Assembly Bill No. 437–Assemblymen Ohrenschall, Anderson, Carpenter, Claborn, Koivisto, Manendo, McClain and Oceguera

 

March 19, 2001

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes various changes related to sentencing of certain offenders and community notification of sex offenders. (BDR 14‑1285)

 

FISCAL NOTE:            Effect on Local Government: Yes.

                                    Effect on the State: Yes.

 

CONTAINS UNFUNDED MANDATE (§§ 1, 4, 7)

(Not Requested by Affected Local Government)

 

~

 

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

 

AN ACT relating to public safety; requiring certification by a psychologist or psychiatrist before certain offenders may be released to serve suspended sentences, probation or residential confinement; making offenders convicted of certain sex offenses that are misdemeanors or gross misdemeanors subject to the provisions governing community notification of sex offenders; 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. NRS 176A.110 is hereby amended to read as follows:

1-2    176A.110  1.  The court shall not grant probation to or suspend the

1-3  sentence of a person convicted of an offense listed in subsection [3] 4

1-4  unless a psychologist licensed to practice in this state or a psychiatrist

1-5  licensed to practice medicine in this state certifies that the person is not a

1-6  menace to the health, safety or morals of others.

1-7    2.  If a person is charged with an offense listed in subsection 4 and

1-8  the person is not convicted of that offense but is convicted of any other

1-9  offense arising out of the same facts, the court shall not grant probation

1-10  to or suspend the sentence of the person unless a psychologist licensed to

1-11  practice in this state or a psychiatrist licensed to practice medicine in this

1-12  state certifies that the person is not a menace to the health, safety or

1-13  morals of others.

1-14    3.  This section does not create a right in any person to be certified or to

1-15  continue to be certified . [and no] No person may bring a cause of action

2-1  against the state, its political subdivisions, or the agencies, boards,

2-2  commissions, departments, officers or employees of the state or its

2-3  political subdivisions for not certifying a person pursuant to this section

2-4  or for refusing to consider a person for certification pursuant to this

2-5  section.

2-6    [3.] 4. The provisions of this section apply to a person convicted of

2-7  any of the following offenses:

2-8    (a) Attempted sexual assault of a person who is 16 years of age or older

2-9  pursuant to NRS 200.366.

2-10    (b) Statutory sexual seduction pursuant to NRS 200.368.

2-11    (c) Battery with intent to commit sexual assault pursuant to NRS

2-12  200.400.

2-13    (d) Abuse or neglect of a child pursuant to NRS 200.508.

2-14    (e) An offense involving pornography and a minor pursuant to NRS

2-15  200.710 to 200.730, inclusive.

2-16    (f) Incest pursuant to NRS 201.180.

2-17    (g) Solicitation of a minor to engage in acts constituting the infamous

2-18  crime against nature pursuant to NRS 201.195.

2-19    (h) Open or gross lewdness pursuant to NRS 201.210.

2-20    (i) Indecent or obscene exposure pursuant to NRS 201.220.

2-21    (j) Lewdness with a child pursuant to NRS 201.230.

2-22    (k) Sexual penetration of a dead human body pursuant to NRS 201.450.

2-23    (l) A violation of NRS 207.180.

2-24    (m) Annoyance or molestation of a minor pursuant to NRS 207.260.

2-25    (n) An attempt to commit an offense listed in paragraphs (b) to [(l),

2-26  inclusive.

2-27    (n)] (m), inclusive.

2-28    (o) Coercion or attempted coercion that is determined to be sexually

2-29  motivated pursuant to NRS 207.193.

2-30    Sec. 2.  NRS 179D.620 is hereby amended to read as follows:

2-31    179D.620  “Sexual offense” means any of the following offenses:

2-32    1.  Murder of the first degree committed in the perpetration or

2-33  attempted perpetration of sexual assault or of sexual abuse or sexual

2-34  molestation of a child less than 14 years of age pursuant to paragraph (b) of

2-35  subsection 1 of NRS 200.030.

2-36    2.  Sexual assault pursuant to NRS 200.366.

2-37    3.  Statutory sexual seduction pursuant to NRS 200.368 . [, if punished

2-38  as a felony.]

2-39    4.  Battery with intent to commit sexual assault pursuant to NRS

2-40  200.400.

2-41    5.  An offense involving the administration of a drug to another person

2-42  with the intent to enable or assist the commission of a felony pursuant to

2-43  NRS 200.405, if the felony is an offense listed in this section.

2-44    6.  An offense involving the administration of a controlled substance to

2-45  another person with the intent to enable or assist the commission of a crime

2-46  of violence pursuant to NRS 200.408, if the crime of violence is an offense

2-47  listed in this section.

