Senate Bill No. 398–Committee on Judiciary

 

(On Behalf of the Nevada Supreme Court)

 

March 21, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes various changes to provisions concerning certain protective orders. (BDR 3‑611)

 

FISCAL NOTE:    Effect on Local Government: Yes.

                             Effect on the State: Yes.

 

~

 

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

 

AN ACT relating to protective orders; providing for the sealing of records relating to temporary and extended orders for protection against domestic violence, harassment in the workplace and stalking; revising the penalties for violation of certain temporary and extended orders; 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 33 of NRS is hereby amended by adding

1-2  thereto the provisions set forth as sections 2 and 3 of this act.

1-3  Sec. 2.  1.  Five years after the date of the expiration or

1-4  rescission of a temporary or extended order issued pursuant to

1-5  NRS 33.020 or 33.270, the adverse party to the order may petition

1-6  the court in which the order was obtained to seal all records

1-7  relating to the order.

1-8  2.  A petition filed pursuant to subsection 1 must:

1-9  (a) Be accompanied by current, verified records of the

1-10  criminal history of the petitioner from:

1-11          (1) The Central Repository for Nevada Records of Criminal

1-12  History; and

1-13          (2) The local law enforcement agency of the city or county

1-14  in which the order for protection was obtained;

2-1  (b) Include a list of any other public or private agency,

2-2  company, official or other custodian of records that is reasonably

2-3  known to the petitioner to have possession of records of the

2-4  temporary or extended order and to whom the order to seal

2-5  records, if issued, will be directed; and

2-6  (c) Include information that, to the best knowledge and belief

2-7  of the petitioner, accurately and completely identifies the records

2-8  to be sealed.

2-9  3.  Upon receiving a petition pursuant to this section, the

2-10  court shall notify the prosecuting attorney for the county in which

2-11  the temporary or extended order was obtained. The prosecuting

2-12  attorney and any person having relevant evidence may testify and

2-13  present evidence at the hearing on the petition.

2-14      4.  If the court finds during the hearing that, during the

2-15  5-year period prescribed in subsection 1, the petitioner has not

2-16  been charged with any offense that is pending or convicted of any

2-17  offense, except for minor traffic violations, the court may order

2-18  sealed all records of the temporary or extended order which are in

2-19  the custody of the court, of another court in this state or of a

2-20  public or private agency, company or official in this state.

2-21      Sec. 3.  1.  If the court orders sealed a record pursuant to

2-22  section 2 of this act, a copy of the order to seal records must be

2-23  sent to:

2-24      (a) The Central Repository for Nevada Records of Criminal

2-25  History; and

2-26      (b) Each public or private agency, company or official named

2-27  in the order to seal records.

2-28      2.  Each public or private agency, company or official

2-29  receiving a copy of an order to seal records shall:

2-30      (a) Seal the records in its custody as directed by the order to

2-31  seal records;

2-32      (b) Advise the court of compliance with the order to seal

2-33  records; and

2-34      (c) Seal the copy of the order to seal records.

2-35      Sec. 4.  NRS 33.100 is hereby amended to read as follows:

2-36      33.100  1.  A person who intentionally violates [a temporary

2-37  or extended] :

2-38      (a) A temporary order is guilty of a gross misdemeanor[,] ; or

2-39      (b) An extended order is guilty of a category C felony and shall

2-40  be punished as provided in NRS 193.130,

2-41  unless a more severe penalty is prescribed by law for the act that

2-42  constitutes the violation of the order. [If the violation is

2-43  accompanied by a violent physical act by the adverse party against a

2-44  person protected by the order, the court shall:

3-1  (a) Impose upon the adverse party a fine of $1,000 or require

3-2  him to perform a minimum of 200 hours of community service;

3-3  (b) Sentence him to imprisonment for not fewer than 5 days nor

3-4  more than 6 months;

3-5  (c) Order him to reimburse]

3-6  2.  The court shall, in addition to any other penalty, order a

3-7  person who intentionally violated a temporary or extended order

3-8  to:

3-9  (a) Reimburse the applicant, in an amount determined by the

3-10  court, for all costs and attorney’s fees incurred by the applicant in

3-11  seeking to enforce the temporary or extended order[,] and for [all]

3-12  any medical expenses of the applicant and any minor child incurred

3-13  as a result of [the] any violent physical act; and

3-14      [(d) Order him to participate]

3-15      (b) Participate in and complete a program of professional

3-16  counseling, at his own expense, if such counseling is available.

