Bill Text: MS SB2267 | 2022 | Regular Session | Introduced
Bill Title: Expungement; consolidate statutes concerning.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2022-02-01 - Died In Committee [SB2267 Detail]
Download: Mississippi-2022-SB2267-Introduced.html
MISSISSIPPI LEGISLATURE
2022 Regular Session
To: Judiciary, Division B
By: Senator(s) Norwood
Senate Bill 2267
AN ACT TO CONSOLIDATE THE STATUTES CONCERNING EXPUNGEMENT; TO CREATE A UNIFIED EXPUNGEMENT STATUTE; TO PROVIDE FOR THE LEGAL EFFECT OF AN ORDER TO EXPUNGE; TO PROVIDE FOR EXPUNGEMENT OF MISDEMEANOR AND FELONY CONVICTIONS; TO SPECIFY RECORDS THAT MAY NOT BE EXPUNGED; TO PROVIDE FOR EXPUNGEMENT OF A FIRST OFFENSE DUI CONVICTION; TO PROVIDE FOR EXPUNGEMENT UPON COMPLETION OF INTERVENTION COURT; TO PROVIDE FOR EXPUNGEMENT OF CONVICTIONS FOR PURCHASE OF LIGHT WINE OR BEER BY MINORS; TO PROVIDE FOR CERTAIN NONCONVICTIONS; TO SET FILING FEES ACCORDING TO PRE-EXISTING LAW; TO REQUIRE INTERSTATE IDENTIFICATION INDEX REPORTS; TO REQUIRE CLERKS OF COURT TO SUBMIT POST-EXPUNGEMENT RECORDS; TO AMEND SECTION 9-11-15, MISSISSIPPI CODE OF 1972, TO CONFORM EXPUNGEMENTS IN THE JUSTICE COURTS; TO AMEND SECTION 9-23-23, MISSISSIPPI CODE OF 1972, TO CONFORM EXPUNGEMENTS IN INTERVENTION COURTS; TO AMEND SECTION 21-23-7, MISSISSIPPI CODE OF 1972, TO CONFORM EXPUNGEMENT IN MUNICIPAL COURTS; TO AMEND SECTION 41-29-150, MISSISSIPPI CODE OF 1972, TO CONFORM EXPUNGEMENT OF CERTAIN DRUG CHARGES; TO AMEND SECTION 45-27-21, MISSISSIPPI CODE OF 1972, TO CONFORM RECORD-KEEPING REQUIREMENTS FOR THE CRIMINAL INFORMATION CENTER; TO AMEND SECTION 63-11-30, MISSISSIPPI CODE OF 1972, TO CONFORM THE EXPUNGEMENT OF DUI RECORDS; TO AMEND SECTION 99-15-26, MISSISSIPPI CODE OF 1972, TO CONFORM NONADJUDICATION PROVISIONS; TO REPEAL SECTION 99-15-59, MISSISSIPPI CODE OF 1972, WHICH PROVIDES THAT ANY PERSON WHO IS ARRESTED, ISSUED A CITATION, OR HELD FOR ANY MISDEMEANOR AND NOT FORMALLY CHARGED OR PROSECUTED WITH AN OFFENSE WITHIN 12 MONTHS OF ARREST, OR UPON DISMISSAL OF THE CHARGE, MAY APPLY TO THE COURT WITH JURISDICTION OVER THE MATTER FOR THE CHARGES TO BE EXPUNGED; TO REPEAL SECTION 99-19-71, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR EXPUNGEMENT OF CERTAIN FELONY AND MISDEMEANOR CONVICTION RECORDS; TO REPEAL SECTION 99-19-72, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR FILING FEES FOR CERTAIN PETITIONS FOR EXPUNGEMENT AND THE DISPOSITION THEREOF; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) Legal effect of an order to expunge; eligibility. (a) "Expungement" or "expunction" means the deletion, by court order, of the records of criminal offenses from a person's public records.
(b) (i) Upon entering an order of expungement under this section, a nonpublic record thereof shall be retained by the Mississippi Criminal Information Center solely for the purpose of determining whether, in subsequent proceedings, the person is a first offender.
(ii) The order of expungement shall not preclude a district attorney's office from retaining a nonpublic record thereof for law enforcement purposes only.
(iii) The existence of an order of expungement shall not preclude an employer from asking a prospective employee if the employee has had an order of expungement entered on his behalf.
