February 5, 2013, Introduced by Reps. Oakes, Haveman, MacMaster, Muxlow, Santana, Kandrevas, McCann, Robinson, Hobbs, Geiss, Howrylak, Banks, Kowall, Dillon, Lipton, Cavanagh and O'Brien and referred to the Committee on Criminal Justice.
A bill to amend 1965 PA 213, entitled
"An act to provide for setting aside the conviction in certain
criminal cases; to provide for the effect of such action; to
provide for the retention of certain nonpublic records and their
use; to prescribe the powers and duties of certain public agencies
and officers; and to prescribe penalties,"
by amending sections 1, 3, and 4 (MCL 780.621, 780.623, and
780.624), section 1 as amended by 2011 PA 64, section 3 as amended
by 1994 PA 294, and section 4 as added by 1982 PA 495.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
1. (1) Except as provided in subsection (2), this
section,
a person who is convicted of not
more than 1 offense may
file an application with the convicting court for the entry of an
order
setting aside the conviction. A person who is otherwise
eligible
to file an application under this section is not rendered
ineligible
by virtue of being convicted of not more than 2 minor
offenses
in addition to the offense for which the person files an
application.1 or more convictions as follows:
(a) A person who is convicted of not more than 1 felony
offense and not more than 2 misdemeanor offenses may petition the
convicting court to set aside the felony offense. For purposes of
eligibility only under this subdivision, a traffic offense does not
constitute a misdemeanor, except for a violation of operating while
intoxicated.
(b) A person who is convicted of not more than 2 misdemeanor
offenses and no other felony or misdemeanor offenses may petition
the convicting court or the convicting courts to set aside 1 or
both of the misdemeanor convictions. For purposes of eligibility
only under this subdivision, a traffic offense does not constitute
a misdemeanor, except for a violation of operating while
intoxicated.
(2) An action dismissed under 1 of the following shall be
considered a misdemeanor conviction under subsection (1):
(a) Section 703 of the Michigan liquor control code of 1998,
1998 PA 58, MCL 436.1703.
(b) Section 1070(1)(b)(i) of the revised judicature act of
1961, 1961 PA 236, MCL 600.1070.
(c) Section 13 of chapter II or section 4a of chapter IX of
the code of criminal procedure, 1927 PA 175, MCL 762.13 and 769.4a.
(d) Section 7411 of the public health code, 1978 PA 368, MCL
333.7411.
(e) Section 350a or 430 of the Michigan penal code, 1931 PA
328, MCL 750.350a and 750.430.
(f) Any other law of this state or of a political subdivision
of this state similar to those listed in this subsection that
provides for the deferral and dismissal of a felony or misdemeanor
charge.
(3) (2)
A person shall not apply to have
set aside, and a
judge
shall not set aside, a conviction for a any of the following:
(a) A felony for which the maximum punishment is life
imprisonment or an attempt to commit a felony for which the maximum
punishment
is life imprisonment. , a conviction for a
(b) A violation or attempted violation of section 145c, 145d,
520c, 520d, or 520g of the Michigan penal code, 1931 PA 328, MCL
750.145c,
750.145d, 750.520c, 750.520d, and 750.520g. , or a
conviction
for a
(c) A traffic offense, including, but not limited to, a
conviction for operating while intoxicated.
(d) A felony in which the victim is a spouse, a former spouse,
an individual with whom the person has had a child in common, an
individual with whom the person has or has had a dating
relationship, or an individual residing or having resided in the
same household as the person, if the person has a prior misdemeanor
conviction in which the victim is a spouse, a former spouse, an
individual with whom the person has had a child in common, an
individual with whom the person has or has had a dating
relationship, or an individual residing or having resided in the
same household as the person.
(4) (3)
An application shall not only be
filed until at least
5
or more years following imposition after whichever of the
following events occurs last:
(a) Imposition of the sentence for the conviction that the
applicant
seeks to set aside. or 5 years following completion of
any
term of imprisonment for that conviction, whichever occurs
later.
(b) Completion of probation imposed for the conviction that
the applicant seeks to set aside.
(c) Discharge from parole imposed for the conviction that the
applicant seeks to set aside.
(d) Completion of any term of imprisonment imposed for the
conviction that the applicant seeks to set aside.
