Bill Text: MI HB4656 | 2023-2024 | 102nd Legislature | Introduced
Bill Title: Criminal procedure: bail; criteria a court must consider before imposing certain conditions of release and due process hearing related to pretrial detention; provide for. Amends sec. 6b, ch. V of 1927 PA 175 (MCL 765.6b) & adds sec. 6f to ch. V. TIE BAR WITH: HB 4655'23
Spectrum: Partisan Bill (Democrat 22-1)
Status: (Introduced) 2023-05-25 - Bill Electronically Reproduced 05/24/2023 [HB4656 Detail]
Download: Michigan-2023-HB4656-Introduced.html
HOUSE BILL NO. 4656
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending section 6b of chapter V (MCL 765.6b), as amended by 2014 PA 316, and by adding section 6f to chapter V.
the people of the state of michigan enact:
Sec. 6b. (1) A judge or district court magistrate may release a defendant under this subsection subject to conditions reasonably necessary for the protection of 1 or more named persons. If a judge or district court magistrate releases a defendant under this subsection subject to protective conditions, subject to conditions in excess of the standard conditions listed in section 6 of this chapter, including, but not limited to, conditions reasonably necessary for the protection of 1 or more reasonably identifiable persons or the community at large, the judge or district court magistrate shall make a finding of the need for protective the conditions and inform the defendant on the record, either orally or by a writing that is personally delivered to the defendant, of the specific conditions imposed and that if the defendant violates a condition of release, he or she the defendant will be subject to arrest without a warrant and may have his or her bail forfeited or revoked and new conditions of release imposed, in addition to the penalty provided under section 3f of chapter XI and any other penalties that may be imposed if the defendant is found in contempt of court. Before imposing a condition under this section, the court shall do both of the following:
(a) Consider whether a referral to the relevant pretrial services agency to provide support and supervision would be sufficient to address any pretrial risks posed by the defendant, and, if sufficient, refer the defendant to the pretrial services agency.
(b) State on the record the reasoning for imposing each condition, including an explanation indicating the reason the condition is necessary and why it is the least restrictive means of addressing any risk posed by the defendant's release.
(2) If the court imposes a condition that constitutes a significant liberty restraint, the defendant may request a hearing to reevaluate the condition after being in compliance with the condition for not less than 60 days.
(3) Upon request by the defendant under subsection (2), the court must conduct a hearing to reevaluate the condition that constitutes a significant liberty restraint.
(4) Unless 1 or more of the following circumstances apply, there is a rebuttable presumption that a significant liberty restraint must be discontinued if the defendant has demonstrated compliance with the significant liberty restraint for not less than 60 days:
(a) The defendant is charged with an assaultive crime.
(b) The defendant is charged with a listed offense.
(c) The defendant is charged with an offense related to domestic violence.
(5) The prosecutor of the case may overcome the presumption under subsection (4) if the prosecutor shows the significant liberty restraint remains necessary by clear and convincing evidence, notwithstanding the defendant's compliance with it, to prevent the defendant from absconding or to address a risk of personal harm to another reasonably identifiable person or harm to the community at large.
(6) Nothing in subsection (2), (3), (4), or (5) prevents the court from reevaluating, amending, or discontinuing conditions at the court's discretion.
(7) (2) An order or amended order issued under subsection (1) shall must contain all of the following:
(a) A statement of the defendant's full name.
(b) A statement of the defendant's height, weight, race, sex, date of birth, hair color, eye color, and any other identifying information the judge or district court magistrate considers appropriate.
(c) A statement of the date the conditions become effective.
(d) A statement of the date on which the order will expire.
(e) A statement of the conditions imposed.
(f) A statement of the necessity of each condition imposed.
(8) (3) An order or amended order issued under this subsection and subsection (1) may impose a condition that the defendant not purchase or possess a firearm. However, if the court orders the defendant to carry or wear an electronic monitoring device as a condition of release as described in subsection (6), (9), the court shall also impose a condition that the defendant not purchase or possess a firearm.
(4) The judge or district court magistrate shall immediately direct the issuing court or a law enforcement agency within the jurisdiction of the court, in writing, to enter an order or amended order issued under subsection (1) or subsections (1) and (3) into LEIN. If the order or amended order is rescinded, the judge or district court magistrate shall immediately order the issuing court or law enforcement agency to remove the order or amended order from LEIN.
(5) The issuing court or a law enforcement agency within the jurisdiction of the court shall immediately enter an order or amended order into LEIN or shall remove the order or amended order from the law enforcement information network upon expiration of the order or as directed by the court under subsection (4).
(9) (6) If a The court may order a defendant to wear an electronic monitoring device for the purpose of location monitoring only if both of the following circumstances apply:
(a) The defendant who is charged with a crime involving domestic violence, or any other assaultive crime, is released under this subsection and subsection (1), the judge or district court magistrate may order the defendant to wear an electronic monitoring device as a condition of release. or a listed offense.
(b) The court finds by clear and convincing evidence that the defendant poses a risk of absconding or of personal harm to another reasonably identifiable person or harm to the community at large.
