Assembly Bill No. 139-Committee on Judiciary

February 5, 1997
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Referred to Committee on Judiciary

SUMMARY--Expands circumstances under which proceedings and sentences for persons convicted of certain offenses concerning controlled substances may be suspended or reduced. (BDR 40-900)

FISCAL NOTE: Effect on Local Government: No.
Effect on the State or on Industrial Insurance: No.

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

AN ACT relating to controlled substances; expanding the circumstances under which a court may suspend proceedings when a person is accused of committing a certain offense concerning the possession of a controlled substance on probation and require the person to participate in an educational program or a program of treatment and rehabilitation; authorizing courts to reduce or suspend the sentence of a person convicted of possessing a controlled substance for the purpose of sale if he assists in the identification, arrest or conviction of certain other persons; and providing other matters properly relating thereto.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1 NRS 453.3363 is hereby amended to read as follows:
453.3363 1. If a person [who has not previously been convicted of any offense under NRS 453.011 to 453.552, inclusive, or under any statute of the United States or of any state relating to narcotic drugs, marihuana, or stimulant, depressant or hallucinogenic substances tenders] enters a plea of guilty, guilty but mentally ill, nolo contendere or similar plea to a charge [under] pursuant to NRS 453.336, 453.337, 453.338, 453.411 or 454.351, or is found guilty of one of those charges, the court, without entering a judgment of conviction and with the consent of the accused, may suspend further proceedings and place him on probation upon terms and conditions that must include attendance and successful completion of an educational program or, in the case of a person who is dependent upon drugs, attendance and successful completion of a program of treatment and rehabilitation pursuant to NRS 453.580.
2. Upon violation of a term or condition, the court may enter a judgment of conviction and proceed as provided in the section [under] pursuant to which the accused was charged. Upon fulfillment of the terms and conditions, the court shall discharge the accused and dismiss the proceedings against him. A nonpublic record of the dismissal must be transmitted to and retained by the division of parole and probation of the department of motor vehicles and public safety solely for the use of the courts in determining whether, in later proceedings, the person qualifies under this section.
3. Except as otherwise provided in subsection 4, discharge and dismissal [under] pursuant to this section is without adjudication of guilt and is not a conviction for purposes of this section or for purposes of employment, civil rights or [any] a statute or regulation or license or questionnaire or for any other public or private purpose, but is a conviction for the purpose of additional penalties imposed for second or subsequent convictions or the setting of bail. Discharge and dismissal restores the person discharged, in the contemplation of the law, to the status occupied before the arrest, indictment or information. He may not be held thereafter [under] pursuant to any law to be guilty of perjury or otherwise giving a false statement by reason of failure to recite or acknowledge that arrest, indictment, information or trial in response to an inquiry made of him for any purpose. Discharge and dismissal under this section may occur only once with respect to [any] a person.
4. A professional licensing board may consider a proceeding [under] pursuant to this section in determining suitability for a license or liability to discipline for misconduct. Such a board is entitled for those purposes to a truthful answer from the applicant or licensee concerning any such proceeding with respect to him.
Sec. 2 NRS 453.337 is hereby amended to read as follows:
453.337 1. Except as [authorized by the provisions of] otherwise provided pursuant to NRS 453.011 to 453.552, inclusive, it is unlawful for a person to possess for the purpose of sale [any] a controlled substance classified in schedule I or II.
2. Unless a greater penalty is provided in NRS 453.3385, 453.339 or 453.3395, a person who violates this section shall be punished:
(a) For the first offense, for a category D felony as provided in NRS 193.130.
(b) For a second offense, or if, in the case of a first conviction of violating this section, the offender has previously been convicted of a felony under the Uniform Controlled Substances Act or of an offense under the laws of the United States or [any] a state, territory or district which, if committed in this state, would amount to a felony under the Uniform Controlled Substances Act, for a category C felony as provided in NRS 193.130.
(c) For a third or subsequent offense, or if the offender has previously been convicted two or more times of a felony under the Uniform Controlled Substances Act or of [any] an offense under the laws of the United States or [any] a state, territory or district which, if committed in this state, would amount to a felony under the Uniform Controlled Substances Act, for a category B felony by imprisonment in the state prison for a minimum term of not less than 3 years and a maximum term of not more than 15 years, and may be further punished by a fine of not more than $20,000 for each offense.
3. [The] Except as otherwise provided pursuant to NRS 453.3363 and 453.3405, the court shall not grant probation to or suspend the sentence of a person convicted of violating this section and punishable pursuant to paragraph (b) or (c) of subsection 2.
Sec. 3 NRS 453.338 is hereby amended to read as follows:
453.338 1. Except as [authorized by the provisions of] otherwise provided pursuant to NRS 453.011 to 453.552, inclusive, it is unlawful for a person to possess for the purpose of sale [any] a controlled substance classified in schedule III, IV or V.
2. A person who violates this section shall be punished:
(a) For the first and second offense, for a category D felony as provided in NRS 193.130, and may be further punished by a fine of not more than $10,000.
(b) For a third or subsequent offense, or if the offender has been previously convicted two or more times of a felony under the Uniform Controlled Substances Act or of [any] an offense under the laws of the United States or [any] a state, territory or district which, if committed in this state, would amount to a felony under the Uniform Controlled Substances Act, for a category C felony as provided in NRS 193.130.
3. [The] Except as otherwise provided pursuant to NRS 453.3363 and 453.3405, the court shall not grant probation to or suspend the sentence of a person convicted of violating this section and punishable under paragraph (b) of subsection 2.
Sec. 4 NRS 453.3405 is hereby amended to read as follows:
453.3405 1. Except as otherwise provided in subsection 2, the adjudication of guilt and imposition of a sentence of a person found guilty of trafficking in a controlled substance in violation of NRS 453.3385, 453.339 or 453.3395 must not be suspended and the person is not eligible for parole until he has actually served the mandatory minimum term of imprisonment prescribed by the section under which he was convicted.
2. The judge, upon an appropriate motion, may reduce or suspend the sentence of [any] a person convicted of violating any of the provisions of NRS 453.3385, 453.339 or 453.3395 if he finds that the convicted person rendered substantial assistance in the identification, arrest or conviction of any of his accomplices, accessories, coconspirators or principals or of any other person involved in the possession for the purpose of sale of a controlled substance in violation of NRS 453.337 or 453.338, or in trafficking in a controlled substance in violation of NRS 453.3385, 453.339 or 453.3395. The arresting agency must be given an opportunity to be heard before the motion is granted. Upon good cause shown, the motion may be heard in camera.
Sec. 5 The amendatory provisions of this act do not apply to offenses that are committed before October 1, 1997.

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