Bill Text: MI SB1200 | 2017-2018 | 99th Legislature | Introduced

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Bill Title: Criminal procedure; expunction; eligibility for record expungement of certain marihuana offenses; allow. Amends sec. 1 of 1965 PA 213 (MCL 780.621).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2018-11-27 - Referred To Committee On Judiciary [SB1200 Detail]

Download: Michigan-2017-SB1200-Introduced.html

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SENATE BILL No. 1200

 

 

November 27, 2018, Introduced by Senators BIEDA, CONYERS, HERTEL and YOUNG 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 section 1 (MCL 780.621), as amended by 2016 PA 336.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1. (1) Except as provided in 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 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) Except as provided in subdivision (c), 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.

 

     (c) A person who is convicted of a violation or an attempted

 

violation of section 520e of the Michigan penal code, 1931 PA 328,

 

MCL 750.520e, before January 12, 2015 may petition the convicting

 

court to set aside the conviction if the individual has not been

 

convicted of another offense other than not more than 2 minor

 

offenses. As used in this subdivision, "minor offense" means a

 

misdemeanor or ordinance violation to which all of the following

 

apply:

 

     (i) The maximum permissible term of imprisonment does not

 

exceed 90 days.

 

     (ii) The maximum permissible fine is not more than $1,000.00.

 

     (iii) The person who committed the offense is not more than 21

 

years old.

 

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

 

the following, whether a misdemeanor or a felony, shall must 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) A person shall not apply to have set aside, and a judge

 

shall not set aside, a conviction for 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.

 

     (b) A violation or attempted violation of section 136b(3),

 

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

 

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

 

750.145d, 750.520c, 750.520d, and 750.520g.

 

     (c) A violation or attempted violation of section 520e of the

 

Michigan penal code, 1931 PA 328, MCL 750.520e, if the conviction

 

occurred on or after January 12, 2015.

 

     (d) A traffic offense, including, but not limited to, a

 

conviction for operating while intoxicated.

 

     (e) A felony conviction for domestic violence, if the person

 

has a previous misdemeanor conviction for domestic violence.

     (f) A violation of former section 462i or 462j or chapter

 

LXVIIA or chapter LXXXIII-A of the Michigan penal code, 1938 PA

 

321, MCL 750.462a to 750.462h and 750.543a to 750.543z.

 

     (4) A person who is convicted of a 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, may apply to

 

have that conviction set aside if he or she committed the offense

 

as a direct result of his or her being a victim of a human

 

trafficking violation.

 

     (5) An application under subsection (1) shall must only be

 

filed 5 or more years after whichever of the following events

 

occurs last:

 

     (a) Imposition of the sentence for the conviction that the

 

applicant seeks to set aside.

 

     (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.

 

     (6) 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.

 

     (7) An application under subsection (4) may be filed at any

 

time following the date of the conviction to be set aside. A person

 

may apply to have more than 1 conviction set aside under subsection

 

(4).

 

     (8) 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 each conviction that is to be set

 

aside.

 

     (c) For an application under subsection (1), 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 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) A statement as to whether the applicant has previously

 

filed an application to set aside this or other conviction 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) If the person is seeking to have 1 or more convictions set

 

aside under subsection (4), a statement that he or she meets the

criteria set forth in subsection (4), together with a statement of

 

the facts supporting his or her contention that the conviction was

 

a direct result of his or her being a victim of human trafficking.

 

     (h) A consent to the use of the nonpublic record created under

 

section 3 to the extent authorized by section 3.

 

     (9) The applicant shall submit a copy of the application and 1

 

complete 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 an electronic copy of 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 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.

 

     (10) The copy of the application submitted to the department

 

of state police under subsection (9) shall must be accompanied by a

 

fee of $50.00 payable to the state of Michigan that shall must be

 

used by the department of state police to defray the expenses

 

incurred in processing the application.

 

     (11) A copy of the application shall must be served upon the

attorney general and upon the office of each prosecuting attorney

 

who prosecuted the crime or crimes the applicant seeks to set

 

aside, and an opportunity shall must be given to the attorney

 

general and to the prosecuting attorney to contest the application.

 

If 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

 

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 must 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.

 

     (12) For an application under subsection (1), upon the hearing

 

of the application the court may require the filing of affidavits

 

and the taking of proofs as it considers proper.

 

     (13) For an application under subsection (4), if the applicant

 

proves to the court by a preponderance of the evidence that the

 

conviction was a direct result of his or her being a victim of

 

human trafficking, the court may, subject to the requirements of

 

subsection (14), enter an order setting aside the conviction.

 

     (14) If the court determines that the circumstances and

 

behavior of an applicant under subsection (1) or (4), 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.

 

     (15) The setting aside of a conviction or convictions under

 

this act is a privilege and conditional and is not a right.

 

     (16) Subject to subsection (18), a person who was convicted of

 

1 or more offenses in violation of section 7403(2)(d) of the public

 

health code, 1978 PA 368, MCL 333.7403, and who otherwise complies

 

with the requirements for making an application under subsection

 

(1) may make an application under this subsection to have those

 

offenses set aside.

 

     (17) Subject to subsection (18), the court shall grant an

 

application made under subsection (16) if the application is for 1

 

or more offenses in violation of section 7403(2)(d) of the public

 

health code, 1978 PA 368, MCL 333.7403.

 

     (18) Subsections (16) and (17) do not apply if the Michigan

 

regulation and taxation of marihuana act is not approved by a

 

majority of the qualified electors of this state voting on the

 

question at an election to be held on the November regular election

 

date in 2018.

 

     (19) (16) 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) "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) "Human trafficking violation" means a violation of chapter

 

LXVIIA of the Michigan penal code, 1931 PA 328, MCL 750.462a to

 

750.462h.

 

     (e) "Indian tribe" means an Indian tribe, Indian band, or

 

Alaskan native village that is recognized by federal law or

 

formally acknowledged by a state.

 

     (f) "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.

     (g) "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).

 

     (h) "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.

 

     (i) "Victim" means that term as defined in 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.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.