(10) With the informed consent of the victim, the court may also order the defendant to provide the victim of the charged crime with an electronic receptor device capable of receiving the global positioning system information from the electronic monitoring device worn by the defendant that notifies the victim if the defendant is located within a proximity to the victim as determined by the judge or district court magistrate in consultation with the victim. The victim shall must also be furnished with a telephone contact with the local law enforcement agency to request immediate assistance if the defendant is located within that proximity to the victim. In addition, the victim may provide the court with a list of areas from which he or she the victim would like the defendant excluded. The court shall consider the victim's request and shall determine which areas the defendant shall must be prohibited from accessing. The court shall instruct the entity monitoring the defendant's position to notify the proper authorities if the defendant violates the order. In determining whether to order a defendant to wear an electronic monitoring device for the purpose of location monitoring, the court shall consider the likelihood that the defendant's participation in electronic monitoring will deter the defendant from seeking to kill, physically injure, stalk, or otherwise threaten the victim prior to before trial. The victim may request the court to terminate the victim's participation in the monitoring of the defendant at any time. The court shall not impose sanctions on the victim for refusing to participate in monitoring under this subsection. A defendant described in this subsection shall only be released if he or she agrees to pay the cost of the device and any monitoring as a condition of release or to perform community service work in lieu of paying that cost. An electronic monitoring device ordered to be worn under this subsection shall must provide reliable notification of removal or tampering. As used in this subsection, :
(a) "Assaultive crime" means that term as defined in section 9a of chapter X.
(b) "Domestic violence" means that term as defined in section 1 of 1978 PA 389, MCL 400.1501.
(c) "Electronic monitoring device" includes any electronic device or instrument that is used to track the location of an individual or to monitor an individual's blood alcohol content, but does not include any technology that is implanted or violates the corporeal body of the individual.
(d) "Informed "informed consent" means that the victim was given information concerning all of the following before consenting to participate in electronic monitoring:
(a) (i) The victim's right to refuse to participate in that monitoring and the process for requesting the court to terminate the victim's participation after it has been ordered.
(b) (ii) The manner in which the monitoring technology functions and the risks and limitations of that technology, and the extent to which the system will track and record the victim's location and movements.
(c) (iii) The boundaries imposed on the defendant during the monitoring program.
(d) (iv) Sanctions that the court may impose on the defendant for violating an order issued under this subsection.
(e) (v) The procedure that the victim is to follow if the defendant violates an order issued under this subsection or if monitoring equipment fails to operate properly.
(f) (vi) Identification of support services available to assist the victim to develop a safety plan to use if the court's order issued under this subsection is violated or if the monitoring equipment fails to operate properly.
(g) (vii) Identification of community services available to assist the victim in obtaining shelter, counseling, education, child care, legal representation, and other help in addressing the consequences and effects of domestic violence.
(h) (viii) The nonconfidential nature of the victim's communications with the court concerning electronic monitoring and the restrictions to be imposed upon the defendant's movements.
(11) If an order in excess of the standard conditions of release listed in section 6 of this chapter includes a no-contact order, electronic monitoring imposed under subsection (9), or another condition required for the protection of 1 or more named persons, the judge or district court magistrate shall immediately direct the issuing court or a law enforcement agency within the jurisdiction of the court, in writing, to enter such an order or amended order into LEIN. The entry into LEIN required under this subsection must include the statement of the conditions imposed under the order. If the order or amended order is rescinded, the judge or district court magistrate must immediately order the issuing court or law enforcement agency to remove the order or amended order from LEIN.
(12) The issuing court or a law enforcement agency within the jurisdiction of the court must immediately enter an order or amended order into LEIN or must remove the order or amended order from LEIN upon expiration of the order or as directed by the court under subsection (11).
(13) (7) A judge or district court magistrate may release under this subsection a defendant subject to conditions reasonably necessary for the protection of the public if the defendant has submitted to a preliminary roadside analysis that detects the presence of alcoholic liquor, a controlled substance, or other intoxicating substance, or any combination of them, and that a subsequent chemical test is pending. The judge or district court magistrate shall inform the defendant on the record, either orally or by a writing that is personally delivered to the defendant, of all of the following:
(a) That if the defendant is released under this subsection, he or she the defendant shall not operate a motor vehicle under the influence of alcoholic liquor, a controlled substance, or another intoxicating substance, or any combination of them, as a condition of release.
(b) That if the defendant violates the condition of release under subdivision (a), he or she the defendant will be subject to arrest without a warrant, shall have his or her bail forfeited or revoked, and shall not be released from custody prior to arraignment.
(14) (8) The judge or district court magistrate shall immediately direct the issuing court or a law enforcement agency within the jurisdiction of the court, in writing, to enter an order or amended order issued under subsection (7) (13) into LEIN. If the order or amended order is rescinded, the judge or district court magistrate shall immediately order the issuing court or law enforcement agency to remove the order or amended order from LEIN.
