Bill Text: MI HB5280 | 2017-2018 | 99th Legislature | Introduced

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Bill Title: Courts; records; entry of certain orders into the law enforcement information network; provide clerical responsibility to the courts. Amends sec. 1g, ch. IV, sec. 6b, ch. V & sec. 3, ch. XI of 1927 PA 175 (MCL 764.1g et seq.).

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2017-11-29 - Bill Electronically Reproduced 11/28/2017 [HB5280 Detail]

Download: Michigan-2017-HB5280-Introduced.html

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HOUSE BILL No. 5280

 

 

November 28, 2017, Introduced by Rep. Lucido and referred to the Committee on Law and Justice.

 

     A bill to amend 1927 PA 175, entitled

 

"The code of criminal procedure,"

 

by amending section 1g of chapter IV, section 6b of chapter V, and

 

section 3 of chapter XI (MCL 764.1g, 765.6b, and 771.3), section 1g

 

of chapter IV as added by 2006 PA 668, section 6b of chapter V as

 

amended by 2014 PA 316, and section 3 of chapter XI as amended by

 

2012 PA 612.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

                              CHAPTER IV

 

     Sec. 1g. (1) Before a warrant is issued for the arrest of a

 

person who is not in custody, the law enforcement agency

 

investigating the crime shall use the law enforcement information

 

network LEIN to determine whether the person is a parolee under the

 

jurisdiction of the department of corrections. If the person is

 

determined to be a parolee under the jurisdiction of the department

 

of corrections, and the magistrate issues a warrant for the arrest

 

of that person, the investigating law enforcement agency or, if

 

unless the investigating law enforcement agency affirmatively

 

undertakes the duty to enter the arrest warrant into LEIN, the

 

court is entering shall enter the arrest warrants warrant into the

 

law enforcement information network and LEIN. If the investigating

 

law enforcement agency informs the court that the person is a

 

parolee, the court shall promptly give to the department of

 

corrections, by telephonic or electronic means, notice of all of

 

the following:

 

     (a) The identity of the person named in the warrant.

 

     (b) The fact that information in databases managed by the

 

department of corrections and accessible by the law enforcement

 

information network LEIN provides reason to believe the person

 

named in the warrant is a parolee under the jurisdiction of the

 

department of corrections.

 

     (c) The charge or charges stated in the warrant.

 

     (2) If Unless the investigating law enforcement agency

 

affirmatively undertakes the duty to enter the warrant into LEIN,

 

the court has assumed the responsibility for entering arrest

 

warrants shall enter the warrant into the law enforcement

 

information network and LEIN. If the court delays the issuance or

 

entry of a warrant pending a court appearance by the person named

 

in the warrant, the law enforcement agency submitting the sworn

 

complaint to the court shall promptly give to the department of

corrections, by telephonic or electronic means, notice of the

 

following:

 

     (a) The identity of the person named in the sworn complaint.

 

     (b) The fact that a prosecuting attorney has authorized

 

issuance of a warrant.

 

     (c) The fact that information in databases managed by the

 

department of corrections and accessible by the law enforcement

 

information network LEIN provides reason to believe the person

 

named in the sworn complaint is a parolee under the jurisdiction of

 

the department of corrections.

 

     (d) The charge or charges stated in the sworn complaint.

 

     (e) Whether, pending a court appearance by the person named in

 

the sworn complaint, the court has either issued the arrest warrant

 

but delayed entry of the warrant into the law enforcement

 

information network LEIN or has delayed issuance of the warrant.

 

     (3) The requirement to give notice to the department of

 

corrections under subsection (1) or (2) is complied with satisfied

 

if the notice is transmitted to any of the following:

 

     (a) To the department by a central toll-free telephone number

 

that is designated by the department for that purpose and that is

 

in operation 24 hours a day and is posted in the department's

 

database of information concerning the status of parolees.

 

     (b) To a parole agent serving the county where the warrant is

 

issued or is being sought.

 

     (c) To the supervisor of the parole office serving the county

 

where the warrant is issued or is being sought.

 

     (4) As used in this section, "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.

 

                              CHAPTER V

 

     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, the judge or district

 

court magistrate shall make a finding of the need for protective

 

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 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.

 

     (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.

 

     (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), the court

 

shall also impose a condition that the defendant not purchase or

 

possess a firearm.

 

     (4) The Unless a law enforcement agency within the

 

jurisdiction of the court affirmatively undertakes the duty to

 

enter the order or amended order issued under subsection (1) or

 

subsections (1) and (3) into LEIN, 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 a law enforcement

 

agency within the jurisdiction of the court affirmatively

 

undertakes the duty to enter the order or amended order issued

 

under subsection (1) or subsections (1) and (3), the judge or

 

district court magistrate shall immediately direct the law

 

enforcement agency, 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 that previously entered the order to remove the

 

order or amended order from LEIN.