3-17      [2.] 3. The adverse party shall comply with the order for

3-18  reimbursement of the applicant before paying a fine imposed

3-19  pursuant to this section.

3-20      Sec. 5.  NRS 33.270 is hereby amended to read as follows:

3-21      33.270 1.  The court may issue a temporary order for

3-22  protection against harassment in the workplace if it appears to the

3-23  satisfaction of the court from specific facts shown by a verified

3-24  application filed pursuant to NRS 33.250 that harassment in the

3-25  workplace has occurred.

3-26      2.  Except as otherwise provided in subsection 4, a temporary

3-27  order for protection against harassment in the workplace must not be

3-28  issued without notice to the person who allegedly committed the

3-29  harassment. A temporary order for protection against harassment in

3-30  the workplace must not be issued without the giving of security by

3-31  the employer in an amount determined by the court to be sufficient

3-32  to pay for such costs and damages as may be incurred or suffered by

3-33  the person who allegedly committed the harassment if the person

3-34  who allegedly committed the harassment is found to have been

3-35  wrongfully enjoined or restrained.

3-36      3.  The court may require the employer or the person who

3-37  allegedly committed the harassment, or both, to appear before the

3-38  court before determining whether to issue the temporary order for

3-39  protection against harassment in the workplace.

3-40      4.  A court may issue a temporary order for protection against

3-41  harassment in the workplace without written or oral notice to the

3-42  person who allegedly committed the harassment or his attorney only

3-43  if:

3-44      (a) A verified application is accompanied by an affidavit that

3-45  contains specific facts which clearly show that immediate and

4-1  irreparable injury, loss or damage will result to the employer, an

4-2  employee of the employer while the employee performs the duties

4-3  of his employment or a person who is present at the workplace of

4-4  the employer before the person who allegedly committed the

4-5  harassment or his attorney can be heard in opposition; and

4-6  (b) The employer and the employer’s attorney, if any, set forth

4-7  in the affidavit:

4-8       (1) The efforts, if any, that have been made to give notice to

4-9  the person who allegedly committed the harassment; and

4-10          (2) The facts supporting waiver of notice requirements.

4-11      5.  A temporary order for protection against harassment in the

4-12  workplace that is granted, with or without notice, must expire not

4-13  later than 15 days after the date on which the order is issued, unless

4-14  extended pursuant to subsections 6 and 7.

4-15      6.  If a temporary order for protection against harassment in the

4-16  workplace is granted, with or without notice, the employer or his

4-17  authorized agent may apply for an extended order for protection

4-18  against harassment in the workplace by filing a verified application

4-19  for an extended order for protection against harassment in the

4-20  workplace. [Such] If such an application is filed, the temporary

4-21  order remains in effect until the hearing on the application for an

4-22  extended order is held. The application must:

4-23      (a) In addition to the information required by subsection 2 of

4-24  NRS 33.250, set forth the facts that provide the basis for granting an

4-25  extended order for protection against harassment in the workplace;

4-26      (b) Be filed before the expiration of the temporary order for

4-27  protection against harassment in the workplace;

4-28      (c) Be heard as soon as reasonably possible and not later than 10

4-29  days after the date on which the application is filed with the court

4-30  unless the court determines that there are compelling reasons to hold

4-31  the hearing at a later date; and

4-32      (d) Be dismissed if the court finds that the temporary order for

4-33  protection against harassment in the workplace which is the basis of

4-34  the application has been dissolved or has expired.

4-35      7.  At the hearing on an application filed pursuant to subsection

4-36  6, the employer must present evidence sufficient to support the

4-37  granting of the application for an extended order for protection

4-38  against harassment in the workplace. At the hearing, the court may:

4-39      (a) Dissolve or modify the temporary order for protection

4-40  against harassment in the workplace; or

4-41      (b) Grant an extended order for protection against harassment in

4-42  the workplace.

4-43      8.  If granted, an extended order for protection against

4-44  harassment in the workplace expires within such time, not to exceed

4-45  1 year, as the court fixes.