(c) (i) The effect of an expungement order shall be to restore the person, in the contemplation of the law, to the status he occupied before any arrest or indictment for which convicted, and the person thereafter legally stands as though he had never been arrested, indicted, or convicted of the expunged offense or offenses and may lawfully so respond to any query of prior convictions.
(ii) No person as to whom an expungement order has been entered shall be held thereafter under any provision of law to be guilty of perjury or to have otherwise given a false statement by reason of his failure to recite or acknowledge such arrest, indictment or conviction in response to any inquiry made of him for any purpose other than the purpose of determining, in any subsequent proceedings under this section, whether the person is a first offender. A person as to whom an order has been entered, upon request, shall be required to advise the court, in camera, of the previous conviction and expungement in any legal proceeding wherein the person has been called as a prospective juror. The court shall thereafter and before the selection of the jury advise the attorneys representing the parties of the previous conviction and expungement.
(d) No public official is eligible for expungement of any felony or misdemeanor conviction related to his official duties.
(2) Expungement of misdemeanor convictions. (a) First offender. Any person who has been convicted of a misdemeanor that is not a traffic violation, and who is a first offender, may petition the justice, county, circuit or municipal court in which the conviction was had for an order to expunge any such conviction from all public records.
(b) Multiple misdemeanors. Upon prior notice to the appropriate prosecuting attorney and upon a showing in open court of rehabilitation, good conduct for a period of two (2) years since the last conviction in any court, and that the best interest of society would be served, the justice, municipal, county, or circuit court may, in its discretion, order the record of conviction of a person of any or all misdemeanors in that court expunged.
(c) Records that may not be expunged. The confidential records of law enforcement agencies and the driving record of a person maintained under Title 63, Mississippi Code of 1972, are not subject to expungement under this subsection (2).
(3) Expungement of felony convictions. (a) Except as otherwise provided in this subsection, a person who has been convicted of a felony and who has paid all criminal fines and costs of court imposed in the sentence of conviction may petition the court in which the conviction was had for an order to expunge one (1) conviction from all public records five (5) years after the successful completion of all terms and conditions of the sentence for the conviction upon a hearing as determined in the discretion of the court; however, a person is not eligible to expunge a felony classified as:
(i) A crime of violence as provided in Section 97-3-2;
(ii) Arson, first degree as provided in Sections 97-17-1 and 97-17-3;
(iii) Trafficking in controlled substances as provided in Section 41-29-139;
(iv) A third, fourth or subsequent offense DUI as provided in Section 63-11-30(2)(c) and (2)(d);
(v) Felon in possession of a firearm as provided in Section 97-37-5;
(vi) Failure to register as a sex offender as provided in Section 45-33-33;
(vii) Voyeurism as provided in Section 97-29-61;
(viii) Witness intimidation as provided in Section 97-9-113;
(ix) Abuse, neglect or exploitation of a vulnerable person as provided in Section 43-47-19; or
(x) Embezzlement as provided in Sections 97-11-25 and 97-23-19.
A person is eligible for only one (1) felony expungement under this paragraph (a). For the purposes of this section, the terms "one (1) conviction" and "one (1) felony expungement" mean and include all convictions that arose from a common nucleus of operative facts as determined in the discretion of the court.
(b) The petitioner must give ten (10) days' written notice to the district attorney before any hearing on the petition. In all cases, the court wherein the petition is filed may grant the petition if the court determines, on the record or in writing, that the applicant is rehabilitated from the offense which is the subject of the petition. In those cases where the court denies the petition, the findings of the court in this respect shall be identified specifically and not generally.
(4) (a) DUI convictions. Any person convicted of a first offense of driving under the influence under Section 63-11-30(2) or (3) and who was not the holder of a commercial driver's license or a commercial learning permit at the time of the offense may petition the circuit court of the county in which the conviction was had for an order to expunge the record of the conviction at least five (5) years after successful completion of all terms and conditions of the sentence imposed for the conviction. Expungement under this subsection will only be available to a person:
(i) Who has successfully completed all terms and conditions of the sentence imposed for the conviction;
(ii) Who did not refuse to submit to a test of his blood or breath;
(iii) Whose blood alcohol concentration tested below sixteen one-hundredths percent (.16%) if test results are available;
(iv) Who has not been convicted of and does not have pending any other offense of driving under the influence;
(v) Who has provided the court with justification as to why the conviction should be expunged; and
(vi) Who has not previously had a nonadjudication or expungement of a violation of Section 63-11-30.
