41-1758.07. Level I fingerprint clearance cards; definitions

A. On receiving the state and federal criminal history record of a person who is required to be fingerprinted pursuant to this section, the fingerprinting division in the department of public safety shall compare the record with the list of criminal offenses that preclude the person from receiving a level I fingerprint clearance card. If the person's criminal history record does not contain any of the offenses listed in subsections B and C of this section, the fingerprinting division shall issue the person a level I fingerprint clearance card.

B. A person who is subject to registration as a sex offender in this state or any other jurisdiction or who is awaiting trial on or who has been convicted of committing or attempting, soliciting, facilitating or conspiring to commit one or more of the following offenses in this state or the same or similar offenses in another state or jurisdiction is precluded from receiving a level I fingerprint clearance card:

1. Sexual abuse of a vulnerable adult.

2. Incest.

3. Homicide, including first or second degree murder, manslaughter and negligent homicide.

4. Sexual assault.

5. Sexual exploitation of a minor.

6. Sexual exploitation of a vulnerable adult.

7. Commercial sexual exploitation of a minor.

8. Commercial sexual exploitation of a vulnerable adult.

9. Child sex trafficking as prescribed in section 13-3212.

10. Child abuse.

11. Felony child neglect.

12. Abuse of a vulnerable adult.

13. Sexual conduct with a minor.

14. Molestation of a child.

15. Molestation of a vulnerable adult.

16. Dangerous crimes against children as defined in section 13-705.

17. Exploitation of minors involving drug offenses.

18. Taking a child for the purpose of prostitution as prescribed in section 13-3206.

19. Neglect or abuse of a vulnerable adult.

20. Sex trafficking.

21. Sexual abuse.

22. Production, publication, sale, possession and presentation of obscene items as prescribed in section 13-3502.

23. Furnishing harmful items to minors as prescribed in section 13-3506.

24. Furnishing harmful items to minors by internet activity as prescribed in section 13-3506.01.

25. Obscene or indecent telephone communications to minors for commercial purposes as prescribed in section 13-3512.

26. Luring a minor for sexual exploitation.

27. Enticement of persons for purposes of prostitution.

28. Procurement by false pretenses of person for purposes of prostitution.

29. Procuring or placing persons in a house of prostitution.

30. Receiving earnings of a prostitute.

31. Causing one's spouse to become a prostitute.

32. Detention of persons in a house of prostitution for debt.

33. Keeping or residing in a house of prostitution or employment in prostitution.

34. Pandering.

35. Transporting persons for the purpose of prostitution, polygamy and concubinage.

36. Portraying adult as a minor as prescribed in section 13-3555.

37. Admitting minors to public displays of sexual conduct as prescribed in section 13-3558.

38. Any felony offense involving contributing to the delinquency of a minor.

39. Unlawful sale or purchase of children.

40. Child bigamy.

41. Any felony offense involving domestic violence as defined in section 13-3601 except for a felony offense only involving criminal damage in an amount of more than two hundred fifty dollars but less than one thousand dollars if the offense was committed before June 29, 2009.

42. Any felony offense in violation of title 13, chapter 12 if committed within five years before the date of applying for a level I fingerprint clearance card.

43. Felony drug or alcohol related offenses if committed within five years before the date of applying for a level I fingerprint clearance card.

44. Felony indecent exposure.

45. Felony public sexual indecency.

46. Terrorism.

47. Any offense involving a violent crime as defined in section 13-901.03.

48. Trafficking of persons for forced labor or services.

C. A person who is awaiting trial on or who has been convicted of committing or attempting, soliciting, facilitating or conspiring to commit one or more of the following offenses in this state or the same or similar offenses in another state or jurisdiction is precluded from receiving a level I fingerprint clearance card, except that the person may petition the board of fingerprinting for a good cause exception pursuant to section 41-619.55:

1. Any misdemeanor offense in violation of title 13, chapter 12.

2. Misdemeanor indecent exposure.

3. Misdemeanor public sexual indecency.

4. Aggravated criminal damage.

5. Theft.

6. Theft by extortion.

7. Shoplifting.

8. Forgery.

9. Criminal possession of a forgery device.

10. Obtaining a signature by deception.

11. Criminal impersonation.

12. Theft of a credit card or obtaining a credit card by fraudulent means.

13. Receipt of anything of value obtained by fraudulent use of a credit card.

14. Forgery of a credit card.

15. Fraudulent use of a credit card.

16. Possession of any machinery, plate or other contrivance or incomplete credit card.

17. False statement as to financial condition or identity to obtain a credit card.

18. Fraud by persons authorized to provide goods or services.

19. Credit card transaction record theft.

20. Misconduct involving weapons.

21. Misconduct involving explosives.

22. Depositing explosives.

23. Misconduct involving simulated explosive devices.

24. Concealed weapon violation.

25. Misdemeanor possession and misdemeanor sale of peyote.

26. Felony possession and felony sale of peyote if committed more than five years before the date of applying for a level I fingerprint clearance card.