5-1  9.  Upon 2 days’ notice to an employer who obtained a

5-2  temporary order for protection against harassment in the workplace

5-3  without notice or on such shorter notice to the employer as the court

5-4  may prescribe, the person who allegedly committed the harassment

5-5  may appear and move the dissolution or modification of the

5-6  temporary order for protection against harassment in the workplace.

5-7  Upon the filing of such a motion, the court shall proceed to hear and

5-8  determine the motion as expeditiously as the ends of justice require.

5-9  At the hearing, the court may dissolve, modify or extend the order.

5-10      10.  The court may award costs and reasonable attorney’s fees

5-11  to the prevailing party in a matter brought pursuant to this section.

5-12      11.  If a court issues an extended order for protection against

5-13  harassment in the workplace, an interlocutory appeal lies to the

5-14  district court, which may affirm, modify or vacate the order in

5-15  question. The appeal may be taken without bond, but its taking does

5-16  not stay the effect or enforcement of the order.

5-17      Sec. 6.  NRS 33.350 is hereby amended to read as follows:

5-18      33.350  1.  A person who intentionally violates [a temporary

5-19  or extended] :

5-20      (a) A temporary order for protection against harassment in the

5-21  workplace is guilty of a gross misdemeanor[,] ; or

5-22      (b) An extended order for protection against harassment in the

5-23  workplace is guilty of a category C felony and shall be punished as

5-24  provided in NRS 193.130,

5-25  unless a more severe penalty is prescribed by law for the act that

5-26  constitutes the violation of the order. [If the violation is

5-27  accompanied by a violent physical act by that person against a

5-28  person protected by the order, the court shall:

5-29      (a) Impose upon the person who violated the order a fine of

5-30  $1,000 or require him to perform a minimum of 200 hours of

5-31  community service;

5-32      (b) Sentence the person who violated the order to imprisonment

5-33  for not fewer than 5 days nor more than 6 months;

5-34      (c) Order]

5-35      2.  The court shall, in addition to any other penalty, order the

5-36  person who intentionally violated the order to [reimburse] :

5-37      (a) Reimburse the employer, in an amount determined by the

5-38  court, for all costs and attorney’s fees incurred by the employer in

5-39  seeking to enforce the order[,] and for [all] any medical expenses of

5-40  the employer and any person protected by the order that were

5-41  incurred as a result of [the] any violent physical act; and

5-42      [(d) Order the person who violated the order to participate]

5-43      (b) Participate in and complete a program of professional

5-44  counseling, at his own expense, if such counseling is available.

6-1  [2.] 3. The person who intentionally violates a temporary or

6-2  extended order for protection against harassment in the workplace

6-3  shall comply with the order for reimbursement of the employer or

6-4  any other person protected by the order before paying a fine

6-5  imposed pursuant to this section.

6-6  Sec. 7.  NRS 125.555 is hereby amended to read as follows:

6-7  125.555  1.  A restraining order or injunction that is in the

6-8  nature of a temporary or extended order for protection against

6-9  domestic violence which is issued in an action or proceeding

6-10  brought pursuant to this title must provide notice that a person who

6-11  is arrested for violating the order or injunction will not be admitted

6-12  to bail sooner than 12 hours after his arrest if the arresting officer

6-13  determines that such a violation is accompanied by a direct or

6-14  indirect threat of harm.

6-15      2.  Five years after the date of the expiration or rescission of

6-16  such a restraining order or injunction, the adverse party to the

6-17  order or injunction may petition the court in which the order or

6-18  injunction was obtained to seal all records relating to the order or

6-19  injunction. Such records may be sealed in the manner set forth in

6-20  sections 2 and 3 of this act for the sealing of records relating to a

6-21  temporary or extended order for protection against domestic

6-22  violence or against harassment in the workplace.

6-23      3.  For the purposes of this section, an order or injunction is in

6-24  the nature of a temporary or extended order for protection against

6-25  domestic violence if it grants relief that might be given in a

6-26  temporary or extended order issued pursuant to NRS 33.017 to

6-27  33.100, inclusive.