(5) If a petition under this act is denied by the convicting
court, a person shall not file another petition concerning the same
conviction or convictions with the convicting court until 3 years
after the date the convicting court denies the previous petition,
unless the court specifies an earlier date for filing another
petition in the order denying the petition.
(6) (4)
The An application under
this section is invalid
unless it contains the following information and is signed under
oath
by the person whose conviction is or convictions are to be set
aside:
(a) The full name and current address of the applicant.
(b)
A certified record of the each
conviction that is to be
set aside.
(c) A statement that the applicant has not been convicted of
an offense other than the conviction or convictions sought to be
set aside as a result of this application, and not more than 2
minor
offenses, if applicable.nondisqualifying
convictions
described in subsection (2).
(d) A statement listing all actions enumerated in subsection
(2) that were initiated against the applicant and have been
dismissed.
(e) (d)
A statement as to whether the
applicant has previously
filed
an application to set aside this or any other conviction and,
if so, the disposition of the application.
(f) (e)
A statement as to whether the
applicant has any other
criminal charge pending against him or her in any court in the
United States or in any other country.
(g) (f)
A consent to the use of the
nonpublic record created
under section 3 to the extent authorized by section 3.
(7) (5)
The applicant shall submit a copy
of the application
and
2 1 complete sets set of fingerprints to the
department of
state police. The department of state police shall compare those
fingerprints with the records of the department, including the
nonpublic
record created under section 3, and shall forward a an
electronic copy of the complete set of fingerprints to the federal
bureau of investigation for a comparison with the records available
to that agency. The department of state police shall report to the
court in which the application is filed the information contained
in the department's records with respect to any pending charges
against the applicant, any record of conviction of the applicant,
and the setting aside of any conviction of the applicant and shall
report to the court any similar information obtained from the
federal bureau of investigation. The court shall not act upon the
application until the department of state police reports the
information required by this subsection to the court.
(8) (6)
The copy of the application
submitted to the
department
of state police under subsection (5) (7) shall be
accompanied by a fee of $50.00 payable to the state of Michigan
which
that shall be used by the department of state police to
defray the expenses incurred in processing the application.
(9) (7)
A copy of the application shall be
served upon the
attorney
general and upon the office of the each prosecuting
attorney who prosecuted the crime or crimes the applicant seeks to
set aside, and an opportunity shall be given to the attorney
general and to the prosecuting attorney to contest the application.
If
the a conviction was for an assaultive crime or a serious
misdemeanor, the prosecuting attorney shall notify the victim of
the assaultive crime or serious misdemeanor of the application
pursuant to section 22a or 77a of the William Van Regenmorter crime
victim's rights act, 1985 PA 87, MCL 780.772a and 780.827a. The
notice shall be by first-class mail to the victim's last known
address. The victim has the right to appear at any proceeding under
this act concerning that conviction and to make a written or oral
statement.
(10) (8)
Upon the hearing of the application
the court may
require the filing of affidavits and the taking of proofs as it
considers proper.
(11) (9)
If the court determines that the
circumstances and
behavior of the applicant from the date of the applicant's
conviction or convictions to the filing of the application warrant
setting aside the conviction or convictions and that setting aside
the conviction or convictions is consistent with the public
welfare, the court may enter an order setting aside the conviction
or convictions. The setting aside of a conviction or convictions
under this act is a privilege and conditional and is not a right.
(12) (10)
As used in this section:
(a) "Assaultive crime" means that term as defined in section
9a of chapter X of the code of criminal procedure, 1927 PA 175, MCL
770.9a.
(b)
"Minor offense" means a misdemeanor or ordinance violation
for
which the maximum permissible imprisonment does not exceed 90
days,
for which the maximum permissible fine does not exceed
$1,000.00,
and that is committed by a person who is not more than
21
years of age."Felony"
means either of the following, as
applicable:
(i) For purposes of the offense to be set aside, felony means a
violation of a penal law of this state that is punishable by
imprisonment for more than 1 year or that is designated by law to
be a felony.
(ii) For purposes of identifying a prior offense, felony means
a violation of a penal law of this state, of another state, or of
the United States that is punishable by imprisonment for more than
1 year or is expressly designated by law to be a felony.