(b) A person is eligible for only one (1) expungement under this subsection (4), and the Department of Public Safety shall maintain a permanent confidential registry of all cases of expungement under this subsection for the sole purpose of determining a person's eligibility for expungement, for nonadjudication, or as a first offender under this subsection (4).
(c) The court in its order of expungement shall state in writing the justification for which the expungement was granted and forward the order to the Department of Public Safety within five (5) days of the entry of the order.
(5) Completion of intervention court. If an intervention court participant was sentenced at the time of entry of plea of guilty, and the participant successfully completes the requirements of the intervention court order and other requirements of probation or suspension of sentence, the record of the criminal conviction or adjudication will be expunged. However, no expungement of any implied consent violation shall be allowed in intervention court.
(6) Convictions for purchase of light wine or beer by person under age of twenty-one (21). A person who has been charged with a violation of subsection (1) or (2) of Section 67-3-70, not sooner than one (1) year after the dismissal and discharge or completion of any sentence and payment of any fine, may apply to the court for an order to expunge from all official records all recordation relating to his arrest, trial, finding or plea of guilty, and dismissal and discharge. If the court determines that such person was dismissed and the proceedings against him discharged or that such person had satisfactorily served his sentence and paid any fine, penalties and assessments, it shall enter such order.
(7) Nonconvictions. (a) Expungement of misdemeanor charges. Any person who is arrested, issued a citation, or held for any misdemeanor and is not formally charged or prosecuted for the offense within twelve (12) months of arrest, or upon dismissal of the charge, may apply to the court with jurisdiction over the matter for the charges to be expunged.
(b) Nonadjudication of drug offenses. Upon the dismissal of the charges against a person and discharge of proceedings against him under Section 41-29-150(d), the person may apply to the court for an order to expunge from all official records, other than the nonpublic records to be retained by the bureau under Section 41-29-150(d), all recordation relating to his arrest, indictment, trial, finding of guilt, and dismissal and discharge pursuant to Section 41-29-150. If the court determines, after hearing, that the charge against the person was dismissed and the proceedings against him discharged, or that the person had satisfactorily served his sentence or period of probation and parole, it shall enter an order of expungement.
(c) Upon petition therefor, any circuit, county, justice, or municipal court with jurisdiction over a criminal offense shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed, the charges were dropped, there was no disposition of the case, or the person was found not guilty at trial.
(d) From and after July 1, 2020, upon entry of an order of dismissal or nolle prosequi, the court shall automatically issue an order of expungement on its own motion and send a copy of the order to the defendant or the defendant's attorney.
(8) Filing fees. (a) Felony convictions in circuit court. A filing fee of One Hundred Fifty Dollars ($150.00) is hereby levied on each petition to expunge the record of a conviction in circuit or county court to be collected by the circuit clerk and distributed as follows:
(i) One Hundred Forty Dollars ($140.00) to be deposited into the State General Fund; and
(ii) Ten Dollars ($10.00) to be retained by the circuit clerk collecting the fee.
(b) There shall be no filing fee levied on petitions seeking expungement of offenses in cases where the petitioner was arrested and released and the case was dismissed or the charges were dropped or there was no disposition of the case.
(c) Misdemeanor convictions in justice and municipal courts. The filing fee for expungement shall be as provided by law.
(9) Interstate Identification Index reports. Upon notice of the filing of an expungement petition, the appropriate prosecuting attorney or criminal court clerk must run a background check through the Federal Bureau of Investigation's National Crime Information Center Interstate Identification Index and present the results of the report to the criminal court.
(10) Post-expungement records. A certified copy of every expungement order shall be sent by the clerk of the circuit, county, justice, or municipal court that issued the order to the Mississippi Criminal Information Center where it shall be maintained in a separate confidential database accessible only upon written request by a district attorney, a county prosecuting attorney, a municipal court prosecuting attorney, the Attorney General of Mississippi and the Mississippi Law Enforcement Officer Standards and Training Board. A criminal conviction that has been expunged may be used for the purpose of determining habitual offender status and for the use of the Mississippi Law Enforcement Officer Standards and Training Board in granting or denying law enforcement certification, and to ensure that a person is eligible for first-offender status only one (1) time.
