Bill Text: MI HB4538 | 2017-2018 | 99th Legislature | Introduced
Bill Title: Criminal procedure; pretrial procedure; expunction and destruction of biometric data; eliminate certain exceptions. Amends sec. 3 of 1925 PA 289 (MCL 28.243). TIE BAR WITH: HB 4536'17, HB 4537'17
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2018-03-14 - Assigned Pa 67'18 With Immediate Effect [HB4538 Detail]
Download: Michigan-2017-HB4538-Introduced.html
HOUSE BILL No. 4538
April 26, 2017, Introduced by Rep. Lucido and referred to the Committee on Law and Justice.
A bill to amend 1925 PA 289, entitled
"An act to create and maintain a fingerprint identification and
criminal history records division within the department of state
police; to require peace officers, persons in charge of certain
institutions, and others to make reports respecting juvenile
offenses, crimes, and criminals to the state police; to require the
fingerprinting of an accused by certain persons; and to provide
penalties and remedies for a violation of this act,"
by amending section 3 (MCL 28.243), as amended by 2012 PA 374.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3. (1) Except as provided in subsection (3), upon the
arrest of a person for a felony or for a misdemeanor violation of
state law for which the maximum possible penalty exceeds 92 days'
imprisonment or a fine of $1,000.00, or both, or a misdemeanor
authorized for DNA collection under section 6(1)(b) of the DNA
identification profiling system act, 1990 PA 250, MCL 28.176, or
for criminal contempt under section 2950 or 2950a of the revised
judicature act of 1961, 1961 PA 236, MCL 600.2950 and 600.2950a, or
criminal contempt for a violation of a foreign protection order
that satisfies the conditions for validity provided in section
2950i of the revised judicature act of 1961, 1961 PA 236, MCL
600.2950i, or for a juvenile offense, other than a juvenile offense
for which the maximum possible penalty does not exceed 92 days'
imprisonment or a fine of $1,000.00, or both, or for a juvenile
offense that is a misdemeanor authorized for DNA collection under
section 6(1)(b) of the DNA identification profiling system act,
1990 PA 250, MCL 28.176, the arresting law enforcement agency in
this state shall collect the person's biometric data and forward
the biometric data to the department within 72 hours after the
arrest. The biometric data shall be sent to the department on forms
furnished by or in a manner prescribed by the department, and the
department shall forward the biometric data to the director of the
federal
bureau Federal Bureau of investigation Investigation on
forms furnished by or in a manner prescribed by the director.
(2) A law enforcement agency shall collect a person's
biometric data under this subsection if the person is arrested for
a misdemeanor violation of state law for which the maximum penalty
is 93 days or for criminal contempt under section 2950 or 2950a of
the revised judicature act of 1961, 1961 PA 236, MCL 600.2950 and
600.2950a, or criminal contempt for a violation of a foreign
protection order that satisfies the conditions for validity
provided in section 2950i of the revised judicature act of 1961,
1961 PA 236, MCL 600.2950i, if the biometric data have not
previously been collected and forwarded to the department under
subsection (1). A law enforcement agency shall collect a person's
biometric data under this subsection if the person is arrested for
a violation of a local ordinance for which the maximum possible
penalty is 93 days' imprisonment and that substantially corresponds
to a violation of state law that is a misdemeanor for which the
maximum possible term of imprisonment is 93 days. If the person is
convicted of any violation, the law enforcement agency shall
collect the person's biometric data before sentencing if not
previously collected. The court shall forward to the law
enforcement agency a copy of the disposition of conviction, and the
law enforcement agency shall forward the person's biometric data
and the copy of the disposition of conviction to the department
within 72 hours after receiving the disposition of conviction in
the same manner as provided in subsection (1). If the person is
convicted of violating a local ordinance, the law enforcement
agency shall indicate on the form sent to the department the
statutory citation for the state law to which the local ordinance
substantially corresponds.
(3) A person's biometric data are not required to be collected
and forwarded to the department under subsection (1) or (2) solely
because he or she has been arrested for violating section 904(3)(a)
of the Michigan vehicle code, 1949 PA 300, MCL 257.904, or a local
ordinance substantially corresponding to section 904(3)(a) of the
Michigan vehicle code, 1949 PA 300, MCL 257.904.
(4) The arresting law enforcement agency may collect the
biometric data of a person who is arrested for a misdemeanor
punishable by imprisonment for not more than 92 days or a fine of
not more than $1,000.00, or both, and who fails to produce
satisfactory evidence of identification as required by section 1 of
1961 PA 44, MCL 780.581. These biometric data shall be forwarded to
the department immediately. Upon completion of the identification
process by the department, the biometric data shall be destroyed.
(5) An arresting law enforcement agency in this state may
collect the person's biometric data upon an arrest for a
misdemeanor other than a misdemeanor described in subsection (1),
(2), or (4), and may forward the biometric data to the department.
(6) If a court orders the collection of a person's biometric
data under section 11 or 18 of chapter XIIA of the probate code of
1939, 1939 PA 288, MCL 712A.11 and 712A.18, or section 29 of
chapter IV or section 1 of chapter IX of the code of criminal
procedure, 1927 PA 175, MCL 764.29 and 769.1, the law enforcement
agency shall forward the biometric data and arrest card to the
department.
