SENATE BILL No. 172

January 29, 2009, Introduced by Senators BRATER, ANDERSON, SWITALSKI, PRUSI, THOMAS, SCOTT, CLARKE and JACOBS and referred to the Committee on Judiciary.

A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

(MCL 760.1 to 777.69) by adding section 85 to chapter VII.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER VII

Sec. 85. (1) Upon the motion of a party or upon the court's

own motion, the court may conduct a hearing to determine whether an

individual charged with committing a crime desires or requires

treatment or has previously been treated or applied for treatment

or services for a mental illness, emotional disturbance,

developmental disability, or mental retardation and whether the

interests of the public and the individual would be best served by

requiring the individual to obtain treatment for the mental

illness, emotional disturbance, developmental disability, or mental

retardation. In making the determination under this subsection, the

court shall consider all of the following:

(a) The nature and seriousness of the crime allegedly

committed.

(b) The individual's prior criminal record.

(d) The likelihood that the individual would benefit from

mental health treatment or services.

(e) Other information considered relevant by the court.

(2) The court shall inform the individual and his or her

attorney that the individual may refuse to participate in a program

of treatment offered under this section and instead allow the

criminal proceeding to proceed.

(3) Unless the individual informs the court that he or she

does not wish to participate in a mental health treatment program

as provided in subsection (1), the court shall present to the

individual a diversion contract to be signed by the individual and

the court. By signing the diversion contract, the individual agrees

for the term of the diversion period to abide by the terms of any

court order entered with respect to his or her case, to remain in

substantial compliance with any course of treatment recommended or

ordered under an order of the court, and not to violate any

criminal law or ordinance of the United States, this state, or a

political subdivision of this state. By signing the diversion

contract, the court agrees to stay further adjudication of the

underlying criminal charge and to dismiss the charge at the

conclusion of the period of diversion if the individual abides by

the terms of the diversion contract.

(4) If a diversion contract has been signed under subsection

(3), the court shall stay the criminal case for not more than 1

year.

(5) If the court is informed at any time during the

diversionary period that the individual has not abided by the terms

of the diversion contract, the court may rescind the diversion

contract and renew adjudication of the criminal case. If the court

chooses not to rescind the diversion contract, the contract remains

in effect and is binding on all of the parties.

(6) If the court rescinds the diversion contract during the

period of diversion under subsection (5), the court shall provide a

written notice of the rescission to the individual and his or her

attorney and to the prosecuting attorney.

(7) At the conclusion of the diversion period, the court shall

comply with the terms of the diversion contract.

(8) Statements made by a defendant to a psychiatrist,

psychologist, or other mental health professional who conducts an

examination of an individual under this section are not admissible

during any subsequent criminal proceeding involving the alleged

criminal conduct on any issue other than the individual's mental

illness, insanity, or diminished capacity at the time of the

alleged offense.

(9) An individual who has a mental illness, emotional

disturbance, developmental disability, or mental retardation shall

not be held in a jail or other place of criminal detention as an

alternative to mental health treatment unless he or she is being