 

     (5) The issuing court or a law enforcement agency within the

jurisdiction of the court as described in subsection (4) shall

 

immediately enter an order or amended order into LEIN or shall

 

remove the order or amended order from the law enforcement

 

information network LEIN upon expiration of the order or as

 

directed by the court under subsection (4).

 

     (6) If a 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. 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 for 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 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, 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 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 must 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 consent" means that the victim was given

 

information concerning all of the following before consenting to

 

participate in electronic monitoring:

 

     (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.

 

     (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.

 

     (iii) The boundaries imposed on the defendant during the

 

monitoring program.

 

     (iv) Sanctions that the court may impose on the defendant for

 

violating an order issued under this subsection.

 

     (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.

 

     (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.

 

     (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.

 

     (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.

 

     (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 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 will be is subject to arrest

 

without a warrant, shall will have his or her bail forfeited or

 

revoked, and shall will not be released from custody prior to

 

arraignment.

 

     (8) The Unless a law enforcement agency within the

 

jurisdiction of the court affirmatively undertakes the duty to

 

enter the order or amended order issued under subsection (7) into

 

LEIN, 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) into LEIN. If a law enforcement

 

agency within the jurisdiction of the court affirmatively

 

undertakes the duty to enter the order or amended order issued

 

under subsection (7), the judge or district court magistrate shall

 

immediately direct the law enforcement agency, in writing, to enter

an order or amended order issued under subsection (7) 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 that previously entered the order to remove the

 

order or amended order from LEIN.

 

     (9) The issuing court or a law enforcement agency within the

 

jurisdiction of the court as described in subsection (8) shall

 

immediately enter an order or amended order into LEIN. If the order

 

or amended order is rescinded, the court or law enforcement agency

 

that previously entered the order shall immediately remove the

 

order or amended order from LEIN upon expiration of the order under

 

subsection (8).

 

     (10) 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.

 

     (11) As used in this section, "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.

 

                              CHAPTER XI

 

     Sec. 3. (1) The sentence of probation shall must include all

 

of the following conditions:

 

     (a) During the term of his or her probation, the probationer

 

shall not violate any criminal law of this state, the United

 

States, or another state or any ordinance of any municipality in

this state or another state.

 

     (b) During the term of his or her probation, the probationer

 

shall not leave the state without the consent of the court granting

 

his or her application for probation.

 

     (c) The probationer shall report to the probation officer,

 

either in person or in writing, monthly or as often as the

 

probation officer requires. This subdivision does not apply to a

 

juvenile placed on probation and committed under section 1(3) or

 

(4) of chapter IX to an institution or agency described in the

 

youth rehabilitation services act, 1974 PA 150, MCL 803.301 to

 

803.309.

 

     (d) If sentenced in circuit court, the probationer shall pay a

 

probation supervision fee as prescribed in section 3c of this

 

chapter.

 

     (e) The probationer shall pay restitution to the victim of the

 

defendant's course of conduct giving rise to the conviction or to

 

the victim's estate as provided in chapter IX. An order for payment

 

of restitution may be modified and shall must be enforced as

 

provided in chapter IX.

 

     (f) The probationer shall pay an assessment ordered under

 

section 5 of 1989 PA 196, MCL 780.905.

 

     (g) The probationer shall pay the minimum state cost

 

prescribed by section 1j of chapter IX.

 

     (h) If the probationer is required to be registered under the

 

sex offenders registration act, 1994 PA 295, MCL 28.721 to 28.736,

 

the probationer shall comply with that act.

 

     (2) As a condition of probation, the court may require the

probationer to do 1 or more of the following:

 

     (a) Be imprisoned in the county jail for not more than 12

 

months at the time or intervals that may be consecutive or

 

nonconsecutive, within the probation as the court determines.

 

However, the period of confinement shall must not exceed the

 

maximum period of imprisonment provided for the offense charged if

 

the maximum period is less than 12 months. The court may permit day

 

parole as authorized under 1962 PA 60, MCL 801.251 to 801.258. The

 

court may, subject to sections 3d and 3e of this chapter, permit

 

the individual to be released from jail to work at his or her

 

existing job or to attend a school in which he or she is enrolled

 

as a student. This subdivision does not apply to a juvenile placed

 

on probation and committed under section 1(3) or (4) of chapter IX

 

to an institution or agency described in the youth rehabilitation

 

services act, 1974 PA 150, MCL 803.301 to 803.309.

 

     (b) Pay immediately or within the period of his or her

 

probation a fine imposed when placed on probation.

 

     (c) Pay costs pursuant to subsection (5).

 

     (d) Pay any assessment ordered by the court other than an

 

assessment described in subsection (1)(f).

 

     (e) Engage in community service.

 

     (f) Agree to pay by wage assignment any restitution,

 

assessment, fine, or cost imposed by the court.

