(REPRINTED WITH ADOPTED AMENDMENTS) SECOND REPRINT
Senate Bill No. 402-Senator Titus
May 19, 1997
____________
Referred to Committee on Judiciary
SUMMARY--Makes various changes concerning criminal justice system. (BDR 14-710)
FISCAL NOTE: Effect on Local Government: Yes.
Effect on the State or on Industrial Insurance: Yes.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to the criminal justice system; revising certain provisions concerning admitting a person to bail; revising certain provisions relating to conditions of probation; authorizing the state board of parole commissioners to impose certain conditions of parole; revising certain provisions relating to residential confinement; increasing the fee that parolees and probationers must pay to defray the cost of supervision; imposing such a fee on certain offenders in residential confinement; providing for the formation of multidisciplinary teams to review and investigate the death of a victim of domestic violence; providing penalties; 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 171.178 is hereby amended to read as follows:
171.178 1. Except as otherwise provided in subsections 5 and 6, a peace officer making an arrest under a warrant issued upon a complaint or without a warrant shall take the arrested person without unnecessary delay before the magistrate who issued the warrant or the nearest available magistrate empowered to commit persons charged with offenses against the laws of the State of Nevada.
2. A private person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available magistrate empowered to commit persons charged with offenses against the laws of the State of Nevada or deliver the arrested person to a peace officer.
3. If an arrested person is not brought before a magistrate within 72 hours after arrest, excluding nonjudicial days, the magistrate:
(a) Shall give the prosecuting attorney an opportunity to explain the circumstances leading to the delay; and
(b) May release the arrested person if he determines that the person was not brought before a magistrate without unnecessary delay.
4. When a person arrested without a warrant is brought before a magistrate, a complaint must be filed forthwith.
5. Except as otherwise provided in NRS 178.484 and 178.487, where the defendant can be admitted to bail without appearing personally before a magistrate, he must be so admitted with the least possible delay, and required to appear before a magistrate at the earliest convenient time thereafter.
6. A peace officer may immediately release from custody without any further proceedings any person he arrests without a warrant if the peace officer is satisfied that there are insufficient grounds for issuing a criminal complaint against the person arrested. Any record of the arrest of a person released pursuant to this subsection must also include a record of the release. A person so released shall be deemed not to have been arrested but only detained.
Sec. 2 NRS 176.1853 is hereby amended to read as follows:
176.1853 1. In issuing an order granting probation, the court may fix the terms and conditions thereof, including, without limitation [, a] :
(a) A requirement for restitution [or an] ;
(b) An order that the probationer dispose of all the weapons he possesses [.] ; or
(c) Any reasonable conditions to protect the health, safety or welfare of the community or to ensure that the probationer will appear at all times and places ordered by the court, including, without limitation:
(1) Requiring the probationer to remain in this state or a certain county within this state;
(2) Prohibiting the probationer from contacting or attempting to contact a specific person or from causing or attempting to cause another person to contact that person on his behalf;
(3) Prohibiting the probationer from entering a certain geographic area; or
(4) Prohibiting the probationer from engaging in specific conduct that may be harmful to his own health, safety or welfare, or the health, safety or welfare of another person.
2. In issuing an order granting probation to a person who is found guilty of a category C, D or E felony, the court may require the person as a condition of probation to participate in and complete to the satisfaction of the court any alternative program, treatment or activity deemed appropriate by the court.
3. The court shall not suspend the execution of a sentence of imprisonment after the defendant has begun to serve it.
4. In placing any defendant on probation or in granting a defendant a suspended sentence, the court shall direct that he be placed under the supervision of the chief parole and probation officer.
Sec. 3 NRS 178.484 is hereby amended to read as follows:
178.484 1. Except as otherwise provided in this section, a person arrested for an offense other than murder of the first degree must be admitted to bail.
2. A person arrested for a felony who has been released on probation or parole for a different offense must not be admitted to bail unless:
(a) A court issues an order directing that the person be admitted to bail;
(b) The state board of parole commissioners directs the detention facility to admit the person to bail; or
(c) The division of parole and probation of the department of motor vehicles and public safety directs the detention facility to admit the person to bail.
3. A person arrested for murder of the first degree may be admitted to bail unless the proof is evident or the presumption great by any competent court or magistrate authorized by law to do so in the exercise of discretion, giving due weight to the evidence and to the nature and circumstances of the offense.
