The FIRST STEP ACT

The Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act or FIRST STEP Act reforms the federal prison system and seeks to reduce recidivism.  The act was signed by President Donald Trump on December 21, 2018.   The Act shall, among many provisions: allow for employees to store their firearms securely at federal prisons; restrict the use of restraints on pregnant women; expand compassionate release for terminally ill patients; place prisoners closer to family in some cases; authorize new markets for Federal Prison Industries; mandate de-escalation training for correctional officers and employees; and improve feminine hygiene in prison.

The major provisions of the First Step Act, as it stands now:

  • The Act makes retroactive the reforms enacted by the Fair Sentencing Act of 2010, which reduced the disparity between crack and powder cocaine sentences at the federal level.
  • The Act takes several steps to ease mandatory minimum sentences under federal law. It gives more discretion to judges in handing down mandatory minimum sentences. It eases a “three strikes” rule so people with three or more convictions, including for drug offenses, do not automatically get 25 years instead of life.   It restricts the current practice of stacking gun charges against drug offenders to add possibly decades to prison sentences. All of these changes would lead to shorter prison sentences in the future.
  • The Act increases “good time credits” that inmates can earn. It allows credits for participating in more vocational and rehabilitative programs. These credits will allow inmates to be released early to halfway houses or home confinement. Not only could this mitigate prison overcrowding, but the hope is that the education programs will reduce the likelihood that an inmate will commit another crime once released and, as a result, reduce both crime and incarceration in the long term.

Not every inmate will benefit from the changes. The system will use an algorithm to initially determine who can cash in earned time credits, with inmates deemed higher risk excluded from cashing in, although not from earning the credits. The Act also excludes certain inmates from earning credits, such as undocumented immigrants and people who are convicted of high-level offenses.

Nothing in the Act is groundbreaking.  That is one reason the Act is dubbed a “first step.” Still, the Act starts to chip away at criminal justice reform at the federal level, which is a small part of the criminal justice system.  It is important to understand that almost all police work is done at the local and state level. There are about 18,000 law enforcement agencies in America, only around 50 or so are federal agencies.

By and large, criminal justice reform will fall to the local and state governments.  Many have already passed the kinds of sentencing reforms that the federal system has struggled to enact. 

This is not to downplay the Act but it’s important to put its full impact on mass incarceration in a broader context

ARE YOU IN DANGER OF LOSING YOUR HOME TO FORECLOSURE? PART TWO

Last month, we spoke about home foreclosure. If you are about to be in the throes of the nonjudicial foreclosure process, I informed you to don’t give up because there is still hope. Have you heard of the Nevada Foreclosure Mediation Program? The Foreclosure Mediation Program or “FMP” is a process where Homeowners and Lenders meet in person with a Mediator to speak about ways to avoid foreclosure. The Mediator is a neutral person who tries to help the Homeowner and Lender come up with a fair and voluntary agreement. FMP affects homeowners in owner-occupied properties who are served a notice of default and Election to sell recorded on or after July 1, 2017. Homeowners served before July 1, 2017, can go through the process if the lender consents in writing.

If you have you received a Notice of Default within the last thirty days or you received a Complaint about Judicial Foreclosure within the last twenty days, and you are interested in participating in foreclosure mediation, visit the Petition for Foreclosure Mediation Assistance page for a step-by-step guide. Do not wait! If the process has gone too far, it may be too late to stop the foreclosure of your home.
If you petition for foreclosure mediation assistance within the appropriate time, the lender may not foreclose until mediation has been completed. Once mediation is scheduled, the actual mediation meeting is fairly fast (less than four hours), inexpensive ($500, paid equally by the parties), and less formal than other legal processes. The goal of the program is to make foreclosure the last resort for the lender.
In short, you will file a Petition for Foreclosure Mediation Assistance at the district court clerk’s office, pay a $250.00 mediator fee and a $25.00 filing fee, then mail copies of your petition to the lender, trustee, and Home Means Nevada. The Supreme Court established Home Means Nevada, Inc. as the mediation administrator for the Foreclosure Mediation Program. If you timely file the petition, no further action can be taken to sell your home until completion of the mediation. (NRS 107.086.)
After filing your petition, you will receive a notice appointing a mediator. The mediator will arrange a time and place for the mediation. The mediator will send you a scheduling notice explaining what documents you must produce and how to exchange them with your lender before the mediation.
Three parties will be present at the mediation: you, the lender, and the mediator. Both you and the lender must negotiate in good faith regarding alternatives to foreclosure. Usually, alternatives to foreclosure include (i) loan modification or repayment plan, (ii) short sale or (iii) giving the property up (a “deed-in-lieu”). You will tell them what you want and show them what you can afford. If you reach an agreement, the mediator will help you outline the terms of the agreement.
The mediator will issue a Mediator’s Statement within ten days of the conclusion of the mediation. Within ten days of that statement, either side can submit a request or an objection. The District Court judge then enters an Order that reflects the terms of the loan modification if one was reached, and the new terms under the loan modification will begin. If no loan modification or other agreement was reached, the judge will dismiss the case. The order dismissing the case will be served on Home Means Nevada, who will then issue a certificate to the trustee to proceed with the foreclosure.
But remember, if you have received a Notice of Default within the last thirty days or you received a Complaint about Judicial Foreclosure within the last twenty days, TIME IS OF THE ESSENCE IN TRYING TO SAVE YOUR HOME FROM FORECLOSURE!!!