2-48    7.  Abuse of a child pursuant to NRS 200.508, if the abuse involved

2-49  sexual abuse or sexual exploitation . [and is punished as a felony.]

3-1    8.  An offense involving pornography and a minor pursuant to NRS

3-2  200.710 to 200.730, inclusive.

3-3    9.  Incest pursuant to NRS 201.180.

3-4    10.  Solicitation of a minor to engage in acts constituting the infamous

3-5  crime against nature pursuant to NRS 201.195 . [, if punished as a felony.]

3-6    11.  Open or gross lewdness pursuant to NRS 201.210 . [, if punished

3-7  as a felony.]

3-8    12.  Indecent or obscene exposure pursuant to NRS 201.220 . [, if

3-9  punished as a felony.]

3-10    13.  Lewdness with a child pursuant to NRS 201.230.

3-11    14.  Sexual penetration of a dead human body pursuant to NRS

3-12  201.450.

3-13    15.  Annoyance or molestation of a minor pursuant to NRS 207.260 . [,

3-14  if punished as a felony.]

3-15    16.  An attempt to commit an offense listed in subsections 1 to 15,

3-16  inclusive . [, if punished as a felony.]

3-17    17.  An offense that is determined to be sexually motivated pursuant to

3-18  NRS 175.547 or 207.193.

3-19    18.  An offense committed in another jurisdiction that, if committed in

3-20  this state, would be an offense listed in this section. This subsection

3-21  includes, but is not limited to, an offense prosecuted in:

3-22    (a) A tribal court.

3-23    (b) A court of the United States or the Armed Forces of the United

3-24  States.

3-25    19.  An offense of a sexual nature committed in another jurisdiction ,

3-26  [and punished as a felony,] whether or not the offense would be an offense

3-27  listed in this section, if the person who committed the offense resides or

3-28  has resided or is or has been a student or worker in any jurisdiction in

3-29  which the person is or has been required by the laws of that jurisdiction to

3-30  register as a sex offender because of the offense. This subsection includes,

3-31  but is not limited to, an offense prosecuted in:

3-32    (a) A tribal court.

3-33    (b) A court of the United States or the Armed Forces of the United

3-34  States.

3-35    (c) A court having jurisdiction over juveniles.

3-36    Sec. 3.  NRS 179D.750 is hereby amended to read as follows:

3-37    179D.750  1.  Except as otherwise provided in subsection 5 of NRS

3-38  179D.720, if a sex offender has been assigned a level of notification

3-39  pursuant to NRS 179D.600 to 179D.800, inclusive, and the sex offender:

3-40    (a) Is convicted of an offense that poses a threat to the safety or well-

3-41  being of others;

3-42    (b) Annoys, harasses, threatens or intimidates a victim of one of his

3-43  sexual offenses; or

3-44    (c) Commits an overt act which is sexually motivated or involves the

3-45  use or threatened use of force or violence and which causes harm or creates

3-46  a reasonable apprehension of harm,

3-47  the level of notification assigned to the sex offender may be changed in

3-48  accordance with the guidelines and procedures established by the attorney

3-49  general pursuant to NRS 179D.600 to 179D.800, inclusive.

4-1    2.  As used in this section[:

4-2    (a) “Sexual offense” includes, but is not limited to, a sexual offense

4-3  punishable as a misdemeanor or gross misdemeanor.

4-4    (b) “Sexually] , “sexually motivated” means that one of the purposes

4-5  for which the person committed the act was his sexual gratification.

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

4-7  section to read as follows:

4-8    1.  If a person is convicted of an offense listed in subsection 4 of NRS

4-9  176A.110 that is within the jurisdiction of the justice’s court, the justice

4-10  of the peace shall not suspend the sentence of the person or sentence the

4-11  person to a term of residential confinement unless a psychologist

4-12  licensed to practice in this state or a psychiatrist licensed to practice

4-13  medicine in this state certifies that the person is not a menace to the

4-14  health, safety or morals of others.

4-15    2.  If a person is charged with an offense listed in subsection 4 of

4-16  NRS 176A.110 that is within the jurisdiction of the justice’s court and the

4-17  person is not convicted of that offense but is convicted of any other

4-18  offense arising out of the same facts, the justice of the peace shall not

4-19  suspend the sentence of the person or sentence the person to a term of

4-20  residential confinement unless a psychologist licensed to practice in this

4-21  state or a psychiatrist licensed to practice medicine in this state certifies

4-22  that the person is not a menace to the health, safety or morals of others.