(c) "Indian tribe" means an Indian tribe, Indian band, or
Alaskan native village that is recognized by federal law or
formally acknowledged by a state.
(d) "Misdemeanor" means a violation of any of the following:
(i) A penal law of this state, another state, an Indian tribe,
or the United States that is not a felony.
(ii) An order, rule, or regulation of a state agency that is
punishable by imprisonment for not more than 1 year or a fine that
is not a civil fine, or both.
(iii) A local ordinance of a political subdivision of this state
substantially corresponding to a crime listed in subparagraph (i) or
(ii) that is not a felony.
(iv) A violation of the law of another state or political
subdivision of another state substantially corresponding to a crime
listed under subparagraph (i) or (ii) that is not a felony.
(v) A violation of the law of the United States substantially
corresponding to a crime listed under subparagraph (i) or (ii) that
is not a felony.
(e) "Operating while intoxicated" means a violation of any of
the following:
(i) Section 625 or 625m of the Michigan vehicle code, 1949 PA
300, MCL 257.625 and 257.625m.
(ii) A local ordinance substantially corresponding to a
violation listed in subparagraph (i).
(iii) A law of an Indian tribe substantially corresponding to a
violation listed in subparagraph (i).
(iv) A law of another state substantially corresponding to a
violation listed in subparagraph (i).
(v) A law of the United States substantially corresponding to
a violation listed in subparagraph (i).
(f) (c)
"Serious misdemeanor"
means that term as defined in
section 61 of the William Van Regenmorter crime victim's rights
act, 1985 PA 87, MCL 780.811.
(g) (d)
"Victim" means that term
as defined in section 2 of
the William Van Regenmorter crime victim's rights act, 1985 PA 87,
MCL 780.752.
Sec.
3. (1) Upon the entry of an order pursuant to under
section 1, the court shall send a copy of the order to the
arresting agency and the department of state police.
(2) The department of state police shall retain a nonpublic
record of the order setting aside a conviction and of the record of
the arrest, fingerprints, conviction, and sentence of the applicant
in the case to which the order applies. Except as provided in
subsection (3), this nonpublic record shall be made available only
to a court of competent jurisdiction, an agency of the judicial
branch of state government, the department of corrections, a law
enforcement agency, a prosecuting attorney, the attorney general,
or the governor upon request and only for the following purposes:
(a) Consideration in a licensing function conducted by an
agency of the judicial branch of state government.
(b) To show that a person who has filed an application to set
aside a conviction has previously had a conviction set aside
pursuant
to under this act.
(c) The court's consideration in determining the sentence to
be imposed upon conviction for a subsequent offense that is
punishable as a felony or by imprisonment for more than 1 year.
(d) Consideration by the governor if a person whose conviction
has been set aside applies for a pardon for another offense.
(e) Consideration by the department of corrections or a law
enforcement agency if a person whose conviction has been set aside
applies for employment with the department of corrections or law
enforcement agency.
(f) Consideration by a court, law enforcement agency,
prosecuting attorney, or the attorney general in determining
whether an individual required to be registered under the sex
offenders registration act, 1994 PA 295, MCL 28.721 to 28.736, has
violated that act, or for use in a prosecution for violating that
act.
(3) A copy of the nonpublic record created under subsection
(2) shall be provided to the person whose conviction is set aside
under this act upon payment of a fee determined and charged by the
department of state police in the same manner as the fee prescribed
in
section 4 of the freedom of information act, Act No. 442 of the
Public
Acts of 1976, being section 15.234 of the Michigan Compiled
Laws
1976 PA 442, MCL 15.234.
(4) The nonpublic record maintained under subsection (2) is
exempt
from disclosure under the freedom of information act, Act
No.
442 of the Public Acts of 1976, being sections 15.231 to 15.246
of
the Michigan Compiled Laws 1976
PA 442, MCL 15.231 to 15.246.
(5) Except as provided in subsection (2), a person, other than
the applicant, who knows or should have known that a conviction was
set aside under this section and who divulges, uses, or publishes
information concerning a conviction set aside under this section is
guilty of a misdemeanor punishable by imprisonment for not more
than 90 days or a fine of not more than $500.00, or both.
Sec. 4. A person may have only 1 felony conviction or not more
than
2 misdemeanor convictions set aside under
this act as provided
in section 1.