By Henry Sotelo Esq. & Rachael L. Chavez
As a criminal attorney, I often get questions about criminal histories and how to get criminal records sealed or expunged. This has become especially true in light of the recent decriminalization trend regarding cannabis.
First, let’s explain what it means to “seal your criminal record”.
Sealing your records only removes them from public access, it does not “expunge”, or erase your records. Most law enforcement agencies will be able to access your sealed records. The good news is that when you get your records sealed, you can answer any job application question regarding previous criminal records as if you do not have a criminal record (See NRS 179.285(1)(a)). However, if you are filling out an application and it asks whether you have a sealed criminal record you should answer “yes”.
If you are unsure, you should consult with an attorney before answering these questions. There are some exceptions to this rule. For example, certain agencies can “peek” into sealed records (See NRS 179.301). These agencies include:
- The Nevada Gaming Control Board
- The Nevada Division of Insurance of the Department of Business and Industry
- The Nevada State Board of Pardons Commissioners and its agents and representatives can also inquire and inspect sealed records (See NRS 179.245 or NRS 179.255)
- If you are arrested for the same offense that you sealed, prosecutors have the option of opening sealed records to use against you (See NRS 179.245 or 179.255)
Finally, sealing your criminal records, does not restore your 2nd Amendment right to firearms. In order to get your gun rights restored you must receive a pardon from the Nevada Pardons Board (See NRS 179.285).
The process takes at least a year to complete. However, a recent expedited process has been created by the Nevada State Legislature for decriminalized offenses such as convictions for possession of cannabis. The Nevada State Attorney General’s Office has an easy to read and understand notice on the process which can be found on the Nevada Attorney General’s website, linked here: https://bit.ly/2GWJJIo
The procedure for sealing your records:
The Nevada statutes for criminal records sealing are found in NRS 179.241-179.301. These statutes define record sealing and categorize the crimes that can be sealed.
The first thing you need to do is get a certified copy of your criminal records (See NRS 179.245(2)(a)). You can obtain this directly from The Central Repository for Nevada Records of Criminal History.
In order to make this request you will need to fill out form DPS-006 and follow the instructions: https://rccd.nv.gov/uploadedFiles/gsd.nv.gov/content/FeesForms/Criminal/0000RCCD-006-082019rev__DPS-006__Request%20for%20Nevada%20Criminal%20History(19%20Aug%2019).pdf
This part of the process will include being fingerprinted by a certified fingerprint tech which can be done at any police station or sheriff’s office. When you request a fingerprint card just let them know you are requesting a criminal history report.
If your fingerprints are given to you in a sealed envelope do not open that envelope! Once you have your fingerprints done and have the above form completed, send a certified check or money order in the amount of $27 to the Department of Public Safety Records, Communications and Compliance Division, 333 West Nye Lane, Suite 100, Carson City, Nevada 89706.
Please note: If the form is incomplete, there are no fingerprints or the fees are not there, your request will be rejected. This part of the process can take 45 days or more to complete.
These reports have an expiration date and must be used prior to that date when you petition the court or you must request another copy of the report again. During this phase it may also be helpful to review the report and go to the courts or agencies to obtain records pertaining to the cases being closed in order to help you determine the eligibility for your records to be sealed. This is not required, but is helpful.
Once you receive your DPS report you will need to determine if the crime you were convicted of is eligible to be sealed, or if you have met the eligibility requirements to have your records sealed.
You cannot seal records if you have been convicted of the following:
- Crimes against children (NRS 179D.0357)
- Felony DUIs
- DUIs resulting in the death of another person. The NRSs contained within this provision are expansive and include NRS 484C.110, NRS 484C.120, NRS 484C.430 (while operating a land vehicle) and NRS 488.420, 488.425 (while operating a watercraft).
- You should consult an attorney regarding the specifics.
- Sexual offenses
Required waiting periods prescribed under NRS 179.245:
Prescribed waiting periods begin only when you have completed all sentencing requirements (i.e. custody, probation, fees, community service, etc.) and your case is closed. You must remain conviction free except for minor traffic violations after your last conviction for the required waiting period. If you have any current pending charges here or anywhere else you cannot seal your records! If you were dishonorably discharged from probation, this does not exclude you from petitioning the court for your records to be sealed, as long as you have met the eligibility requirements.
The waiting periods for various convictions are as follows:
- Category A Felonies: Crimes of Violence (NRS 200.408), Burglary (NRS 205.060) – 10 years
- Category B, C, D Felonies – 5 years
- Category E Felonies – 2 years
- Enhancible Misdemeanors, including Non-Felony DUI and Non-Felony Domestic Battery – 7 years
- Gross Misdemeanor Battery (NRS 200.481), Harassment (NRS 200.571), Stalking (NRS 200.575), Violation of a Temporary/Extended Order for Protection – 2 years
- All other Misdemeanors and traffic violations – 1 year
- Acquitted or dismissed charges or Honorable Discharge or charge under NRS 453.3363 – no waiting period (See NRS 179.255)
- Charges prosecution declined to prosecute: After the statute of limitation has run or 8 years after the arrest or if agreed by the parties.
Once you have determined which crimes are eligible on your DPS report, you will need to make a list of all of the charges. This will assist you when filling out your petition(s) to seal record(s).
The list should contain the following information for each charge:
- Date of arrest
- Arresting agency (ex NHP, Reno PD, Sparks PD, Metro PD, etc.)
- What was the charge you were originally charged with?
- What court was your case in? (District Court, Justice Court, Municipal Court)
- What is the case number?
- What was the outcome or final disposition? (ex. dismissed, plead guilty, etc.)
Once you have all of your lists made you can begin the process of petitioning the Court to seal your records and receiving the orders from the Courts. You can request to seal records in one petition if you are filing in a County District Court, however, Justice and Municipal Court have different rules. You may only be allowed to file individual petitions.
There are also filing fees associated with filing each petition and that will vary by Court. For this process you should consult an attorney as filing the paperwork and allowing the proper time to run to submit the petition can get tricky.
When you receive the order sealing your records you must go to the Court and obtain certified copies of that order. Generally, the standard is to obtain at least 15 certified copies of the order sealing. There are fees associated with obtaining certified copies from the court and will vary by court.
Once you obtain the certified copies you must mail copies of the order sealing records, along with returns, to each agency that has these particular conviction or arrest records. This list includes but is not limited to: police departments, Nevada Department of Public Safety, the court you were convicted, the district attorney or city attorney, DMV, etc.
Once the agencies have complied with the order sealing the records they will notify you by sending back the returns. This process takes time and you will need to be patient. In general, the last agency to provide a return is the Nevada Department of Public Safety (NVDPS).
The NVDPS forwards the order sealing records to the FBI to process and once the FBI has processed it, they report back to NVDPS and they send a return to you.
Congratulations, you have now successfully sealed your State of Nevada criminal record.
You should always consult with an attorney of your own. In most cases, that is the best way to access the legal process. This column is meant to educate, not represent. If you have a legal question regarding a different topic please feel free to submit them via email at Henry@henrysotelolaw.com.
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