27. Misdemeanor possession and misdemeanor sale of a vapor-releasing substance containing a toxic substance.

28. Felony possession and felony sale of a vapor-releasing substance containing a toxic substance if committed more than five years before the date of applying for a level I fingerprint clearance card.

29. Misdemeanor sale of precursor chemicals.

30. Felony sale of precursor chemicals if committed more than five years before the date of applying for a level I fingerprint clearance card.

31. Misdemeanor possession, misdemeanor use or misdemeanor sale of marijuana, dangerous drugs or narcotic drugs.

32. Felony possession, felony use or felony sale of marijuana, dangerous drugs or narcotic drugs if committed more than five years before the date of applying for a level I fingerprint clearance card.

33. Misdemeanor manufacture or misdemeanor distribution of an imitation controlled substance.

34. Felony manufacture or felony distribution of an imitation controlled substance if committed more than five years before the date of applying for a level I fingerprint clearance card.

35. Misdemeanor manufacture or misdemeanor distribution of an imitation prescription-only drug.

36. Felony manufacture or felony distribution of an imitation prescription-only drug if committed more than five years before the date of applying for a level I fingerprint clearance card.

37. Misdemeanor manufacture or misdemeanor distribution of an imitation over-the-counter drug.

38. Felony manufacture or felony distribution of an imitation over-the-counter drug if committed more than five years before the date of applying for a level I fingerprint clearance card.

39. Misdemeanor possession or misdemeanor possession with intent to use an imitation controlled substance.

40. Felony possession or felony possession with intent to use an imitation controlled substance if committed more than five years before the date of applying for a level I fingerprint clearance card.

41. Misdemeanor possession or misdemeanor possession with intent to use an imitation prescription-only drug.

42. Felony possession or felony possession with intent to use an imitation prescription-only drug if committed more than five years before the date of applying for a level I fingerprint clearance card.

43. Misdemeanor possession or misdemeanor possession with intent to use an imitation over-the-counter drug.

44. Felony possession or felony possession with intent to use an imitation over-the-counter drug if committed more than five years before the date of applying for a level I fingerprint clearance card.

45. Misdemeanor manufacture of certain substances and drugs by certain means.

46. Felony manufacture of certain substances and drugs by certain means if committed more than five years before the date of applying for a level I fingerprint clearance card.

47. Adding poison or other harmful substance to food, drink or medicine.

48. A criminal offense involving criminal trespass under title 13, chapter 15.

49. A criminal offense involving burglary under title 13, chapter 15.

50. A criminal offense under title 13, chapter 23, except terrorism.

51. Misdemeanor offenses involving child neglect.

52. Misdemeanor offenses involving contributing to the delinquency of a minor.

53. Misdemeanor offenses involving domestic violence as defined in section 13-3601.

54. Felony offenses involving domestic violence if the offense only involved criminal damage in an amount of more than two hundred fifty dollars but less than one thousand dollars and the offense was committed before June 29, 2009.

55. Arson.

56. Felony offenses involving sale, distribution or transportation of, offer to sell, transport or distribute or conspiracy to sell, transport or distribute marijuana, dangerous drugs or narcotic drugs if committed more than five years before the date of applying for a level I fingerprint clearance card.

57. Criminal damage.

58. Misappropriation of charter school monies as prescribed in section 13-1818.

59. Taking identity of another person or entity.

60. Aggravated taking identity of another person or entity.

61. Trafficking in the identity of another person or entity.

62. Cruelty to animals.

63. Prostitution, as prescribed in section 13-3214.

64. Sale or distribution of material harmful to minors through vending machines as prescribed in section 13-3513.

65. Welfare fraud.

66. Any felony offense in violation of title 13, chapter 12 if committed more than five years before the date of applying for a level I fingerprint clearance card.

67. Kidnapping.

68. Robbery, aggravated robbery or armed robbery.

D. A person who is awaiting trial on or who has been convicted of committing or attempting to commit a misdemeanor violation of section 28-1381, 28-1382 or 28-1383 in this state or the same or a similar offense in another state or jurisdiction within five years from the date of applying for a level I fingerprint clearance card is precluded from driving any vehicle to transport employees or clients of the employing agency as part of the person's employment. The division shall place a notation on the level I fingerprint clearance card that indicates this driving restriction. This subsection does not preclude a person from driving a vehicle alone as part of the person's employment.

E. Notwithstanding subsection C of this section, on receiving written notice from the board of fingerprinting that a good cause exception was granted pursuant to section 41-619.55, the fingerprinting division shall issue a level I fingerprint clearance card to the applicant.

