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LEGISLATURE OF NEBRASKA
ONE HUNDRED SEVENTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 481
Introduced by McKinney, 11; Cavanaugh, J., 9; Cavanaugh, M., 6; Hansen,
M., 26; Morfeld, 46; Wishart, 27.
Read first time January 15, 2021
Committee: Judiciary
1 A BILL FOR AN ACT relating to marijuana; to amend sections 28-439,
2 43-292, 77-4301, 77-4302, 77-4303, 77-4304, 77-4305, 77-4306,
3 77-4309, 77-4310.01, and 77-4310.03, Reissue Revised Statutes of
4 Nebraska, and sections 28-401, 28-405, 28-416, 28-1354, 60-6,211.08,
5 and 71-5727, Revised Statutes Cumulative Supplement, 2020; to adopt
6 the Marijuana Conviction Clean Slate Act; to decriminalize
7 possession of marijuana; to change provisions relating to penalties
8 for possession of a synthetic cannabinoid and drug paraphernalia; to
9 define and redefine terms; to change provisions relating to
10 termination of parental rights, visitation, custody, and other
11 parenting matters; to prohibit possession of an open container of
12 marijuana in a motor vehicle; to provide for the applicability of
13 the Nebraska Clean Indoor Air Act; to remove marijuana from the
14 marijuana and controlled substances tax; to rename a fund; to
15 eliminate obsolete provisions; to harmonize provisions; and to
16 repeal the original sections.
17 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Sections 1 to 14 of this act shall be known and may be
2 cited as the Marijuana Conviction Clean Slate Act.
3 Sec. 2. For purposes of the Marijuana Conviction Clean Slate Act,
4 the definitions found in the Marijuana Control Act, the Security,
5 Privacy, and Dissemination of Criminal History Information Act, and
6 sections 3 to 6 of this act apply.
7 Sec. 3. The terms conviction and adjudication include a conviction
8 or adjudication following trial or entry of a guilty plea or plea of nolo
9 contendere and include a forfeiture of bail, bond, or other security
10 deposited to secure appearance by a person charged with an offense.
11 Sec. 4. Marijuana has the same meaning as in section 28-401.
12 Sec. 5. Qualified offense means:
13 (1) Any of the following violations of section 28-416, as such
14 section existed prior to the effective date of this act involving
15 marijuana or synthetic marijuana:
16 (a) A violation of subsection (1), (4), or (5) of section 28-416
17 involving possession with intent to commit any act;
18 (b) A violation of subsection (11), (12), or (13) of section 28-416;
19 (c) A violation of subsection (16) or (17) of section 28-416 based
20 upon a violation described in this section; or
21 (d) A violation of section 28-416 or any other criminal statute in
22 Nebraska, as such section or statute existed prior to the effective date
23 of this act, substantially similar to any of the violations described in
24 this subdivision (1).
25 (2) A violation of section 28-441 or 28-442 as such sections existed
26 prior to the effective date of this act involving drug paraphernalia
27 relating to marijuana or synthetic marijuana;
28 (3) Violation of an ordinance substantially similar to an offense
29 described in subsection (1) or (2) of this section; or
30 (4) Attempt, solicitation, aiding or abetting, being an accessory,
31 or conspiracy to commit an offense listed in subdivision (1), (2), or (3)
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1 of this section.
2 Sec. 6. Synthetic marijuana means a substance, chemical, or
3 compound described, defined, or delineated in subdivision (c)(24) of
4 Schedule I of section 28-405, as such section existed prior to the
5 effective date of this act.
6 Sec. 7. (1) Beginning June 1, 2023, a person shall automatically be
7 eligible for clean slate relief under sections 10 and 11 of this act for
8 a qualified offense if the person was sentenced for such offense on or
9 after January 1, 1994, and if, as of June 1, 2023, such person has
10 completed the sentence for such offense, including payment of all court-
11 ordered financial obligations related to such offense.
12 (2) Eligibility for relief under this section shall be determined
13 internally and administratively by the State Court Administrator and does
14 not require any involvement by the person in interest.
15 (3) On or before June 1, 2023, the State Court Administrator shall:
16 (a) Identify all persons eligible for relief under subsection (1) of
17 this section; and
18 (b) Notify the court of conviction or adjudication of such
19 determination.