ARE YOU IN DANGER OF LOSING YOUR HOME TO FORECLOSURE?

If your answer to the above question is yes, make sure you know your rights. When you take out a loan to purchase residential property in Nevada, you will likely sign a promissory note and a deed of trust. A promissory note is basically an IOU that contains the promise to repay the loan, as well as the terms for repayment. The deed of trust provides security for the loan that is evidenced by a promissory note. If you miss a payment, most loans include a grace period of ten or fifteen days after which time the loan servicer will assess a late fee. To find out the late charge amount and grace period for your loan, look at the promissory note that you signed. This information can also be found on your monthly mortgage statement.

If you miss a few mortgage payments, your mortgage servicer will probably send a letter or two reminding you to get caught up, as well as call you to try to collect the payments. Don’t ignore the phone calls and letters. This is a good opportunity to discuss foreclosure avoidance options and attempt to work out an agreement, like a loan modification, forbearance or payment plan. Under federal laws that went into effect January 10, 2014, the servicer normally must wait until you are 120 days delinquent on payments before making the first official notice or filing for any nonjudicial or judicial foreclosure.

Nevada law requires the servicer or owner of the loan to send the borrower a notice that contains information about the account, including the total amount needed to cure the default and includes information about foreclosure prevention alternatives, among other things. Nev. Rev. Stat. § 107.500. In Nevada, most residential foreclosures are nonjudicial. This means the lender can foreclose without going to court as long as the deed of trust contains a power of sale clause.

The Nevada nonjudicial foreclosure process formally begins when the trustee, a third-party, records a Notice of Default and Election to Sell (NOD) in the office of the recorder in the county where the property is located, providing three months to cure the default. A copy of the NOD must be sent to each person who has a recorded request for a copy and each person with an interest or claimed an interest in the property by registered or certified mail within ten days after the NOD is recorded. Nev. Rev. Stat. § 107.090. If a residential foreclosure, a copy of the NOD must be posted on the property, Nev. Rev. Stat. § 107.087, and the trustee or beneficiary (lender) must record a notarized affidavit. See Nev. Rev. Stat. § 107.0805 for what must be included in the affidavit.

If you are about to be in the throes of the nonjudicial foreclosure process, don’t give up…there is still hope. Have you heard of the Nevada Foreclosure Mediation Program? Stay tuned over the next month for more information!

VEGAS STRONG RESILIENCY CENTER

The Vegas Strong Resiliency Center serves as a one-stop resource and referral hub for residents, visitors and responders affected by the 1 October shooting incident. It is located at 1524 Pinto Lane, Las Vegas, Nevada, Second Floor, 10:00 a.m. to 7:00 p.m., Monday – Friday, excluding holidays.

Services include:

  • Victim Advocacy and Support
  • Case Management
  • Legal Assistance
  • Counseling and Spiritual Care Referrals
  • Technical Assistance Accessing Online Resources Including the FBI Victim Assistance Services

OTHER ASSISTANCE PROGRAMS INCLUDE:

NEVADA VICTIMS OF CRIME PROGRAM: www.voc.nv.gov or 702-486-2740.