4-23    3.  This section does not create a right in any person to be certified or

4-24  to continue to be certified. No person may bring a cause of action against

4-25  the state, its political subdivisions, or the agencies, boards, commissions,

4-26  departments, officers or employees of the state or its political subdivisions

4-27  for not certifying a person pursuant to this section or for refusing to

4-28  consider a person for certification pursuant to this section.

4-29    Sec. 5.  NRS 4.373 is hereby amended to read as follows:

4-30    4.373  1.  Except as otherwise provided in subsection 2, NRS

4-31  211A.127 , section 4 of this act or another specific statute, or unless the

4-32  suspension of a sentence is expressly forbidden, a justice of the peace may

4-33  suspend, for not more than 1 year, the sentence of a person convicted of a

4-34  misdemeanor. When the circumstances warrant, the justice of the peace

4-35  may order as a condition of suspension that the offender:

4-36    (a) Make restitution to the owner of any property that is lost, damaged

4-37  or destroyed as a result of the commission of the offense;

4-38    (b) Engage in a program of work for the benefit of the community, for

4-39  not more than 200 hours;

4-40    (c) Actively participate in a program of professional counseling at the

4-41  expense of the offender;

4-42    (d) Abstain from the use of alcohol and controlled substances;

4-43    (e) Refrain from engaging in any criminal activity;

4-44    (f) Engage or refrain from engaging in any other conduct deemed

4-45  appropriate by the justice of the peace;

4-46    (g) Submit to a search and seizure by the chief of a department of

4-47  alternative sentencing, an assistant alternative sentencing officer or any

4-48  other law enforcement officer at any time of the day or night without a

4-49  search warrant; and

5-1    (h) Submit to periodic tests to determine whether the offender is using a

5-2  controlled substance or consuming alcohol.

5-3    2.  [If] Except as otherwise provided in section 4 of this act, if a

5-4  person is convicted of a misdemeanor that constitutes domestic violence

5-5  pursuant to NRS 33.018, the justice of the peace may, after the person has

5-6  served any mandatory minimum period of confinement, suspend the

5-7  remainder of the sentence of the person for not more than 3 years upon the

5-8  condition that the person actively participate in:

5-9    (a) A program of treatment for the abuse of alcohol or drugs which is

5-10  certified by the bureau of alcohol and drug abuse in the department of

5-11  human resources;

5-12    (b) A program for the treatment of persons who commit domestic

5-13  violence that has been certified pursuant to NRS 228.470; or

5-14    (c) Both programs set forth in paragraphs (a) and (b),

5-15  and that he comply with any other condition of suspension ordered by the

5-16  justice of the peace.

5-17    3.  The justice of the peace may order reports from a person whose

5-18  sentence is suspended at such times as he deems appropriate concerning

5-19  the compliance of the offender with the conditions of suspension. If the

5-20  offender complies with the conditions of suspension to the satisfaction of

5-21  the justice of the peace, the sentence may be reduced to not less than the

5-22  minimum period of confinement established for the offense.

5-23    4.  The justice of the peace may issue a warrant for the arrest of an

5-24  offender who violates or fails to fulfill a condition of suspension.

5-25    Sec. 6.  NRS 4.3762 is hereby amended to read as follows:

5-26    4.3762  1.  Except as otherwise provided in subsection 7[,] and

5-27  section 4 of this act, in lieu of imposing any punishment other than a

5-28  minimum sentence required by statute, a justice of the peace may sentence

5-29  a person convicted of a misdemeanor to a term of residential confinement.

5-30  In making this determination, the justice of the peace shall consider the

5-31  criminal record of the convicted person and the seriousness of the crime

5-32  committed.

5-33    2.  In sentencing a convicted person to a term of residential

5-34  confinement, the justice of the peace shall:

5-35    (a) Require the convicted person to be confined to his residence during

5-36  the time he is away from his employment, public service or other activity

5-37  authorized by the justice of the peace; and

5-38    (b) Require intensive supervision of the convicted person, including,

5-39  without limitation, electronic surveillance and unannounced visits to his

5-40  residence or other locations where he is expected to be to determine

5-41  whether he is complying with the terms of his sentence.

5-42    3.  In sentencing a convicted person to a term of residential

5-43  confinement, the justice of the peace may, when the circumstances warrant,

5-44  require the convicted person to submit to:

5-45    (a) A search and seizure by the chief of a department of alternative

5-46  sentencing, an assistant alternative sentencing officer or any other law

5-47  enforcement officer at any time of the day or night without a search

5-48  warrant; and

6-1    (b) Periodic tests to determine whether the offender is using a controlled

6-2  substance or consuming alcohol.