6-28      Sec. 8.  NRS 125.560 is hereby amended to read as follows:

6-29      125.560  1.  A person who intentionally violates a restraining

6-30  order or injunction[:

6-31      (a) That is in the nature of a temporary or extended order for

6-32  protection against domestic violence; and

6-33      (b) That] that is issued in an action or proceeding brought

6-34  pursuant to this title[,] and that is in the nature of:

6-35      (a) A temporary order for protection against domestic violence

6-36  is guilty of a gross misdemeanor[,] ; or

6-37      (b) An extended order for protection against domestic violence

6-38  is guilty of a category C felony and shall be punished as provided

6-39  in NRS 193.130,

6-40  unless a more severe penalty is prescribed by law for the act that

6-41  constitutes the violation of the order or injunction. [For the purposes

6-42  of this subsection, an order or injunction is in the nature of a

6-43  temporary or extended order for protection against domestic

6-44  violence if it grants relief that might be given in a temporary or

6-45  extended order issued pursuant to NRS 33.017 to 33.100, inclusive.

7-1  2.  If the violation is accompanied by a violent physical act

7-2  against a person protected by the order or injunction, the court shall:

7-3  (a) Impose upon the person committing the act a fine of $1,000

7-4  or require him to perform a minimum of 200 hours of community

7-5  service;

7-6  (b) Sentence him to imprisonment for not fewer than 5 days nor

7-7  more than 6 months;

7-8  (c) Order him to reimburse]

7-9  2.  The court shall, in addition to any other penalty, order the

7-10  person who intentionally violated the restraining order or

7-11  injunction to:

7-12      (a) Reimburse the person [obtaining] to whom the order or

7-13  injunction[,] was issued, in an amount determined by the court, for

7-14  all costs and attorney’s fees incurred by that person in seeking to

7-15  enforce the order or injunction[,] and for [all] any medical expenses

7-16  of the person and any minor child incurred as a result of [the] any

7-17  violent physical act; and

7-18      [(d) Order him to participate]

7-19      (b) Participate in and complete a program of professional

7-20  counseling, at his own expense, if such counseling is available.

7-21      3.  The person committing the violation shall comply with the

7-22  order for reimbursement of the person obtaining the order or

7-23  injunction before paying any fine imposed pursuant to this section.

7-24      4.  For the purposes of this section, an order or injunction is

7-25  in the nature of a temporary or extended order for protection

7-26  against domestic violence if it grants relief that might be given in a

7-27  temporary or extended order issued pursuant to NRS 33.017 to

7-28  33.100, inclusive.

7-29      Sec. 9.  NRS 171.136 is hereby amended to read as follows:

7-30      171.136  1.  If the offense charged is a felony or gross

7-31  misdemeanor, the arrest may be made on any day, and at any time of

7-32  day or night.

7-33      2.  If it is a misdemeanor, the arrest cannot be made between

7-34  the hours of 7 p.m. and 7 a.m., except:

7-35      (a) Upon the direction of a magistrate, endorsed upon the

7-36  warrant;

7-37      (b) When the offense is committed in the presence of the

7-38  arresting officer;

7-39      (c) When the person is found and the arrest is made in a public

7-40  place or a place that is open to the public and:

7-41          (1) There is a warrant of arrest against the person; and

7-42          (2) The misdemeanor is discovered because there was

7-43  probable cause for the arresting officer to stop, detain or arrest the

7-44  person for another alleged violation or offense;

8-1  (d) When the offense is committed in the presence of a private

8-2  person and he makes an arrest immediately after the offense is

8-3  committed;

8-4  (e) When the offense charged is battery that constitutes domestic

8-5  violence pursuant to NRS 33.018 and the arrest is made in the

8-6  manner provided in NRS 171.137;

8-7  (f) [When the offense charged is a violation of a temporary or

8-8  extended order for protection against domestic violence issued

8-9  pursuant to NRS 33.017 to 33.100, inclusive;

8-10      (g)] When the person is already in custody as a result of another

8-11  lawful arrest; or

8-12      [(h)] (g) When the person voluntarily surrenders himself in

8-13  response to an outstanding warrant of arrest.