4. A person arrested for a battery upon his spouse, former spouse, a person to whom he is related by blood, a person with whom he is or was actually residing or with whom he has a child in common, his minor child or a minor child of that person, must not be admitted to bail sooner than 12 hours after his arrest. If the person is admitted to bail more than 12 hours after his arrest, pursuant to subsection 5 of NRS 171.178, without appearing personally before a magistrate, the amount of bail must be:
(a) Three thousand dollars, if the person has no previous convictions of battery upon a person listed in this subsection and there is no reason to believe that the battery for which he has been arrested resulted in substantial bodily harm;
(b) Five thousand dollars, if the person has:
(1) No previous convictions of battery upon a person listed in this subsection, but there is reason to believe that the battery for which he has been arrested resulted in substantial bodily harm; or
(2) One previous conviction of battery upon a person listed in this subsection, but there is no reason to believe that the battery for which he has been arrested resulted in substantial bodily harm; or
(c) Fifteen thousand dollars, if the person has:
(1) One previous conviction of battery upon a person listed in this subsection and there is reason to believe that the battery for which he has been arrested resulted in substantial bodily harm; or
(2) Two or more previous convictions of battery upon one or more persons listed in this subsection.
The provisions of this subsection do not affect the authority of a magistrate or a court to set the amount of bail when the person personally appears before the magistrate or the court.
5. The court may, before releasing a person arrested for an offense punishable as a felony, require the surrender to the court of any passport the person possesses.
6. Before releasing a person arrested for any crime, the court may impose such reasonable conditions on the person as it deems necessary to protect the health, safety and welfare of the community and to ensure that the person will appear at all times and places ordered by the court, including, without limitation:
(a) Requiring the person to remain in this state or a certain county within this state;
(b) Prohibiting the person from contacting or attempting to contact a specific person or from causing or attempting to cause another person to contact that person on his behalf;
(c) Prohibiting the person from entering a certain geographic area; or
(d) Prohibiting the person from engaging in specific conduct that may be harmful to his own health, safety or welfare, or the health, safety or welfare of another person.
In determining whether a condition is reasonable, the court shall consider the factors listed in NRS 178.4853.
7. If a person fails to comply with a condition imposed pursuant to subsection 6, the court may, after providing the person with reasonable notice and an opportunity for a hearing:
(a) Deem such conduct a contempt pursuant to NRS 22.010; or
(b) Increase the amount of bail pursuant to NRS 178.499.
8. An order issued pursuant to this section that imposes a condition on a person admitted to bail must include a provision ordering any law enforcement officer to arrest the person if he has probable cause to believe that the person has violated a condition of his bail.
9. Before a person may be admitted to bail, he must sign a document stating that:
(a) He will appear at all times and places as ordered by the court releasing him and as ordered by any court before which the charge is subsequently heard;
(b) He will comply with the other conditions which have been imposed by the court and are stated in the document; and
(c) If he fails to appear when so ordered and is taken into custody outside of this state, he waives all his rights relating to extradition proceedings.
The signed document must be filed with the clerk of the court of competent jurisdiction as soon as practicable, but in no event later than the next business day.
10. If a person admitted to bail fails to appear as ordered by a court and the jurisdiction incurs any cost in returning the person to the jurisdiction to stand trial, the person who failed to appear is responsible for paying those costs as restitution.
Sec. 4 NRS 178.4851 is hereby amended to read as follows:
178.4851 1. Upon a showing of good cause, a court may release without bail any person entitled to bail if it appears to the court that it can impose conditions on the person that will adequately protect the health, safety and welfare of the community and ensure that he will appear at all times and places ordered by the court.
2. In releasing a person without bail the court may impose such conditions as it deems necessary to protect the health, safety and welfare of the community and to ensure that he will appear at all times and places ordered by the court [.] , including, without limitation, any condition set forth in subsection 6 of NRS 178.484.
3. Upon a showing of good cause, a sheriff or chief of police may release without bail any person charged with a misdemeanor pursuant to standards established by a court of competent jurisdiction.
4. Before [any] a person may be released without bail, he must file with the clerk of the court of competent jurisdiction a signed document stating that:
(a) He will appear at all times and places as ordered by the court releasing him and as ordered by any court before which the charge is subsequently heard;
(b) He will comply with the other conditions which have been imposed by the court and are stated in the document;
(c) If he fails to appear when so ordered and is taken into custody outside of this state, he waives all his rights relating to extradition proceedings; and
(d) He understands that any court of competent jurisdiction may revoke the order of release without bail and may order him into custody or require him to furnish bail or otherwise ensure the protection of the health, safety and welfare of the community or his appearance.
5. If a jurisdiction incurs any costs in returning a person to the jurisdiction to stand trial, the person failing to appear is responsible for paying those costs as restitution.
6. An order issued pursuant to this section that imposes a condition on a person who is released without bail must include a provision ordering a law enforcement officer to arrest the person if he has probable cause to believe that the person has violated a condition of his release.
