Bill Text: MI HB5871 | 2013-2014 | 97th Legislature | Introduced
Bill Title: Criminal procedure; warrants; oral swab test; require search warrant in the absence of written consent. Amends sec. 25b, ch. IV of 1927 PA 175 (MCL 764.25b).
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2014-10-02 - Printed Bill Filed 10/02/2014 [HB5871 Detail]
Download: Michigan-2013-HB5871-Introduced.html
HOUSE BILL No. 5871
October 1, 2014, Introduced by Reps. McMillin, Robinson, Irwin and Callton and referred to the Committee on Judiciary.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending section 25b of chapter IV (MCL 764.25b), as amended by
1999 PA 65.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER IV
Sec. 25b. (1) As used in this section:
(a) "Body cavity" means the interior of the human body not
visible by normal observation, being the stomach or rectal cavity
of a person and the vagina of a female person.
(b) "Body cavity search" means a physical intrusion into a
body cavity for the purpose of discovering any object concealed in
a body cavity.
(c) "Oral swab test" means the swabbing in the interior of a
person's mouth for a sample of saliva to test for the presence of a
controlled substance or a controlled substance analogue, as those
terms are defined in section 7104 of the public health code, 1978
PA 368, MCL 333.7104.
(2) Except as otherwise provided in this section, a search of
a body cavity or an oral swab test shall not be conducted without a
valid search warrant or the written consent of the person being
searched.
(3) Subsection (2) does not apply to a body cavity search or
oral swab test of a person who is any of the following:
(a) A person serving a sentence for a criminal offense in a
detention facility or a state correctional facility housing
prisoners under the jurisdiction of the department of corrections,
including a youth correctional facility operated by the department
of corrections or a private vendor under section 20g of the
corrections code of 1953, 1953 PA 232, MCL 791.220g.
(b) A person who, as a result of an order by a court, is
lodged in an inpatient facility operated by or under contract with
the department of community health or a county community mental
health board, if the person is self-abusive and the search is
necessary for his or her protection.
(c) A person who, as the result of a dispositional order
entered after adjudication by the juvenile division of probate
court before January 1, 1998 or by the family division of the
circuit court on or after January 1, 1998, is residing in a
juvenile detention facility.
(4) If any of the circumstances described in subsection
(3)(a), (b), or (c) applies, a search of a body cavity or an oral
swab test shall not be conducted unless the person conducting the
search has obtained prior written authorization from the chief
administrative officer of the facility or from that officer's
designee.
(5) A body cavity search shall be conducted by a licensed
physician or a physician's assistant, licensed practical nurse, or
registered professional nurse acting with the approval of a
licensed physician. If the body cavity search is conducted by a
person of the opposite sex as the person being searched, the search
shall be conducted in the presence of a person of the same sex as
the person being searched.
(6) If a body cavity search is conducted under a valid search
warrant, the law enforcement officer who executes the warrant
required under subsection (2) shall prepare a report containing all
of the following:
(a) A copy of the search warrant required under subsection
(2).
(b) The name and sex of the person searched, if not contained
in the warrant.
(c) The name of the person who conducted the search.
(d) The time, date, and place of the search.
(e) A list of all items recovered from the person who was
searched.
(f) The name and sex of all law enforcement officers or
employees of the law enforcement agency present at the search.
(7) If a body cavity search is conducted under subsections (3)
and (4), the personnel authorized to conduct the body cavity search
shall prepare a report containing all of the following:
(a) A copy of the written authorization required under
subsection (4).
(b) The name and sex of the person searched, if not contained
in the written authorization.
(c) The name of the person who conducted the search.
(d) The time, date, and place of the search.
(e) A list of all items recovered from the person who was
searched.
(f) The name and sex of all personnel present at the search.
(8) A copy of the report required by subsection (6) or (7)
shall be given without cost to the person who has been searched,
subject to deletions permitted by section 13 of the freedom of
information act, 1976 PA 442, MCL 15.243.
(9) A law enforcement officer, an employee of the law
enforcement agency, or the chief administrative officer or
personnel of a facility described in subsection (3) who conducts or
authorizes a body cavity search in violation of this section is
guilty of a misdemeanor.
