Bill Text: MI SB0760 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Juveniles; criminal procedure; expunction of crimes resulting from being a victim of human trafficking; expand. Amends sec. 18e, ch. XIIA of 1939 PA 288 (MCL 712A.18e).
Spectrum: Partisan Bill (Democrat 12-0)
Status: (Introduced - Dead) 2020-01-29 - Referred To Committee On Judiciary And Public Safety [SB0760 Detail]
Download: Michigan-2019-SB0760-Introduced.html
SENATE BILL NO. 760
January 29, 2020, Introduced by Senators WOJNO,
IRWIN, CHANG, BULLOCK, ANANICH, GEISS, POLEHANKI, MCMORROW, SANTANA,
ALEXANDER, BAYER and HOLLIER and referred to the Committee on Judiciary and
Public Safety.
A bill to amend 1939 PA 288, entitled
"Probate code of 1939,"
by amending section 18e of chapter XIIA (MCL 712A.18e), as amended by 2018 PA 142.
the people of the state of michigan enact:
Sec. 18e. (1) Except as otherwise provided in subsection (2), a person who
has been adjudicated of not more than 1 juvenile offense that would be a felony
if committed by an adult and not more than 3 juvenile offenses, of which not
more than 1 may be a juvenile offense that would be a felony if committed by an
adult and who has no felony convictions may file an application with the
adjudicating court or adjudicating courts for the entry of an order setting
aside the adjudications. A person may have only 1 adjudication for an offense
that would be a felony if committed by an adult and not more than 2
adjudications for an offense that would be a misdemeanor if committed by an
adult or if there is no adjudication for a felony if committed by an adult, not
more than 3 adjudications for an offense that would be a misdemeanor if
committed by an adult set aside under this section. Multiple adjudications
arising out of a series of acts that were in a continuous time sequence of 12
hours or less and that displayed a single intent and goal constitute 1 offense
provided that none of the adjudications constitute any of the following:
(a) An assaultive crime
as that term is defined in subsection (7).
(b) An offense involving
the use or possession of a weapon.
(c) An offense with a
maximum penalty of 10 or more years imprisonment.
(2) A person shall not
apply under this section to have set aside, and a judge shall not under this
section set aside, any of the following:
(a) An adjudication for
an offense that if committed by an adult would be a felony for which the
maximum punishment is life imprisonment.
(b) An adjudication for a
traffic offense under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to
257.923, or a local ordinance substantially corresponding to that act, that
involves the operation of a vehicle and at the time of the violation is a
felony or misdemeanor.
(c) A conviction under
section 2d of this chapter. This subdivision does not prevent a person
convicted under section 2d of this chapter from having that conviction set
aside as otherwise provided by law.
(3) An application under
this section shall must not be filed until the expiration of
1 year following imposition of the disposition for the adjudication that the
applicant seeks to set aside, or 1 year following completion of any term of
detention for that adjudication, or when the person becomes 18 years of age,
whichever occurs later.
(4) An application under
this section is invalid unless it contains the following information and is
signed under oath by the person whose adjudication is to be set aside:
(a) The full name and
current address of the applicant.
(b) A certified record of
the adjudication that is to be set aside.
(c) A statement that the
applicant has not been adjudicated of a juvenile offense other than the
juvenile offenses sought to be set aside as a result of this application.
(d) A statement that the
applicant has not been convicted of any felony offense.
(e) A statement as to
whether the applicant has previously filed an application to set aside this or
any other adjudication and, if so, the disposition of the application.
(f) 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) A consent to the use
of the nonpublic record created under subsection (13), to the extent authorized
by subsection (13).
(5) The applicant shall
submit a copy of the application and 2 complete sets 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 subsection (13), and shall forward a 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 adjudication or conviction of the applicant, and the setting
aside of any adjudication or 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.
(6) The copy of the
application submitted to the department of state police under subsection (5) shall must be accompanied by a fee of $25.00
payable to the state of Michigan. The department of state police shall use the
fee to defray the expenses incurred in processing the application.
(7) A copy of the
application shall must be served upon the attorney general
and, if applicable, upon the office of the prosecuting attorney who prosecuted
the offense. The attorney general and the prosecuting attorney shall have an
opportunity to contest the application. If the adjudication was for an offense
that if committed by an adult would be an assaultive crime or serious
misdemeanor, and if the name of the victim is known to the prosecuting
attorney, the prosecuting attorney shall give the victim of that offense
written notice of the application and forward a copy of the application to the
victim under section 46a of the William Van Regenmorter crime victim's rights
act, 1985 PA 87, MCL 780.796a. The notice shall must be
sent by first-class mail to the victim's last known address. The victim has the
right to appear at any proceeding under this section concerning that
adjudication and to make a written or oral statement. As used in this
subsection:
(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) "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.