If you were injured in or were present during the shooting at Route 91 Harvest Music Festival in Las Vegas on Oct. 1, 2017, you may be eligible for funds from the Nevada Victims of Crime Program for reimbursement of out-of-pocket expenses resulting from the crime such as medical bills, funeral expenses or mental health counseling not covered by insurance. Your application must be submitted within one year of the date of the incident, or by Oct. 1, 2018, to be eligible for assistance from the program for future expenses that you may incur.

 

FBI VICTIM ASSISTANCE SERVICES

The FBI has collected and cataloged thousands of belongings left behind at the concert venue. All requests for belongings lost at the festival site are being processed through the FBI’s Victim Services Division website and the online questionnaire located at: www.fbi.gov/lvmusicfestivalshooting.

Event attendees also can email inquiries to the FBI at: LVFestivalAssist@fbi.gov.

Please include as much detail about your lost items as possible. They will work with individuals to get your identified items back to you as soon as possible.

To Do or Not to Do—Drinking and Driving???

Christian views on alcohol are varied. But what is clear is that driving under the influence (DUI) or driving while intoxicated (DWI) are serious offenses. DUI/DWI are offenses committed when a driver operates a vehicle after the consumption of alcohol or drugs or other intoxicants. I oftentimes hear people say “I only had one drink at dinner and I am fine to drive.” It’s important to count the cost of even consuming a small amount of alcohol and driving.

REGULATIONS FOR DUI/DWI in NEVADA
In Nevada, the Blood Alcohol Content (BAC) limit is set at 0.08% for drivers over 21 years of age and it is set between 0.02 and 0.08% for those under 21. For commercial drivers, the limit is set at 0.04%. Despite these guidelines, a driver may be arrested and be convicted for a lower BAC.

Having a Nevada license automatically provides your consent to be tested if stopped by a law enforcement officer, while driving. This is the law of “implied consent” and can be used by the officer to test you if you are stopped on the suspicion of drunk driving, either through a breathalyzer test or by an actual blood test to check the BAC. Refusing to take the chemical test will result in your permit to drive or license being seized; you may be arrested and taken for testing.

Points will be added to your driving record and your license will be suspended or revoked if you are convicted of DUI/DWI. The number of points assessed, depending on the severity of the offense and the number of times you have been convicted for it.

ACTIONS AGAINST DUI/DWI FOR DRIVERS OVER 21:
If you are over 21 years old and are caught with BAC higher than the set limit of 0.08%, you may be subjected to criminal actions in addition to administrative actions. If the DUI/DWI incident you are involved in is subjected to the criminal action, it is recommended that you get in touch with a DUI/DWI lawyer as they are experts at handling such incidents and can offer you the best advice.

The first drinking and driving offense is normally treated as a Misdemeanor and may result in imprisonment for between two days and six months (or community service for 96 hours) and/or a $400- $1000 fine. Also, if convicted for a first offense:

o Your license will be revoked for 90 days;
o You may be eligible to drive using the restricted license for 10 hours a day for six days each week, with an Ignition Interlock Device after 45 days of revocation;
o You may have to pay $150.00 that is the average cost of DUI School; and
o You may have to undergo a treatment program if BAC is 0.08 or above.

ADMINISTRATIVE ACTIONS AGAINST DUI/DWI:
Nevada laws have administrative implications in addition to the criminal laws against DUI/DWI. An officer may arrest a driver if:

• He/she is aged 21 and above and is driving with BAC 0.08% or more.
• He/she is aged below 21 and is driving with BAC 0.02% or more.

If you are arrested for DUI/DWI, the arresting officer will confiscate your Nevada driver license and issue a temporary seven-day driving permit, complete a notice of license suspension/revocation based on the nature of the offense along with a warrant, if applicable; and send the entire set to the Department of Motor Vehicles.

The driver can schedule an administrative hearing after the notice of suspension/revocation. It is a good idea to consult a DUI/DWI lawyer beforehand. If the hearing goes against the driver, his/her license will be suspended or revoked based on a previous seven-year driving record. If there are any alcohol related convictions or suspensions for this seven-year period, the license will be revoked for one year, and if not, then it will be suspended for 90 days. You may be eligible to drive using the Restricted License if you meet the conditions. The suspension or revocation begins five days after the final order of the hearing officer is mailed from the Department of Motor Vehicles. If the administrative hearing goes against the driver, one can ask for a review from the circuit court. If the driver, however, does not request a hearing, then the suspension/revocation begins after the arrest and is final.

