4       (3) Contains allegations or information presented as fact for which

5-5  evidentiary support is not available or is not likely to be discovered after

5-6  further investigation,

5-7  he forfeits all deductions of time earned by him before the commission of

5-8  that offense or act, or forfeits such part of those deductions as the director

5-9  considers just.

5-10    2.  If an offender commits a serious violation of the regulations of the

5-11  department or of the terms and conditions of his residential confinement or

5-12  if an offender violates subsection 4 of NRS 209.367, or subsection 3 of

5-13  section 2 of this act, he may forfeit all or part of such deductions, in the

5-14  discretion of the director.

5-15    3.  A forfeiture may be made only by the director after proof of the

5-16  commission of an act prohibited pursuant to this section and notice to the

5-17  offender in the manner prescribed in the regulations of the department. The

5-18  decision of the director regarding a forfeiture is final.

5-19    4.  The director may restore credits forfeited for such reasons as he

5-20  considers proper.

5-21    5.  As used in this section, “civil action” includes a petition for a writ of

5-22  habeas corpus filed in state or federal court.

5-23    Sec. 8.  NRS 212.160 is hereby amended to read as follows:

5-24    212.160  1.  A prisoner or other person, who is not authorized by law,

5-25  [who knowingly furnishes, attempts] shall not knowingly:

5-26    (a) Furnish, attempt to furnish, or [aids or assists] aid or assist in

5-27  furnishing or attempting to furnish to a prisoner confined in an institution

5-28  of the department of prisons, or any other place where prisoners are

5-29  authorized to be or are assigned by the director of the department, any

5-30  deadly weapon, explosive, a facsimile of a firearm or an explosive, any

5-31  controlled substance or intoxicating liquor[,] ;

5-32    (b) Bring or send into or assist in bringing or sending into a prison

5-33  any deadly weapon, explosive, a facsimile of a firearm or an explosive,

5-34  any controlled substance or intoxicating liquor; or

5-35    (c) Possess in a prison any deadly weapon, explosive, a facsimile of a

5-36  firearm or an explosive, any controlled substance or intoxicating liquor.

5-37    2.  A person who violates the provisions of subsection 1 shall be

5-38  punished:

5-39    (a) Where a deadly weapon, controlled substance, explosive or a

5-40  facsimile of a firearm or explosive is involved, for a category B felony by

5-41  imprisonment in the state prison for a minimum term of not less than 1 year

5-42  and a maximum term of not more than 6 years, and may be further

5-43  punished by a fine of not more than $5,000.

5-44    (b) Where an intoxicant is involved, for a gross misdemeanor.

5-45    [2.] 3.  Knowingly leaving or causing to be left any deadly weapon,

5-46  explosive, facsimile of a firearm or explosive, controlled substance or

5-47  intoxicating liquor where it may be obtained by any prisoner constitutes,

5-48  within the meaning of this section, the furnishing of the article to the

5-49  prisoner.

6-1    [3.  A prisoner confined in an institution of the department of prisons,

6-2  or any other place where prisoners are authorized to be or are assigned by

6-3  the director of the department, who possesses a controlled substance

6-4  without lawful authorization is guilty of a category D felony and shall be

6-5  punished as provided in NRS 193.130.]

6-6    Sec. 9.  NRS 228.170 is hereby amended to read as follows:

6-7    228.170  1.  Whenever the governor directs or when, in the opinion of

6-8  the attorney general, to protect and secure the interest of the state it is

6-9  necessary that a suit be commenced or defended in any federal or state

6-10  court, the attorney general shall commence the action or make the defense.

6-11    2.  The attorney general may investigate and prosecute any crime

6-12  committed by a person:

6-13    (a) Confined in or committed to an institution or facility of the

6-14  department of prisons.

6-15    (b) Acting in concert with, whether as a principal or accessory, any

6-16  person confined in or committed to an institution or facility of the

6-17  department of prisons.

6-18    (c) In violation of chapter 212 of NRS, if the crime involves:

6-19      (1) An institution or facility of the department of prisons; or

6-20      (2) A person confined in or committed to such an institution or

6-21  facility.

6-22    3.  The attorney general shall retain private legal counsel to

6-23  investigate and prosecute any crime described in subsection 2.

6-24    Sec. 10.  Chapter 284 of NRS is hereby amended by adding thereto a

6-25  new section to read as follows:

6-26    The provisions of NRS 284.406 to 284.407, inclusive, do not apply to

6-27  employees of the department of prisons who are subject to the program

6-28  established pursuant to section 3 of this act.

6-29    Sec. 11.  NRS 284.4061 is hereby amended to read as follows:

6-30    284.4061  As used in NRS 284.406 to 284.407, inclusive, and section

6-31  10 of this act, unless the context otherwise requires:

6-32    1.  “Employee” means a person in the classified service of the state,

6-33  except:

6-34    (a) Officers and members of the Nevada National Guard;

6-35    (b) Persons engaged in public work for the state but employed by

6-36  contractors when the performance of the contract is authorized by the

6-37  legislature or another competent authority; and

6-38    (c) Patient and inmate help in state charitable, penal, mental and

6-39  correctional institutions.

6-40    2.  “Screening test” means a test of a person’s:

6-41    (a) Breath or blood to detect the general presence of alcohol; or

6-42    (b) Urine to detect the general presence of a controlled substance or any

6-43  other drug,

6-44  which could impair that person’s ability to perform the duties of

6-45  employment safely and efficiently.

6-46    Sec. 12.  1.  There is hereby appropriated from the state general fund

6-47  to the department of prisons the sum of $150,000 for purchasing one

6-48  portable ion scanner for each institution and one ion scanner for use at the

6-49  entrance for visitors at each institution.

7-1    2.  Any remaining balance of the appropriation made by subsection 1

7-2  must not be committed for expenditure after June 30, 2002, and reverts to

7-3  the state general fund as soon as all payments of money committed have

7-4  been made.

7-5    Sec. 13.  The amendatory provisions of this act do not apply to

7-6  offenses committed before July 1, 2001.

7-7    Sec. 14.  This act becomes effective on July 1, 2001.

 

7-8  H