20 (4) Each court of conviction or adjudication shall, on or before
21 August 1, 2023, issue orders for clean slate relief under sections 10 and
22 11 of this act for each person for whom the court received a notification
23 under subsection (3) of this section.
24 (5) The State Court Administrator is not required to proceed under
25 subsection (3) of this section if the State Court Administrator
26 determines that the person in interest is deceased.
27 Sec. 8. (1) Beginning July 1, 2023, a person shall automatically be
28 eligible for clean slate relief under sections 10 and 11 of this act for
29 a qualified offense the person was sentenced for on or after January 1,
30 1994, if such person has completed the sentence for such offense,
31 including payment of all court-ordered financial obligations related to
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1 such offense.
2 (2) Eligibility for relief under this section shall be determined
3 internally and administratively by the State Court Administrator and does
4 not require any involvement by the person in interest.
5 (3) Beginning July 1, 2023, the State Court Administrator shall, on
6 a monthly basis:
7 (a) Identify all persons eligible for relief under subsection (1) of
8 this section; and
9 (b) Notify the court of conviction or adjudication of such
10 determination.
11 (4) Each court of conviction or adjudication shall, on a monthly
12 basis, issue orders for clean slate relief under sections 10 and 11 of
13 this act for each person for whom the court received a notification under
14 subsection (3) of this section.
15 (5) The State Court Administrator is not required to proceed under
16 subsection (3) of this section if the State Court Administrator
17 determines that the person in interest is deceased.
18 Sec. 9. (1) A person convicted of, or adjudicated for, a qualified
19 offense, regardless of when the offense was committed, may petition the
20 court for clean slate relief under sections 10 and 11 of this act if such
21 person has completed the sentence for such offense and paid all court-
22 ordered financial obligations related to such offense.
23 (2) This section applies to a qualified offense regardless of when
24 it was committed.
25 (3) The petition shall be filed in the court of conviction or
26 adjudication. There shall be no filing or docketing fee charged by the
27 court for the filing of a petition except for the fee authorized by this
28 subsection. The court may charge a filing fee in an amount set by the
29 State Court Administrator. The fee shall be set at an amount to recoup
30 the costs associated with administering the Marijuana Conviction Clean
31 Slate Act, but shall not exceed forty dollars.
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1 (4) The court shall provide notice of the filing of the petition to
2 the appropriate county attorney or city attorney within ten days. Within
3 thirty days after receipt of notice, the county attorney or city attorney
4 may file objections to the petition. If no objection is timely filed, the
5 court shall grant the petition without further hearing if the
6 requirements of this section have been met.
7 (5) If the court determines that the person in interest meets the
8 eligibility requirements of this section, the court shall grant the
9 petition.
10 (6) Upon granting a petition under this section, the court shall
11 issue an order for clean slate relief under sections 10 and 11 of this
12 act.
13 (7) An order granting or denying a petition under this section is a
14 final, appealable order for purposes of section 25-1902.
15 Sec. 10. (1) An order for clean slate relief shall:
16 (a) Nullify the conviction;
17 (b) Remove all civil disabilities and disqualifications imposed as a
18 result of the conviction; and
19 (c) Notify the person in interest that such person should consult
20 with an attorney regarding the effect of the order, if any, on such
21 person's ability to possess a firearm under state or federal law.
22 (2) An order for clean slate relief shall not:
23 (a) Require the reinstatement of any office, employment, or position
24 which was previously held and lost or forfeited as a result of the
25 conviction; or
26 (b) Affect eligibility for, or obligations relating to, a commercial
27 driver's license.
28 Sec. 11. (1) Following entry of a court order granting a person
29 clean slate relief under section 10 of this act, a criminal justice
30 agency shall respond to a public inquiry in the same manner as if there
31 were no criminal history record information and criminal history record
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1 information shall not be disseminated to any person other than a criminal
2 justice agency, except as provided in subsections (4) and (5) of this
3 section.