8-14      Sec. 10.  Chapter 200 of NRS is hereby amended by adding

8-15  thereto a new section to read as follows:

8-16      Five years after the date of the expiration or rescission of a

8-17  temporary or extended order issued pursuant to NRS 200.591, the

8-18  adverse party to the order may petition the court in which the

8-19  order was obtained to seal all records relating to the order. Such

8-20  records may be sealed in the manner set forth in sections 2 and 3

8-21  of this act for the sealing of records relating to a temporary or

8-22  extended order for protection against domestic violence or against

8-23  harassment in the workplace.

8-24      Sec. 11.  NRS 200.591 is hereby amended to read as follows:

8-25      200.591  1.  A person who reasonably believes that the crime

8-26  of stalking, aggravated stalking or harassment is being committed

8-27  against him by another person may petition any court of competent

8-28  jurisdiction for a temporary or extended order directing the person

8-29  who is allegedly committing the crime to:

8-30      (a) Stay away from the home, school, business or place of

8-31  employment of the victim of the alleged crime and any other

8-32  location specifically named by the court.

8-33      (b) Refrain from contacting, intimidating, threatening or

8-34  otherwise interfering with the victim of the alleged crime and any

8-35  other person[, including] named in the order who may include,

8-36  without limitation, a member of the family or the household of the

8-37  victim[, specifically named by the court.] of the alleged crime.

8-38      (c) Comply with any other restriction which the court deems

8-39  necessary to protect the victim of the alleged crime or to protect

8-40  any other person named in the order, who may include, without

8-41  limitation, a member of the family or the household of the victim

8-42  of the alleged crime.

8-43      2.  If a defendant charged with a crime involving harassment,

8-44  stalking or aggravated stalking is released from custody before trial

8-45  or is found guilty at the trial, the court may issue a temporary or

9-1  extended order or provide as a condition of the release or sentence

9-2  that the defendant:

9-3  (a) Stay away from the home, school, business or place of

9-4  employment of the victim of the alleged crime and any other

9-5  location specifically named by the court.

9-6  (b) Refrain from contacting, intimidating, threatening or

9-7  otherwise interfering with the victim of the alleged crime and any

9-8  other person[, including] named in the order who may include,

9-9  without limitation, a member of the family or the household of the

9-10  victim[, specifically named by the court.] of the alleged crime.

9-11      (c) Comply with any other restriction which the court deems

9-12  necessary to protect the victim of the alleged crime or to protect

9-13  any other person named in the order, who may include, without

9-14  limitation, a member of the family or the household of the victim

9-15  of the alleged crime.

9-16      3.  A temporary order may be granted with or without notice to

9-17  the adverse party. An extended order may be granted only after

9-18  notice to the adverse party and a hearing on the petition.

9-19      4.  If an extended order is issued by a justice’s court, an

9-20  interlocutory appeal lies to the district court, which may affirm,

9-21  modify or vacate the order in question. The appeal may be taken

9-22  without bond, but its taking does not stay the effect or enforcement

9-23  of the order.

9-24      5.  Any person who intentionally violates:

9-25      (a) A temporary order is guilty of a gross misdemeanor[.] ; or

9-26      (b) An extended order is guilty of a category C felony and shall

9-27  be punished as provided in NRS 193.130[.] ,

9-28  unless a more severe penalty is prescribed by the law for the act

9-29  that constitutes the violation of the order.

9-30      6.  The court shall, in addition to any other penalty, order the

9-31  person who intentionally violated the temporary or extended order

9-32  to:

9-33      (a) Reimburse the victim, in an amount determined by the

9-34  court, for all costs and attorney’s fees incurred by the victim in

9-35  seeking to enforce the order and for any medical expenses of the

9-36  victim and any person protected by the order that were incurred as

9-37  a result of any violent physical act; and

9-38      (b) Participate in and complete a program of professional

9-39  counseling, at his own expense, if such counseling is available.

9-40      7.  The adverse party shall comply with the order for

9-41  reimbursement of the victim and any other person protected by the

9-42  order before paying a fine imposed pursuant to this section.

9-43      8.  Any court order issued pursuant to this section must:

9-44      (a) Be in writing;

10-1      (b) Be personally served on the person to whom it is directed;

10-2  and

10-3      (c) Contain the warning that violation of the order:

10-4          (1) Subjects the person to immediate arrest.

10-5          (2) Is a gross misdemeanor if the order is a temporary order.

10-6          (3) Is a category C felony if the order is an extended order.

 

10-7  H