(c) "Victim"
means that term as defined in section 31 of the William Van Regenmorter crime
victim's rights act, 1985 PA 87, MCL 780.781.
(8) Upon the hearing of
the application, the court may require the filing of affidavits and the taking
of proofs as it considers proper.
(9) Except as provided in
this subsection and subsection (10), if the court determines that the
circumstances and behavior of the applicant from the date of the applicant's
adjudication to the filing of the application warrant setting aside the 1
adjudication for a juvenile offense that would be a felony if committed by an
adult and not more than 2 adjudications for a juvenile offense that would be a
misdemeanor if committed by an adult or if there is no adjudication for a
felony if committed by an adult, not more than 3 adjudications for an offense
that would be a misdemeanor if committed by an adult and that setting aside the
adjudication or adjudications is consistent with the public welfare, the court
may enter an order setting aside the adjudication. If the applicant submits to
the court a certificate of completion from the Michigan youth challeNGe academy
showing that the applicant has completed that program, the court shall
determine that the applicant's circumstances and behavior warrant setting aside
the adjudication. If the court also determines that setting aside the
adjudication or adjudications is consistent with the public welfare, the court
may enter an order setting aside the adjudication as provided in this
subsection. Except as provided in subsection (10), the setting aside of an
adjudication under this section is a privilege and conditional, and is not a
right.
(10) If the person files
an application with the court and he or she otherwise meets all the
requirements, notwithstanding subsection (9), the court shall set aside the
adjudication of a person as follows:
(a) The person was adjudicated
for an offense that if committed by an adult would be a violation or an
attempted violation of section 413 of the Michigan penal code, 1931 PA 328, MCL
750.413.
(b) The person was
adjudicated for an a juvenile offense that if committed by an adult would
be a violation or an attempted violation of section 448, 449, or 450 of the
Michigan penal code, 1931 PA 328, MCL 750.448, 750.449, and 750.450, or a local
ordinance substantially corresponding to section 448, 449, or 450 of the
Michigan penal code, 1931 PA 328, MCL 750.448, 750.449, and 750.450, and
he or she committed the offense as a direct result of his or her being a victim
of a human trafficking violation.
(11) Upon the entry of an
order under this section, the applicant is considered not to have been
previously adjudicated, except as provided in subsection (13) and as follows:
(a) The applicant is not
entitled to the remission of any fine, costs, or other money paid as a
consequence of an adjudication that is set aside.
(b) This section does not
affect the right of the applicant to rely upon the adjudication to bar
subsequent proceedings for the same offense.
(c) This section does not
affect the right of a victim of an offense to prosecute or defend a civil
action for damages.
(d) This section does not
create a right to commence an action for damages for detention under the
disposition that the applicant served before the adjudication is set aside
under this section.
(12) Upon the entry of an
order under this section, the court shall send a copy of the order to the
arresting agency and the department of state police.
(13) The department of
state police shall retain a nonpublic record of the order setting aside an
adjudication for a juvenile offense that would be a felony if committed by an
adult and not more than 2 juvenile offenses that would be misdemeanors if
committed by an adult or if there is no adjudication for a felony if committed
by an adult, not more than 3 adjudications for an offense that would be a misdemeanor
if committed by an adult and of the record of the arrest, fingerprints,
adjudication, and disposition of the applicant in the case to which the order
applies. Except as provided in subsection (14), this nonpublic record shall must 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) Consideration by a
law enforcement agency if a person whose adjudication has been set aside
applies for employment with the law enforcement agency.
(c) To show that a person
who has filed an application to set aside an adjudication has previously had an
adjudication set aside under this section.
(d) 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.
(e) Consideration by the
governor, if a person whose adjudication has been set aside applies for a
pardon for another offense.
(14) A copy of the
nonpublic record created under subsection (13) shall must be
provided to the person whose adjudication is set aside under this section 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, 1976 PA 442, MCL 15.234.
(15) The nonpublic record
maintained under subsection (13) is exempt from disclosure under the freedom of
information act, 1976 PA 442, MCL 15.231 to 15.246.
(16) Except as provided
in subsection (13), a person, other than the applicant, who knows or should
have known that an adjudication was set aside under this section, who divulges,
uses, or publishes information concerning an adjudication set aside under this
section is guilty of a misdemeanor.
Enacting section 1. This amendatory act takes effect 90 days after the date it is enacted into law.