SECTION 2. Section 9-11-15, Mississippi Code of 1972, is amended as follows:
9-11-15. (1) Justice court
judges shall hold regular terms of their courts, at such times as they may
appoint, not exceeding two (2) and not less than one (1) in every month, at the
appropriate justice court courtroom established by the board of supervisors;
and they may continue to hold their courts from day to day so long as business
may require; and all process shall be returnable, and all trials shall take
place at such regular terms, except where it is otherwise provided; but where
the defendant is a nonresident or transient person, and it shall be shown by
the oath of either party that a delay of the trial until the regular term will
be of material injury to him, it shall be lawful for the judge to have the
parties brought before him at any reasonable time and hear the evidence and
give judgment or where the defendant is a nonresident or transient person and
the judge and all parties agree, it shall be lawful for the judge to have the
parties brought before him on the day a citation is made and hear the evidence
and give judgment. Such court shall be a court of record, with all the power
incident to a court of record, including power to fine in the amount of fine
and length of imprisonment as is authorized for a municipal court in Section 21-23-7( * * *9) for contempt of court.
(2) (a) In counties with a population of less than one hundred fifty thousand (150,000), each justice court shall designate at least one-half (1/2) day each month as a traffic court day, sufficient to handle the traffic violations docket of that court, and shall notify all appropriate law enforcement agencies of the date or dates. On the day or days so designated, the justice court shall give priority to all cases involving traffic violations.
(b) In counties with a population of one hundred fifty thousand (150,000) or more, each justice court shall designate at least one (1) day each month as a traffic court day, sufficient to handle the traffic violations of that court, and shall notify all appropriate law enforcement agencies of the date or dates. On the day or days so designated, the justice court shall give priority to all cases involving traffic violations. The one (1) day may be one (1) whole day or it may be divided into half days as long as one-half (1/2) day is held in the morning and one-half (1/2) day is held in the afternoon, in the discretion of the court.
* * *
SECTION 3. Section 9-23-23, Mississippi Code of 1972, is amended as follows:
9-23-23. If the participant completes all requirements imposed upon him by the intervention court, including the payment of fines and fees assessed and not waived by the court, the charge and prosecution shall be dismissed. If the defendant or participant was sentenced at the time of entry of plea of guilty, the successful completion of the intervention court order and other requirements of probation or suspension of sentence will result in the record of the criminal conviction or adjudication being expunged as provided in Section 1 of this act. However, no expunction of any implied consent violation shall be allowed.
SECTION 4. Section 21-23-7, Mississippi Code of 1972, is amended as follows:
21-23-7. (1) The municipal
judge shall hold court in a public building designated by the governing authorities
of the municipality, or may hold court in an adult detention center as provided
under this subsection, and may hold court every day except Sundays and legal holidays
if the business of the municipality so requires; provided, however, the municipal
judge may hold court outside the boundaries of the municipality but not more than
within a sixty-mile radius of the municipality to handle preliminary matters and
criminal matters such as initial appearances and felony preliminary hearings. The
municipal judge may hold court outside the boundaries of the municipality but not
more than within a one-mile radius of the municipality for any purpose; however,
a municipal judge may hold court outside the boundaries of the municipality more
than within a one-mile radius of the municipality when accepting a plea of a defendant
at an adult detention center within the county. The municipal judge shall have
the jurisdiction to hear and determine, without a jury and without a record of the
testimony, all cases charging violations of the municipal ordinances and state misdemeanor
laws made offenses against the municipality and to punish offenders therefor as
may be prescribed by law. Except as otherwise provided by law, criminal proceedings
shall be brought by sworn complaint filed in the municipal court. Such complaint
shall state the essential elements of the offense charged and the statute or ordinance
relied upon. Such complaint shall not be required to conclude with a general averment
that the offense is against the peace and dignity of the state or in violation of
the ordinances of the municipality. He may sit as a committing court in all felonies
committed within the municipality, and he shall have the power to bind over the
accused to the grand jury or to appear before the proper court having jurisdiction
to try the same, and to set the amount of bail or refuse bail and commit the accused
to jail in cases not bailable. The municipal judge is a conservator of the peace
within his municipality. He may conduct preliminary hearings in all violations
of the criminal laws of this state occurring within the municipality, and any person
arrested for a violation of law within the municipality may be brought before him
for initial appearance. The municipal court shall have jurisdiction of any case
remanded to it by a circuit court grand jury. The municipal court shall have civil
jurisdiction over actions filed pursuant to and as provided in Chapter 21,
Title 93, * * *
Mississippi Code of 1972, the Protection from Domestic Abuse Act.
