Bill Text: MI HB5545 | 2013-2014 | 97th Legislature | Introduced

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

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2014-10-02 - Referred To Second Reading [HB5545 Detail]

Download: Michigan-2013-HB5545-Introduced.html

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HOUSE BILL No. 5545

May 6, 2014, Introduced by Reps. Leonard, Haveman, Tlaib, Oakes, Santana, Schor and Howrylak 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 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.

 

     (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.

 

     (2) A conviction that was deferred and dismissed under any of

 

the following, whether a misdemeanor or a felony, shall be

 

considered a misdemeanor conviction under subsection (1) for

 

purposes of determining whether a person is eligible to have any

 

conviction set aside under this act:

 

     (a) Section 703 of the Michigan liquor control code of 1998,

 

1998 PA 58, MCL 436.1703.

 

     (b) Section 1070(1)(b)(i) or 1209 of the revised judicature act

 

of 1961, 1961 PA 236, MCL 600.1070 and 600.1209.

 

     (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 or laws of this state or of a political

 

subdivision of this state similar in nature and applicability to

 

those listed in this subsection that provide 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 136b(3),

 

136d(1)(b) or (c), 145c, 145d, 520c, 520d, 520e, or 520g of the

 

Michigan penal code, 1931 PA 328, MCL 750.136b, 750.136d, 750.145c,

 

750.145d, 750.520c, 750.520d, 750.520e, 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 conviction for domestic violence, if the person

 

has a previous misdemeanor conviction for domestic violence.

 

     (e) A violation of chapter LXVIIA or chapter LXXXIII-A of the

 

Michigan penal code, 1938 PA 321, MCL 750.462a to 750.462j and

 

750.543a to 750.543z.

 

     (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.any nondisqualifying misdemeanor

 

convictions described in subsection (1)(a).

 

     (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 under 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."Domestic violence" means that term as defined in

 

section 1 of 1978 PA 389, MCL 400.1501.

 

     (c) "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 designated by law to be a felony.

 

     (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) "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).

 

     (g) (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.

 

     (h) (d) "Victim" means that term as defined in section

 

sections 2, 31, and 61 of the William Van Regenmorter crime

 

victim's rights act, 1985 PA 87, MCL 780.752, 780.781, and 780.811.

 

     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 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.

 

     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.