6-3    4.  Except as otherwise provided in subsection 5, an electronic device

6-4  may be used to supervise a convicted person sentenced to a term of

6-5  residential confinement. The device must be minimally intrusive and

6-6  limited in capability to recording or transmitting information concerning

6-7  the presence of the person at his residence, including, but not limited to, the

6-8  transmission of still visual images which do not concern the activities of

6-9  the person while inside his residence. A device which is capable of

6-10  recording or transmitting:

6-11    (a) Oral or wire communications or any auditory sound; or

6-12    (b) Information concerning the activities of the person while inside his

6-13  residence,

6-14  must not be used.

6-15    5.  An electronic device must be used in the manner set forth in

6-16  subsection 4 to supervise a person who is sentenced pursuant to paragraph

6-17  (b) of subsection 1 of NRS 484.3792 for a second violation within 7 years

6-18  of driving under the influence of intoxicating liquor or a controlled

6-19  substance.

6-20    6.  A term of residential confinement, together with the term of any

6-21  minimum sentence required by statute, may not exceed the maximum

6-22  sentence which otherwise could have been imposed for the offense.

6-23    7.  The justice of the peace shall not sentence a person convicted of

6-24  committing a battery which constitutes domestic violence pursuant to NRS

6-25  33.018 to a term of residential confinement in lieu of imprisonment unless

6-26  the justice of the peace makes a finding that the person is not likely to pose

6-27  a threat to the victim of the battery.

6-28    8.  The justice of the peace may issue a warrant for the arrest of a

6-29  convicted person who violates or fails to fulfill a condition of residential

6-30  confinement.

6-31    Sec. 7.  Chapter 5 of NRS is hereby amended by adding thereto a new

6-32  section to read as follows:

6-33    1.  If a person is convicted of a misdemeanor for violating an

6-34  ordinance that prohibits the same or similar conduct as a misdemeanor

6-35  listed in subsection 4 of NRS 176A.110, the municipal judge shall not

6-36  suspend the sentence of the person or sentence the person to a term of

6-37  residential confinement unless a psychologist licensed to practice in this

6-38  state or a psychiatrist licensed to practice medicine in this state certifies

6-39  that the person is not a menace to the health, safety or morals of others.

6-40    2.  If a person is charged with a misdemeanor for violating an

6-41  ordinance that prohibits the same or similar conduct as a misdemeanor

6-42  listed in subsection 4 of NRS 176A.110 and the person is not convicted of

6-43  that offense but is convicted of any other offense arising out of the same

6-44  facts, the municipal judge shall not suspend the sentence of the person or

6-45  sentence the person to a term of residential confinement unless a

6-46  psychologist licensed to practice in this state or a psychiatrist licensed to

6-47  practice medicine in this state certifies that the person is not a menace to

6-48  the health, safety or morals of others.

7-1    3.  This section does not create a right in any person to be certified or

7-2  to continue to be certified. No person may bring a cause of action against

7-3  the state, its political subdivisions, or the agencies, boards, commissions,

7-4  departments, officers or employees of the state or its political subdivisions

7-5  for not certifying a person pursuant to this section or for refusing to

7-6  consider a person for certification pursuant to this section.

7-7    Sec. 8.  NRS 5.055 is hereby amended to read as follows:

7-8    5.055  1.  Except as otherwise provided in subsection 2, NRS

7-9  211A.127 , section 7 of this act or another specific statute, or unless the

7-10  suspension of a sentence is expressly forbidden, a municipal judge may

7-11  suspend, for not more than 1 year, the sentence of a person convicted of a

7-12  misdemeanor. When the circumstances warrant, the municipal judge may

7-13  order as a condition of suspension that the offender:

7-14    (a) Make restitution to the owner of any property that is lost, damaged

7-15  or destroyed as a result of the commission of the offense;

7-16    (b) Engage in a program of work for the benefit of the community, for

7-17  not more than 200 hours;

7-18    (c) Actively participate in a program of professional counseling at the

7-19  expense of the offender;

7-20    (d) Abstain from the use of alcohol and controlled substances;

7-21    (e) Refrain from engaging in any criminal activity;

7-22    (f) Engage or refrain from engaging in any other conduct deemed

7-23  appropriate by the municipal judge;

7-24    (g) Submit to a search and seizure by the chief of a department of

7-25  alternative sentencing, an assistant alternative sentencing officer or any

7-26  other law enforcement officer at any time of the day or night without a

7-27  search warrant; and

7-28    (h) Submit to periodic tests to determine whether the offender is using

7-29  any controlled substance or alcohol.