Sec. 5 NRS 178.4853 is hereby amended to read as follows:
178.4853 In deciding whether there is good cause to release a person without bail, the court as a minimum shall consider the following factors concerning the person:
1. The length of his residence in the community;
2. The status and history of his employment;
3. His relationships with his spouse and children, parents or other members of his family and with his close friends;
4. His reputation, character and mental condition;
5. His prior criminal record, including , without limitation, any record of his appearing or failing to appear after release on bail or without bail;
6. The identity of responsible members of the community who would vouch for the [defendant's reliability;] reliability of the person;
7. The nature of the offense with which he is charged, the apparent probability of conviction and the likely sentence, insofar as these factors relate to the risk of his not appearing;
8. The nature and seriousness of the danger to the alleged victim, any other person or the community that would be posed by the person's release;
9. The likelihood of more criminal activity by [the person] him after he is released; and
10. Any other factors concerning his ties to the community or bearing on the risk that he may willfully fail to appear.
Sec. 6 NRS 4.3762 is hereby amended to read as follows:
4.3762 1. In lieu of imposing any punishment other than a minimum sentence mandated by statute, a justice of the peace may sentence a person convicted of a misdemeanor to a term of residential confinement. In making this determination, the justice of the peace shall consider the criminal record of the defendant and the seriousness of the crime committed.
2. In sentencing a convicted person to a term of residential confinement, the justice of the peace shall:
(a) Require the defendant to be confined to his residence during the time he is away from his employment, public service or other activity authorized by the justice of the peace; and
(b) Require intensive supervision of the convicted person, including , but not limited to, electronic surveillance and unannounced visits to his residence or other locations where he is expected to be to determine whether he is complying with the terms of his sentence.
3. An electronic device [approved by the division of parole and probation of the department of motor vehicles and public safety] may be used to supervise a convicted person sentenced to a term of residential confinement. The device must be minimally intrusive and limited in capability to recording or transmitting information concerning the [person's] presence of the person at his residence, including, but not limited to, the transmission of still visual images which do not concern the [person's] activities of the person while inside his residence. A device which is capable of recording or transmitting:
(a) Oral or wire communications or any auditory sound; or
(b) Information concerning the [person's] activities of the person while inside his residence,
must not be used.
4. A term of residential confinement, together with the term of any minimum sentence mandated by statute, may not exceed the maximum sentence which otherwise could have been imposed for the offense.
Sec. 7 NRS 5.076 is hereby amended to read as follows:
5.076 1. In lieu of imposing any punishment other than a minimum sentence mandated by statute, a municipal judge may sentence a person convicted of a misdemeanor to a term of residential confinement. In making this determination, the municipal judge shall consider the criminal record of the defendant and the seriousness of the crime committed.
2. In sentencing a convicted person to a term of residential confinement, the municipal judge shall:
(a) Require the defendant to be confined to his residence during the time he is away from his employment, public service or other activity authorized by the municipal judge; and
(b) Require intensive supervision of the convicted person, including , but not limited to, electronic surveillance and unannounced visits to his residence or other locations where he is expected to be in order to determine whether he is complying with the terms of his sentence.
3. An electronic device [approved by the division of parole and probation of the department of motor vehicles and public safety] may be used to supervise a convicted person sentenced to a term of residential confinement. The device must be minimally intrusive and limited in capability to recording or transmitting information concerning the [person's] presence of the person at his residence, including, but not limited to, the transmission of still visual images which do not concern the [person's] activities of the person while inside his residence. A device which is capable of recording or transmitting:
(a) Oral or wire communications or any auditory sound; or
(b) Information concerning the [person's] activities of the person while inside his residence,
must not be used.
4. A term of residential confinement, together with the term of any minimum sentence mandated by statute, may not exceed the maximum sentence which otherwise could have been imposed for the offense.
Sec. 8 Chapter 213 of NRS is hereby amended by adding thereto a new section to read as follows:
The board may, as a condition of releasing a prisoner on parole, impose any reasonable conditions on the parolee to protect the health, safety and welfare of the community, including, without limitation:
1. Requiring the parolee to remain in this state or a certain county within this state;
2. Prohibiting the parolee from contacting or attempting to contact a specific person or from causing or attempting to cause another person to contact that person on his behalf;
3. Prohibiting the parolee from entering a certain geographic area; and
4. Prohibiting the parolee from engaging in specific conduct that may be harmful to his own health, safety or welfare, or the health, safety or welfare of another person.
Sec. 9 NRS 213.107 is hereby amended to read as follows:
213.107 As used in NRS 213.107 to 213.157, inclusive, [and] section 1 of [this act,] Assembly Bill No. 240 of this session and section 8 of this act, unless the context otherwise requires:
1. "Board" means the state board of parole commissioners.
2. "Chief " means the chief parole and probation officer.
3. "Division" means the division of parole and probation of the department of motor vehicles and public safety.
4. "Residential confinement" means the confinement of a person convicted of a crime to his place of residence under the terms and conditions established by the board.
5. "Sex offender" means any person who has been or is convicted of a sexual offense.