 

     (g) Participate in inpatient or outpatient drug treatment or ,

 

beginning January 1, 2005, participate in a drug treatment court

 

under chapter 10A of the revised judicature act of 1961, 1961 PA

 

236, MCL 600.1060 to 600.1084.600.1086.

     (h) Participate in mental health treatment.

 

     (i) Participate in mental health or substance abuse

 

counseling.

 

     (j) Participate in a community corrections program.

 

     (k) Be under house arrest.

 

     (l) Be subject to electronic monitoring.

 

     (m) Participate in a residential probation program.

 

     (n) Satisfactorily complete a program of incarceration in a

 

special alternative incarceration unit as provided in section 3b of

 

this chapter.

 

     (o) Be subject to conditions reasonably necessary for the

 

protection of 1 or more named persons.

 

     (p) Reimburse the county for expenses incurred by the county

 

in connection with the conviction for which probation was ordered

 

as provided in the prisoner reimbursement to the county act, 1984

 

PA 118, MCL 801.81 to 801.93.

 

     (q) Complete his or her high school education or obtain the

 

equivalency of a high school education in the form of a general

 

education development (GED) certificate.

 

     (3) The court may impose other lawful conditions of probation

 

as the circumstances of the case require or warrant or as in its

 

judgment are proper.

 

     (4) If an order or amended order of probation contains a

 

condition for the protection of 1 or more named persons as provided

 

in subsection (2)(o), unless a law enforcement agency within the

 

jurisdiction of the court affirmatively undertakes the duty to

 

enter the order or amended order into LEIN, the court or a law

enforcement agency within the court's jurisdiction shall enter the

 

order or amended order into the law enforcement information

 

network. LEIN. If a law enforcement agency within the jurisdiction

 

of the court affirmatively undertakes the duty to enter the order

 

or amended order into LEIN, the law enforcement agency shall enter

 

the order or amended order into LEIN. If the court rescinds the

 

order or amended order or the condition, the court shall remove the

 

order or amended order or the condition from the law enforcement

 

information network LEIN or notify that the law enforcement agency

 

that previously entered the order or amended order and the that law

 

enforcement agency shall remove the order or amended order or the

 

condition from the law enforcement information network.LEIN.

 

     (5) If the court requires the probationer to pay costs under

 

subsection (2), the costs shall must be limited to expenses

 

specifically incurred in prosecuting the defendant or providing

 

legal assistance to the defendant and supervision of the

 

probationer.

 

     (6) If the court imposes costs under subsection (2) as part of

 

a sentence of probation, all of the following apply:

 

     (a) The court shall not require a probationer to pay costs

 

under subsection (2) unless the probationer is or will be able to

 

pay them during the term of probation. In determining the amount

 

and method of payment of costs under subsection (2), the court

 

shall take into account the probationer's financial resources and

 

the nature of the burden that payment of costs will impose, with

 

due regard to his or her other obligations.

 

     (b) A probationer who is required to pay costs under

subsection (1)(g) or (2)(c) and who is not in willful default of

 

the payment of the costs may petition the sentencing judge or his

 

or her successor at any time for a remission of the payment of any

 

unpaid portion of those costs. If the court determines that payment

 

of the amount due will impose a manifest hardship on the

 

probationer or his or her immediate family, the court may remit all

 

or part of the amount due in costs or modify the method of payment.

 

     (7) If a probationer is required to pay costs as part of a

 

sentence of probation, the court may require payment to be made

 

immediately or the court may provide for payment to be made within

 

a specified period of time or in specified installments.

 

     (8) If a probationer is ordered to pay costs as part of a

 

sentence of probation, compliance with that order shall must be a

 

condition of probation. The court may revoke probation if the

 

probationer fails to comply with the order and if the probationer

 

has not made a good faith effort to comply with the order. In

 

determining whether to revoke probation, the court shall consider

 

the probationer's employment status, earning ability, and financial

 

resources, the willfulness of the probationer's failure to pay, and

 

any other special circumstances that may have a bearing on the

 

probationer's ability to pay. The proceedings provided for in this

 

subsection are in addition to those provided in section 4 of this

 

chapter.

 

     (9) If entry of judgment is deferred in the circuit court, the

 

court shall require the individual to pay a supervision fee in the

 

same manner as is prescribed for a delayed sentence under section

 

1(3) of this chapter, shall require the individual to pay the

minimum state costs prescribed by section 1j of chapter IX, and may

 

impose, as applicable, the conditions of probation described in

 

subsections (1), (2), and (3).

 

     (10) If sentencing is delayed or entry of judgment is deferred

 

in the district court or in a municipal court, the court shall

 

require the individual to pay the minimum state costs prescribed by

 

section 1j of chapter IX and may impose, as applicable, the

 

conditions of probation described in subsections (1), (2), and (3).

 

     (11) As used in this section, "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.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.