7-30    2.  [If] Except as otherwise provided in section 7 of this act, if a

7-31  person is convicted of a misdemeanor that constitutes domestic violence

7-32  pursuant to NRS 33.018, the municipal judge may, after the person has

7-33  served any mandatory minimum period of confinement, suspend the

7-34  remainder of the sentence of the person for not more than 3 years upon the

7-35  condition that the person actively participate in:

7-36    (a) A program of treatment for the abuse of alcohol or drugs which is

7-37  certified by the bureau of alcohol and drug abuse in the department of

7-38  human resources;

7-39    (b) A program for the treatment of persons who commit domestic

7-40  violence that has been certified pursuant to NRS 228.470; or

7-41    (c) Both programs set forth in paragraphs (a) and (b),

7-42  and that he comply with any other condition of suspension ordered by the

7-43  municipal judge.

7-44    3.  The municipal judge may order reports from a person whose

7-45  sentence is suspended at such times as he deems appropriate concerning

7-46  the compliance of the offender with the conditions of suspension. If the

7-47  offender complies with the conditions of suspension to the satisfaction of

7-48  the municipal judge, the sentence may be reduced to not less than the

7-49  minimum period of confinement established for the offense.

8-1    4.  The municipal judge may issue a warrant for the arrest of an

8-2  offender who violates or fails to fulfill a condition of suspension.

8-3    Sec. 9.  NRS 5.076 is hereby amended to read as follows:

8-4    5.076  1.  Except as otherwise provided in subsection 7[,] and section

8-5  7 of this act, in lieu of imposing any punishment other than a minimum

8-6  sentence required by statute, a municipal judge may sentence a person

8-7  convicted of a misdemeanor to a term of residential confinement. In

8-8  making this determination, the municipal judge shall consider the criminal

8-9  record of the convicted person and the seriousness of the crime committed.

8-10    2.  In sentencing a convicted person to a term of residential

8-11  confinement, the municipal judge shall:

8-12    (a) Require the convicted person to be confined to his residence during

8-13  the time he is away from his employment, public service or other activity

8-14  authorized by the municipal judge; and

8-15    (b) Require intensive supervision of the convicted person, including,

8-16  without limitation, electronic surveillance and unannounced visits to his

8-17  residence or other locations where he is expected to be in order to

8-18  determine whether he is complying with the terms of his sentence.

8-19    3.  In sentencing a convicted person to a term of residential

8-20  confinement, the municipal judge may, when the circumstances warrant,

8-21  require the convicted person to submit to:

8-22    (a) A search and seizure by the chief of a department of alternative

8-23  sentencing, an assistant alternative sentencing officer or any other law

8-24  enforcement officer at any time of the day or night without a search

8-25  warrant; and

8-26    (b) Periodic tests to determine whether the offender is using a controlled

8-27  substance or consuming alcohol.

8-28    4.  Except as otherwise provided in subsection 5, an electronic device

8-29  may be used to supervise a convicted person sentenced to a term of

8-30  residential confinement. The device must be minimally intrusive and

8-31  limited in capability to recording or transmitting information concerning

8-32  the presence of the person at his residence, including, but not limited to, the

8-33  transmission of still visual images which do not concern the activities of

8-34  the person while inside his residence. A device which is capable of

8-35  recording or transmitting:

8-36    (a) Oral or wire communications or any auditory sound; or

8-37    (b) Information concerning the activities of the person while inside his

8-38  residence,

8-39  must not be used.

8-40    5.  An electronic device must be used in the manner set forth in

8-41  subsection 4 to supervise a person who is sentenced pursuant to paragraph

8-42  (b) of subsection 1 of NRS 484.3792 for a second violation within 7 years

8-43  of driving under the influence of intoxicating liquor or a controlled

8-44  substance.

8-45    6.  A term of residential confinement, together with the term of any

8-46  minimum sentence required by statute, may not exceed the maximum

8-47  sentence which otherwise could have been imposed for the offense.

8-48    7.  The municipal judge shall not sentence a person convicted of

8-49  committing a battery which constitutes domestic violence pursuant to NRS

9-1  33.018 to a term of residential confinement in lieu of imprisonment unless

9-2  the municipal judge makes a finding that the person is not likely to pose a

9-3  threat to the victim of the battery.

9-4    8.  The municipal judge may issue a warrant for the arrest of a

9-5  convicted person who violates or fails to fulfill a condition of residential

9-6  confinement.

9-7    Sec. 10.  The provisions of subsection 1 of NRS 354.599 do not apply

9-8  to any additional expenses of a local government that are related to the

9-9  provisions of this act.

9-10    Sec. 11.  The amendatory provisions of sections 1 and 4 to 9,

9-11  inclusive, of this act do not apply to offenses committed before October 1,

9-12  2001.

 

9-13  H