LICENSE REINSTATEMENT AFTER DUI/DWI SUSPENSION/REVOCATION:
If you are convicted of DUI/DWI, it will result in your license being suspended or revoked. This means that your driving privileges will be taken away and you will need to apply for a reinstatement of your license with the Department of Motor Vehicles, once the period of suspension or revocation is over. Reinstating a license after a suspension of a year, or revocation will also mean taking the driving tests all over again. These will include the vision test, knowledge test, and the road test. If you do not complete the reinstatement requirements, the license will remain suspended or revoked.

1. To complete the reinstatement requirements, you must prove that you have successfully completed the DUI school program or a comparable program, pay the reinstatement fee of $65, pay Victim’s fee of $35.00 and maintain proof of financial responsibility for three years from the date of suspension/revocation by filing SR-22, if you are over 21 years old. SR-22 may also be required for those aged below 21.
2. If you are being convicted, the court may order an ignition interlock device to be placed for breathalyzer tests on any vehicle you drive at your cost.
3. You can submit the reinstatement application and fees in person at a Department of Motor Vehicles office near you.

So remember to ask yourself…is it ever wise to drink and drive?

Sealing Adult Criminal Records in Nevada

Nevada has one of the best criminal record sealing laws in the country. After waiting periods are met, most criminal records can be sealed (see waiting periods below). Criminal record sealing in Nevada typically takes about 4 to 6 months. If your record is sealed, it is hidden from public view. For legal purposes, it is as though the events described within the sealed record never occurred and, in most cases, you may say that you were not arrested or convicted of a crime. (Nevada Revised Statutes § 179.285.)

If You Were Not Convicted of a Crime
If you were arrested but the charges against you were dismissed or you were acquitted, you may petition to have the arrest record sealed. (Nevada Revised Statutes § 179.255.)

If You Were Convicted of a Crime:

You have completed probation. After successfully completing court-ordered probation, you may petition to have the related criminal records sealed. (Nevada Revised Statutes § 176A.265.)
You completed a reentry program. If you have completed a program of reentry, you may petition to have the related criminal records sealed. Sex offenses and offenses against children do not qualify. (Nevada Revised Statutes § 179.259.)

Your conviction was set aside. If your criminal conviction was set aside you may, at any time after the set-aside, petition to have the related records sealed. (Nevada Revised Statutes § 179.255.)
You completed a court-ordered drug or alcohol treatment program and your conviction was set aside. After you have successfully completed treatment, if the court sets aside your conviction, the court must also order that the related records be sealed. (Nevada Revised Statutes § 458.330.)
You were convicted of possession of a controlled substance not for purposes of sale. You may petition to have your record sealed after waiting 3 years from the time you were sentenced. (Nevada Revised Statutes § 453.3365.)

You were convicted of one of the crimes listed below. If you were convicted of any of the following crimes in Nevada, you may ask to have your record sealed after waiting the number of years given below.
• Misdemeanors other than gross misdemeanors. You must wait at least 2 years from the date you are released from custody or discharged from probation or parole, whichever happens later.
• Gross misdemeanors. You must wait at least 7 years from the date you are released from custody or discharged from probation or parole, whichever happens later.
• Category E felonies. You must wait at least 7 years from the date you are released from custody or discharged from probation or parole, whichever happens later.
• Category C or D felonies. You must wait at least 12 years from the date you are released from custody or discharged from parole or probation, whichever happens later.
• Category A or B felonies. You must wait at least 15 years from the date you are released from custody or discharged from parole or probation, whichever happens later.
Records for sexual offenses or offenses against children may not be sealed.

How to File
The procedures for sealing your criminal record in Nevada vary from county to county. For more information, contact the court in the county where the arrest occurred. Before you begin, it is a good idea to obtain a copy of your Nevada criminal history record.
Getting Legal Help
Cleaning up a criminal record can be complicated. If you are not sure whether your record qualifies for sealing in Nevada — or for advice about your personal situation — you should contact a qualified criminal law attorney. A good lawyer can guide you each step of the way. In addition, assistance is provided by the Legal Aid Center of Southern Nevada.