(7) If a petition is not authorized for a juvenile accused of
a juvenile offense, if a person arrested for having committed an
offense for which biometric data were collected under this section
is released without a charge made against him or her, or if
criminal contempt proceedings are not brought or criminal charges
are not made against a person arrested for criminal contempt for a
personal protection order violation under section 2950 or 2950a of
the revised judicature act of 1961, 1961 PA 236, MCL 600.2950 and
600.2950a, or criminal contempt for a violation of a foreign
protection order that meets the requirements for validity under
section 2950i of the revised judicature act of 1961, 1961 PA 236,
MCL 600.2950i, the official taking or holding the person's
biometric data and arrest card shall immediately destroy the
biometric data and arrest card. The law enforcement agency shall
notify the department in a manner prescribed by the department that
a petition was not authorized against the juvenile or that a charge
was not made or that a criminal contempt proceeding was not brought
against the arrested person if the juvenile's or arrested person's
arrest card was forwarded to the department.
(8) If an individual is arrested for any crime and the
complaining witness recants his or her statement, affidavit, or
testimony alleging that the individual committed 1 or more offenses
against the witness before trial is held in the matter, and the
charge is dismissed before trial, both of the following apply:
(a) The arrest record, all biometric data, and fingerprints
shall be expunged or destroyed, or both, as appropriate.
(b) Any entry concerning the charge and the individual shall
be removed from the LEIN.
(9) The department shall comply with the requirements listed
in subsection (8) upon receipt of an appropriate order issued by
the district court or the circuit court.
(10) (8)
If a juvenile is adjudicated and
found not to be
within the provisions of section 2(a)(1) of chapter XIIA of the
probate code of 1939, 1939 PA 288, MCL 712A.2, or if an accused is
found not guilty of an offense for which biometric data were
collected under this section, upon final disposition of the charge
against the accused or juvenile, the biometric data and arrest card
shall be destroyed by the official holding those items and the
clerk of the court entering the disposition shall notify the
department of any finding of not guilty or nolle prosequi, if it
appears that the biometric data of the accused were initially
collected under this section, or of any finding that a juvenile
alleged responsible for a juvenile offense is not within the
provisions of section 2(a)(1) of chapter XIIA of the probate code
of 1939, 1939 PA 288, MCL 712A.2.
(11) (9)
Upon final disposition of the
charge against the
accused, the clerk of the court entering the disposition shall
immediately advise the department of the final disposition of the
arrest for which the person's biometric data were collected if a
juvenile was adjudicated to have committed a juvenile offense or if
the accused was convicted of an offense for which the biometric
data of the accused were collected under this section or section
16a of chapter IX of the code of criminal procedure, 1927 PA 175,
MCL 769.16a. With regard to any adjudication or conviction, the
clerk shall transmit to the department information as to any
adjudication or finding of guilty or guilty but mentally ill; any
plea of guilty, nolo contendere, or guilty but mentally ill; the
offense of which the accused was convicted; and a summary of any
deposition or sentence imposed. The summary of the sentence shall
include any probationary term; any minimum, maximum, or alternative
term of imprisonment; the total of all fines, costs, and
restitution ordered; and any modification of sentence. If the
sentence is imposed under any of the following sections, the report
shall so indicate:
(a) Section 7411 of the public health code, 1978 PA 368, MCL
333.7411.
(b) Section 1076(4) of the revised judicature act of 1961,
1961 PA 236, MCL 600.1076.
(c) Sections 11 to 15 of chapter II of the code of criminal
procedure, 1927 PA 175, MCL 762.11 to 762.15.
(d) Section 4a of chapter IX of the code of criminal
procedure, 1927 PA 175, MCL 769.4a.
(e) Section 350a(4) of the Michigan penal code, 1931 PA 328,
MCL 750.350a.
(f)
Section 430(8)(a) 430(9)(a)
of the Michigan penal code,
1931 PA 328, MCL 750.430.
(g)
Section 1209(6) 1209(7) of the revised judicature act of
1961, 1961 PA 236, MCL 600.1209.
(12) (10)
The department shall record the
disposition of each
charge and shall inform the director of the federal bureau of
investigation of the final disposition of any arrest or offense for
which a person's biometric data were collected under this section
or section 16a of chapter IX of the code of criminal procedure,
1927 PA 175, MCL 769.16a.
(13) (11)
The department shall compare the
biometric data
received with those already on file and if the department finds
that the person arrested has a criminal record, the department
shall immediately inform the arresting agency and prosecuting
attorney of this fact.
(14) (12)
The Except as provided in
subsection (8), the
provisions
of subsection (8) (10) that require the destruction of
the biometric data and the arrest card do not apply to a person who
was arraigned for any of the following:
(a) The commission or attempted commission of a crime with or
against a child under 16 years of age.
(b) Rape.
(c) Criminal sexual conduct in any degree.
(d) Sodomy.
(e) Gross indecency.
(f) Indecent liberties.
(g) Child abusive commercial activities.
(h) A person who has a prior conviction, other than a
misdemeanor traffic offense, unless a judge of a court of record,
except the probate court, by express order on the record, orders
the destruction or return of the biometric data and arrest card.
(i) A person arrested who is a juvenile charged with an
offense that would constitute the commission or attempted
commission of any of the crimes in this subsection if committed by
an adult.
(15) (13)
Subsection (5) does not permit the
forwarding to the
department of the biometric data of a person accused and convicted
under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923,
or a local ordinance substantially corresponding to a provision of
that act, unless the offense is punishable upon conviction by
imprisonment for more than 92 days or is an offense that is
punishable by imprisonment for more than 92 days upon a subsequent
conviction.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect
unless both of the following bills of the 99th Legislature are
enacted into law:
(a) Senate Bill No.____ or House Bill No. 4536 (request no.
02766'17).
(b) Senate Bill No.____ or House Bill No. 4537 (request no.
02766'17 a).
