HOUSE BILL No. 4839

 

June 13, 2013, Introduced by Reps. Leonard, Cotter, O'Brien, McMillin, Switalski, Irwin and Oakes 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 section 3 (MCL 780.623), as amended by 1994 PA 294.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     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, 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 a law enforcement agency if a person

 

whose conviction has been set aside applies for employment with the

 

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 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 or a victim, 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.

 

     (6) As used in this section, "victim" means any individual who

 

suffers direct or threatened physical, financial, or emotional harm

 

as the result of the offense that was committed by the applicant.