Eviction Process Rules in Nevada

In Nevada, a landlord can’t begin an eviction lawsuit without first legally terminating the tenancy. This means giving the tenant written notice, as specified in the state’s termination statute. If the tenant doesn’t move (or reform—for example, by paying the rent or finding a new home for the dog), you can then file a lawsuit to evict. (Technically, this is called an unlawful detainer, or summary eviction, lawsuit.)

Nevada law sets out detailed requirements to end a tenancy, with different types of termination notices and procedures required for different types of situations. This article provides an overview of the rules landlords must follow when evicting a tenant or ending a tenancy in Nevada.

Notice of Termination With Cause

Nevada allows a landlord to terminate a tenancy early and evict a tenant for a number of reasons, including not paying rent, violating the lease or rental agreement, or committing an illegal act. The reason for the eviction will determine the type of notice the landlord must give to the tenant.
Five-Day Notice to Pay Rent or Quit: If the tenant fails to pay rent when it is due, the landlord can give the tenant a five-day notice to pay rent or quit. This notice informs the tenant that the tenant has five days to pay rent in full or move out of the rental unit. If the tenant does not pay rent or move, the landlord can file an eviction lawsuit with the court at the end of the five days (see NRS § 40.253).
Five-Day Notice to Cure or Quit: If the tenant violates a portion of the lease or rental agreement and the violation can be fixed, then the landlord can give the tenant a five-day notice to cure or quit. This notice informs the tenant that the tenant has five days to fix the violation or move out of the rental unit. If the tenant does not comply with the notice, then the landlord can file an eviction lawsuit at the end of the five days (see NRS § 40.2516).
Unconditional Quit Notice: This type of notice informs the tenant that the tenant must move out of the rental unit immediately. It does not give the tenant any time to fix the violation, and if the tenant does not move out immediately, the landlord can go straight to court and file an eviction lawsuit. The landlord can use an unconditional quit notice only when:
the tenant has assigned or sublet the rental unit in violation of the lease or rental agreement
the tenant has caused substantial damage to the property
the tenant has permitted or created a nuisance at the rental unit
the tenant has caused injury or damage to other tenants of the property or adjacent buildings or structures, or
the tenant has been in unlawful possession for sale, manufacture, or distribution of illegal drugs.
Notice for Termination Without Cause

The rules for terminating a tenancy without cause vary depending upon whether the tenant has a month-to-month rental agreement or a fixed-term lease.
Month-to-Month Rental Agreement
With a month-to-month rental agreement, the landlord must give the tenant at least a 30-day written notice informing the tenant that the tenancy will expire at the end of 30 days and the tenant must move out of the rental unit by that time. The same type of notice is required for a week-to-week agreement, except the landlord only needs to give the tenant seven days’ notice.
If the tenant is over 60 years old or has a physical or mental disability, the tenant may request an additional 30 days to move out of the rental unit. If the tenant requests this extension, the landlord must allow it (see NRS § 40.251).
Fixed-Term Lease
A landlord can only remove a tenant without cause at the end of the time specified in the lease agreement. The landlord may not be required to give the tenant notice for leases that are longer than month-to-month unless the lease agreement requires it. This means that if the tenant has a year-long lease that expires in December and the tenant has not requested a lease renewal, the landlord will not need to give the tenant notice to move out by the end of December unless the terms of the lease specifically require it.
A tenant may decide to fight the eviction, which could add time to the eviction lawsuit. The tenant could have several potential defenses, including mistakes the landlord made during the eviction process, such as using the wrong form or improperly serving it. The tenant could also assert that the landlord failed to maintain the rental unit and that the termination is retaliatory because the tenant filed a complaint about uninhabitable premises, or that the landlord discriminated against the tenant in some way.

REMOVAL OF THE TENANT

The only way a landlord can legally evict a tenant is by filing an eviction lawsuit, also called an unlawful detainer suit, with the justice court of the county in which the rental unit is located. Even if the landlord wins this lawsuit, the landlord still must not personally evict the tenant. The court will give authority to a sheriff or constable to evict the tenant by a certain day.
Nevada law has made it illegal for the landlord to personally remove the tenant from the rental unit. If the tenant has abandoned the property and left behind personal belongings, either because of receiving notice or after the eviction, the landlord can dispose of the property only after storing the property for 30 days and making efforts to locate and notify the tenant of the landlord’s intent to dispose of the property.