6. "Sexual offense" means:
(a) A violation of NRS 200.366, subsection 4 of NRS 200.400, NRS 200.710, 200.720, subsection 2 of NRS 200.730, NRS 201.180, paragraph (a) or subparagraph (2) of paragraph (b) of subsection 1 of NRS 201.195, NRS 201.230 or 201.450;
(b) An attempt to commit any offense listed in paragraph (a); or
(c) An act of murder in the first or second degree, kidnaping in the first or second degree, false imprisonment, burglary or invasion of the home if the act is determined to be sexually motivated at a hearing conducted pursuant to NRS 175.547.
7. "Standards" means the objective standards for granting or revoking parole or probation which are adopted by the board or the chief.
Sec. 10 NRS 213.1076 is hereby amended to read as follows:
213.1076 1. The division shall:
(a) Except as otherwise provided in this section, charge each parolee , [or] probationer or person supervised by the division through residential confinement a fee to defray the cost of his supervision.
(b) Adopt by regulation a schedule of fees to defray the costs of supervision of a parolee [or probationer.] , probationer or person supervised by the division through residential confinement. The regulation must provide for a monthly fee of at least [$12.] $30.
2. The chief may waive the fee to defray the cost of supervision, in whole or in part, if he determines that payment of the fee would create an economic hardship on the parolee [or probationer.] , probationer or person supervised by the division through residential confinement.
3. Unless waived pursuant to subsection 2, the payment by a parolee , [or] probationer or person supervised by the division through residential confinement of a fee charged pursuant to subsection 1 is a condition of his parole [or probation.] , probation or residential confinement.
Sec. 11 Chapter 217 of NRS is hereby amended by adding thereto a new section to read as follows:
1. An agency that provides protective services:
(a) May organize one or more multidisciplinary teams to review the death of the victim of a crime that constitutes domestic violence pursuant to NRS 33.018; and
(b) Shall organize one or more multidisciplinary teams to review the death of such a victim upon receiving a written request from a person related to the victim within the third degree of consanguinity, if the request is received by the agency within 1 year after the date of death of the victim.
2. Members of a team organized pursuant to subsection 1 serve at the pleasure of the agency and must include representatives of organizations concerned with law enforcement or issues related to physical or mental health.
3. Each organization represented on such a team may share with other members of the team information in its possession concerning the victim who is the subject of the review or any person who was in contact with the victim and any other information deemed by the organization to be pertinent to the review.
4. Before establishing a team to review the death of a victim pursuant to this section, an agency shall adopt a written protocol describing its objectives and the structure of the team.
5. Each member of a team organized pursuant to this section is immune from civil or criminal liability for an activity related to the review of the death of a victim.
6. The results of the review of the death of a victim pursuant to this section are not admissible in any civil action or proceeding.
7. For the purposes of this section, "agency that provides protective services" means an agency that provides services to prevent and remedy domestic violence which may include, without limitation, investigating, evaluating, counseling, and arranging for and referring a person to other services and assistance.
Sec. 12 NRS 217.400 is hereby amended to read as follows:
217.400 As used in NRS 217.400 to 217.460, inclusive [:] , and section 11 of this act:
1. "Division" means the division of child and family services of the department of human resources.
2. "Domestic violence" means:
(a) The attempt to cause or the causing of bodily injury to a family or household member or the placing of the member in fear of imminent physical harm by threat of force.
(b) Any of the following acts committed by a person against a family or household member, a person with whom he had or is having a dating relationship or with whom he has a child in common, or upon his minor child or a minor child of that person:
(1) A battery.
(2) An assault.
(3) Compelling the other by force or threat of force to perform an act from which he has the right to refrain or to refrain from an act which he has the right to perform.
(4) A sexual assault.
(5) A knowing, purposeful or reckless course of conduct intended to harass the other. Such conduct may include, [but is not limited to:] without limitation:
(I) Stalking.
(II) Arson.
(III) Trespassing.
(IV) Larceny.
(V) Destruction of private property.
(VI) Carrying a concealed weapon without a permit.
(6) False imprisonment.
(7) Unlawful entry of the other's residence, or forcible entry against the other's will if there is a reasonably foreseeable risk of harm to the other from the entry.
3. "Family or household member" means a spouse, a former spouse, a parent or other adult person who is related by blood or marriage or is or was actually residing with the person committing the act of domestic violence.
4. "Victim of domestic violence" includes the dependent children of the victim.
Sec. 13. The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
Sec. 14. 1. The amendatory provisions of sections 1, 3, 4 and 5 of this act do not apply to a person who is admitted to bail before October 1, 1997.
2. The amendatory provisions of section 2 of this act do not apply to an offender who is granted probation before October 1, 1997.
3. The amendatory provisions of section 8 of this act do not apply to an offender who is released on parole before October 1, 1997.
Sec. 15. Section 9 of this act becomes effective at 12:01 a.m. on October 1, 1997.