F. If the fingerprinting division denies a person's application for a level I fingerprint clearance card pursuant to subsection C of this section and a good cause exception is requested pursuant to section 41-619.55, the fingerprinting division shall release, on request by the board of fingerprinting, the person's criminal history record to the board of fingerprinting.

G. A person shall be granted a level I fingerprint clearance card pursuant to this section if either of the following applies:

1. An agency granted a good cause exception before August 16, 1999 and no new precluding offense is identified. The fingerprint clearance card shall specify only the program that granted the good cause exception.  On the request of the applicant, the agency that granted the prior good cause exception shall notify the fingerprinting division in writing of the date on which the prior good cause exception was granted, the date of the conviction and the name of the offense for which the good cause exception was granted.

2. The board granted a good cause exception and no new precluding offense is identified.

H. The licensee or contract provider shall assume the costs of fingerprint checks conducted pursuant to this section and may charge these costs to persons who are required to be fingerprinted.

I. A person who is under eighteen years of age or who is at least ninety-nine years of age is exempt from the level I fingerprint clearance card requirements of this section.  At all times the person shall be under the direct visual supervision of personnel who have valid level I fingerprint clearance cards.

J. The fingerprinting division shall conduct periodic state criminal history records checks and may conduct federal criminal history records checks when authorized pursuant to federal law for the purpose of updating the clearance status of current level I fingerprint clearance cardholders pursuant to this section and may notify the board of fingerprinting and the agency of the results of the records check.

K. The fingerprinting division shall revoke a person's level I fingerprint clearance card on receipt of a written request for revocation from the board of fingerprinting pursuant to section 41-619.55.

L. If a person's criminal history record contains an offense listed in subsection B or C of this section and the final disposition is not recorded on the record, the division shall conduct research to obtain the disposition within thirty business days after receipt of the record.  If the division cannot determine, within thirty business days after receipt of the person's state and federal criminal history record information, whether the person is awaiting trial on or has been convicted of committing or attempting, soliciting, facilitating or conspiring to commit any of the offenses listed in subsection B or C of this section in this state or the same or a similar offense in another state or jurisdiction, the division shall not issue a level I fingerprint clearance card to the person. If the division is unable to make the determination required by this section and does not issue a level I fingerprint clearance card to a person, the person may request a good cause exception pursuant to section 41-619.55.

M. If after conducting a state and federal criminal history records check the fingerprinting division determines that it is not authorized to issue a level I fingerprint clearance card to an applicant, the division shall notify the agency that the fingerprinting division is not authorized to issue a level I fingerprint clearance card.  This notice shall include the criminal history information on which the denial was based. This criminal history information is subject to dissemination restrictions pursuant to section 41-1750 and Public Law 92-544.

N. The fingerprinting division is not liable for damages resulting from:

1. The issuance of a level I fingerprint clearance card to an applicant who is later found to have been ineligible to receive a level I fingerprint clearance card at the time the card was issued.

2. The denial of a level I fingerprint clearance card to an applicant who is later found to have been eligible to receive a level I fingerprint clearance card at the time issuance of the card was denied.

O. Notwithstanding any law to the contrary, an individual may apply for and receive a level I fingerprint clearance card pursuant to this section to satisfy a requirement that the person have a valid fingerprint clearance card issued pursuant to section 41-1758.03.

P. Notwithstanding any law to the contrary, except as prescribed pursuant to subsection Q of this section, an individual who receives a level I fingerprint clearance card pursuant to this section also satisfies a requirement that the individual have a valid fingerprint clearance card issued pursuant to section 41-1758.03.

Q. Unless a cardholder commits an offense listed in subsection B or C of this section after June 29, 2009, a fingerprint clearance card issued pursuant to section 41-1758.03 before June 29, 2009 and its renewals are valid for all requirements for a level I fingerprint clearance card except those relating to the requirements of section 8-105 or 8-509. A fingerprint clearance card issued before June 29, 2009 to meet the requirements of section 8-105 or 8-509 and its renewals are valid after June 29, 2009 to meet all requirements for a level I fingerprint clearance card, including the requirements of section 8-105 or 8-509, if the cardholder has been certified by the court to adopt or has been issued a foster home license before June 29, 2009.

R. The issuance of a level I fingerprint clearance card does not entitle a person to employment.

S. For the purposes of this section:

1. "Person" means a person who is fingerprinted pursuant to:

(a) Section 8-105, 8-463, 8-509, 8-802, 17-215, 36-207, 36-594.01, 36-594.02, 36-882, 36-883.02, 36-897.01, 36-897.03, 41-619.52, 41-619.53, 41-1964, 41-1967.01, 41-1968, 41-1969 or 46-141.

(b) Subsection O of this section.

2. "Renewal" means the issuance of a fingerprint clearance card to an existing fingerprint clearance cardholder who applies before the person's existing fingerprint clearance card expires.