4 (2) In issuing an order for clean slate relief, the court shall:
5 (a) Order that all records, including any information or other data
6 concerning any proceedings relating to the case, including the arrest,
7 taking into custody, petition, complaint, indictment, information, trial,
8 hearing, adjudication, correctional supervision, dismissal, or other
9 disposition or sentence, are not part of the public record and shall not
10 be disseminated to persons other than criminal justice agencies, except
11 as provided in subsections (4) and (5) of this section;
12 (b) Send notice of the order to (i) the Nebraska Commission on Law
13 Enforcement and Criminal Justice, (ii) the Nebraska State Patrol, and
14 (iii) law enforcement agencies, county attorneys, and city attorneys
15 referenced in the court record;
16 (c) If the order relates to an adjudication, send notice of the
17 order to (i) the Department of Motor Vehicles, if the adjudication
18 included impoundment or prohibition to obtain a license or permit
19 pursuant to section 43-287, and (ii) the Department of Health and Human
20 Services, if the person in interest was a ward of the state at the time
21 the proceeding was initiated or if the department was a party in the
22 proceeding;
23 (d) Order all parties notified under subdivisions (2)(b) and (c) of
24 this section to seal all records pertaining to the case; and
25 (e) If the case was transferred from one court to another, send
26 notice of the order to seal the record to the original, transferring
27 court.
28 (3) In any application for employment, bonding, license, education,
29 or other right or privilege, any appearance as a witness, or any other
30 public inquiry, a person shall not be questioned with respect to any
31 offense for which the record is sealed. If an inquiry is made in
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1 violation of this subsection, the person may respond as if the offense
2 never occurred.
3 (4) A criminal justice agency may, with respect to criminal history
4 record information sealed under this section, disclose, disseminate,
5 respond to inquiries regarding, or allow inspection of such criminal
6 history record information:
7 (a) If the person in interest has made a notarized request for the
8 release of information, to the extent authorized in such release;
9 (b) If the person in interest is currently the subject of
10 prosecution or correctional control as the result of a separate arrest;
11 (c) If the person in interest is currently an announced candidate
12 for or holder of public office;
13 (d) If the criminal history record information is kept unidentified,
14 and the record is used for purposes of surveying or summarizing
15 individual or collective law enforcement agency activity or practices, or
16 the dissemination is requested consisting only of release of criminal
17 history record information showing (i) dates of arrests, (ii) reasons for
18 arrests, and (iii) the nature of the dispositions, including, but not
19 limited to, reasons for not prosecuting the case or cases;
20 (e) To individuals and agencies for the express purpose of research,
21 evaluative, or statistical activities pursuant to an agreement with a
22 criminal justice agency that specifically authorizes access to the
23 information, limits the use of the information to research, evaluative,
24 or statistical activities, and ensures the confidentiality and security
25 of the information; and
26 (f) In response to an inquiry for employment, security, or other
27 purposes to the extent disclosure of such criminal history record
28 information is required by:
29 (i) Federal law, including rules and regulations and rules and
30 regulations promulgated by a self-regulatory organization created under
31 federal law; or
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1 (ii) State law, including rules or regulations, relating to
2 operation of a motor vehicle or caring for or interacting with children,
3 including, but not limited to, determining whether an application filed
4 or a license issued under sections 71-1901 to 71-1906.01, the Child Care
5 Licensing Act, or the Children's Residential Facilities and Placing
6 Licensure Act or a certificate issued under sections 79-806 to 79-815
7 should be denied, suspended, or revoked.
8 (5) In addition to disclosures authorized under subsection (4) of
9 this section, inspection of criminal history record information relating
10 to an adjudication that has been sealed under this section may be made by
11 the persons and for the purposes authorized in section 43-2,108.05.
12 Sec. 12. An appeal by a person in interest who is denied clean
13 slate relief shall be expedited. If, on appeal, it is determined that the
14 person in interest was wrongfully denied clean slate relief, the state
15 shall pay such person's attorney's fees for the appeal.
16 Sec. 13. (1) Upon petition of the county attorney or city attorney,
17 and with notice to the person in interest and opportunity to be heard,
18 the court shall vacate an order for clean slate relief issued pursuant to
19 section 7 or 8 of this act if the court determines that the order was
20 erroneously entered and not in accordance with the Marijuana Conviction
21 Clean Slate Act.
22 (2) Upon entry of an or