(15) (9) The issuing court or a law enforcement agency within the jurisdiction of the court shall immediately enter an order or amended order into LEIN. If the order or amended order is rescinded, the court or law enforcement agency shall immediately remove the order or amended order from LEIN upon expiration of the order under subsection (8).(13).
(16) (10) This Except for the limitations on the use of significant liberty restraints, this section does not limit the authority of judges or district court magistrates to impose protective or other release conditions under other applicable statutes or court rules. , including ordering a defendant to wear an electronic monitoring device.
(17) (11) As used in this section: ,
(a) "Assaultive crime" includes any of the following:
(i) A violation described in section 9a of chapter X.
(ii) A violation of chapter XI of the Michigan penal code, 1931 PA 328, MCL 750.81 to 750.90h, not otherwise included in subparagraph (i).
(iii) A violation of section 110a, 136b, 234a, 234b, 234c, 349b, or 411h of the Michigan penal code, 1931 PA 328, MCL 750.110a, 750.136b, 750.234a, 750.234b, 750.234c, 750.349b, and 750.411h, or any other felony which involves a violent act or threat of a violent act against any other person.
(b) "Clear and convincing" means that the evidence is highly and substantially more likely to be true than untrue. This standard of proof requires that the fact finder must be convinced that the contention is highly probable. Clear and convincing evidence may be established by any of the following:
(i) Established past conduct.
(ii) Testimony, including hearsay testimony, from a reliable witness.
(iii) Review of police reports, witness statements, criminal history information, or any other documentation in court records.
(c) "Domestic violence" means that term as defined in section 1 of 1978 PA 389, MCL 400.1501.
(d) "Electronic monitoring device" includes any electronic device or instrument that is used to monitor the location of a person or to monitor or detect a person's blood alcohol content. A condition of release must not include any technology that is implanted or violates the corporeal body of the person.
(e) "Harm to the community at large" means that clear and convincing evidence demonstrates that the defendant's conduct would likely result in personal harm to another person, even if that person cannot be specifically identified.
(f) "LEIN" means the law enforcement information network regulated under the C.J.I.S. policy council act, 1974 PA 163, MCL 28.211 to 28.215, or by the department of state police.
(g) "Listed offense" means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722.
(h) "No-contact order" means an order of the court requiring a defendant to stay away from or have no contact with a specific person or location.
(i) "Personal harm" means bodily injury or emotional distress, as defined in section 411h of the Michigan penal code, 1931 PA 328, MCL 750.411h, that can be specifically articulated on the record.
(j) "Significant liberty restraint" means any condition that requires drug or alcohol testing, electronic monitoring, or in-person reporting outside of regularly scheduled court events. Significant liberty restraint does not include a no-contact order.
Sec. 6f. (1) If, as the result of a pretrial release decision, a defendant remains incarcerated 48 hours after the pretrial release decision is made, defense counsel or the prosecuting attorney may petition the court to conduct a due process hearing within 48 hours of the petition as provided in this section. The standard of review at a hearing conducted under this section must be de novo.
(2) All of the following apply to a due process hearing under this section:
(a) If available, the judge who is assigned to preside over the case after arraignment shall preside over the due process hearing.
(b) The scope of the hearing must be limited to the pretrial release decision, including any monetary or nonmonetary conditions of release.
(c) The defendant has a right to be represented by counsel, review evidence the prosecutor may introduce before the hearing, present evidence, and proffer information.
(d) The defendant has a right to present and cross-examine witnesses, except the defendant may not call adversarial witnesses, including, but not limited to, any victim or victims in the case.
(e) The rules of evidence of this state do not apply.
(f) Statements made at the hearing by the defendant are not admissible for the purpose of proving the defendant's guilt in a subsequent proceeding but may be admissible for impeachment purposes.
(3) The court shall not issue an order for pretrial detention or continue a condition of release that results in detention of the defendant before trial at the due process hearing unless the court finds on the record by clear and convincing evidence that the defendant poses a risk of absconding or causing personal harm to another reasonably identifiable person or the community at large and that no less restrictive conditions can reasonably address the risk.
(4) As used in this section:
(a) "Clear and convincing" means that the evidence is highly and substantially more likely to be true than untrue. This standard of proof requires that the fact finder must be convinced that the contention is highly probable. Clear and convincing evidence may be established by any of the following:
(i) Established past conduct.
(ii) Testimony, including hearsay testimony, from a reliable witness.
(iii) Review of police reports, witness statements, criminal history information, or any other documentation in court records.
(b) "Harm to the community at large" means that clear and convincing evidence demonstrates that the defendant's conduct would likely result in personal harm to another person, even if that person cannot be specifically identified.
(c) "Personal harm" means bodily injury or emotional distress as defined in section 411h of the Michigan penal code, 1931 PA 328, MCL 750.411h, that can be specifically articulated on the record.
Enacting section 1. This amendatory act takes effect January 1, 2025.
Enacting section 2. This amendatory act does not take effect unless Senate Bill No.____ or House Bill No. 4655 (request no. 00502'23) of the 102nd Legislature is enacted into law.
