Bill Text: MI HB4405 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Criminal procedure; expunction; record expunction for certain offenders; provide for. Amends secs. 1, 3 & 4 of 1965 PA 213 (MCL 780.621 et seq.).

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced - Dead) 2009-05-13 - Referred To Second Reading [HB4405 Detail]

Download: Michigan-2009-HB4405-Introduced.html

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HOUSE BILL No. 4405

 

February 24, 2009, Introduced by Reps. Coulouris, Johnson, Sheltrown, Warren and Robert Jones and referred to the Committee on Judiciary.

 

     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 2002 PA 472, 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. 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 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).

 

     (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 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).

 

     (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

 

     (b) A conviction for a violation or attempted violation of

 

section 520c, 520d, or 520g of the Michigan penal code, 1931 PA

 

328, MCL 750.520c, 750.520d, and 750.520g. , or a

 

     (c) A conviction for a traffic offense.

 

     (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.

 

     (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 the

 

applicant seeks to set aside.

 

     (b) Completion of probation imposed for the conviction that

 

the applicant seeks to set aside. or 5 years following completion

 

     (c) Discharge from parole imposed for the conviction that the

 

applicant seeks to set aside.

 

     (d) Completion of any term of imprisonment imposed for that

 

the conviction , whichever occurs later that the applicant seeks to

 

set aside.

 

     (4) 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 convicting court denies the previous petition.

 

     (5) (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 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 one conviction or convictions sought to

 

be set aside as a result of this application and any

 

nondisqualifying convictions described in this section.

 

     (d) A statement listing all actions enumerated in subsection

 

(12) 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 conviction or these

 

convictions 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.

 

     (6) (5) The applicant shall submit a copy of the application

 

and 2 complete sets 1 complete 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.

 

     (7) (6) The copy of the application submitted to the

 

department of state police under subsection (5) (6) 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.

 

     (8) (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.

 

     (9) (8) Upon the hearing of the application the court may

 

require the filing of affidavits and the taking of proofs as it

 

considers proper.

 

     (10) (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, at the court's discretion 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.

 

     (11) A person who is convicted of more than 1 misdemeanor for

 

any of the following shall not apply to set aside, and a judge

 

shall not set aside, a conviction for violating or attempting to

 

violate any of the following:

 

     (a) A crime in which the victim was a spouse, a former spouse,

 

an individual with whom he or she has had a child in common, an

 

individual with whom he or she has or has had a dating

 

relationship, or an individual residing or having resided in the

 

same household.

 

     (b) Section 81, 81a, 81c, 90b, 136b, 335a, or 411h(2)(a) of

 

the Michigan penal code, 1931 PA 328, MCL 750.81, 750.81a, 750.81c,

 

750.90b, 750.136b, 750.335a, and 750.411h.

 

     (12) A person shall not apply to set aside, and a judge shall

 

not set aside, any conviction if the person is convicted of 2

 

misdemeanors and has had an action dismissed under 1 of the

 

following:

 

     (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, section 4a of chapter IX, or

 

section 1 of chapter XI of the code of criminal procedure, 1927 PA

 

175, MCL 762.13, 769.4a, and 771.1.

 

     (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.

 

     (13) (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) "Dating relationship" means that term as defined in

 

section 2950 of the revised judicature act of 1961, 1961 PA 236,

 

MCL 600.2950.

 

     (c) "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. However, this definition does not apply to

 

subsection (1) for purposes of eligibility.

 

     (d) "Indian tribe" means an Indian tribe, Indian band, or

 

Alaskan native village that is recognized by federal law or

 

formally acknowledged by a state.

 

     (e) "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.

 

     (f) (b) "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) (c) "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 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 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.