(2) In the discretion of the court, where the objects of justice would be more likely met, as an alternative to imposition or payment of fine and/or incarceration, the municipal judge shall have the power to sentence convicted offenders to work on a public service project where the court has established such a program of public service by written guidelines filed with the clerk for public record. Such programs shall provide for reasonable supervision of the offender and the work shall be commensurate with the fine and/or incarceration that would have ordinarily been imposed. Such program of public service may be utilized in the implementation of the provisions of Section 99-19-20, and public service work thereunder may be supervised by persons other than the sheriff.
(3) The municipal judge may solemnize marriages, take oaths, affidavits and acknowledgments, and issue orders, subpoenas, summonses, citations, warrants for search and arrest upon a finding of probable cause, and other such process under seal of the court to any county or municipality, in a criminal case, to be executed by the lawful authority of the county or the municipality of the respondent, and enforce obedience thereto. The absence of a seal shall not invalidate the process.
(4) When a person shall be charged with an offense in municipal court punishable by confinement, the municipal judge, being satisfied that such person is an indigent person and is unable to employ counsel, may, in the discretion of the court, appoint counsel from the membership of The Mississippi Bar residing in his county who shall represent him. Compensation for appointed counsel in criminal cases shall be approved and allowed by the municipal judge and shall be paid by the municipality. The maximum compensation shall not exceed Two Hundred Dollars ($200.00) for any one (1) case. The governing authorities of a municipality may, in their discretion, appoint a public defender(s) who must be a licensed attorney and who shall receive a salary to be fixed by the governing authorities.
(5) The municipal judge of any municipality is hereby authorized to suspend the sentence and to suspend the execution of the sentence, or any part thereof, on such terms as may be imposed by the municipal judge. However, the suspension of imposition or execution of a sentence hereunder may not be revoked after a period of two (2) years. The municipal judge shall have the power to establish and operate a probation program, dispute resolution program and other practices or procedures appropriate to the judiciary and designed to aid in the administration of justice. Any such program shall be established by the court with written policies and procedures filed with the clerk of the court for public record. Subsequent to original sentencing, the municipal judge, in misdemeanor cases, is hereby authorized to suspend sentence and to suspend the execution of a sentence, or any part thereof, on such terms as may be imposed by the municipal judge, if (a) the judge or his or her predecessor was authorized to order such suspension when the sentence was originally imposed; and (b) such conviction (i) has not been appealed; or (ii) has been appealed and the appeal has been voluntarily dismissed.
* * *
( * * *6) In the discretion of the court, a plea
of nolo contendere may be entered to any charge in municipal court. Upon the entry
of a plea of nolo contendere the court shall convict the defendant of the offense
charged and shall proceed to sentence the defendant according to law. The judgment
of the court shall reflect that the conviction was on a plea of nolo contendere.
An appeal may be made from a conviction on a plea of nolo contendere as in other
cases.
( * * *7) Upon execution of a sworn complaint
charging a misdemeanor, the municipal court may, in its discretion and in lieu of
an arrest warrant, issue a citation requiring the appearance of the defendant to
answer the charge made against him. On default of appearance, an arrest warrant
may be issued for the defendant. The clerk of the court or deputy clerk may issue
such citations.
( * * *8) The municipal court shall have the
power to make rules for the administration of the court's business, which rules,
if any, shall be in writing filed with the clerk of the court and shall include
the enactment of rules related to the court's authority to issue domestic abuse
protection orders pursuant to Section 93-21-1 et seq.
( * * *9) The municipal court shall have the
power to impose punishment of a fine of not more than One Thousand Dollars ($1,000.00)
or six (6) months imprisonment, or both, for contempt of court. The municipal court
may have the power to impose reasonable costs of court, not in excess of the following:
Dismissal of any affidavit, complaint or charge
in municipal court...................................... $ 50.00
Suspension of a minor's driver's license in lieu of
conviction............................................. $ 50.00
Service of scire facias or return "not found"....... $ 20.00
Causing search warrant to issue or causing
prosecution without reasonable cause or refusing to
cooperate after initiating action....................... $ 100.00
Certified copy of the court record................. $ 5.00
Service of arrest warrant for failure to answer
citation or traffic summons............................. $ 25.00
Jail cost per day - actual jail cost paid by the municipality but not to exceed......................................... $ 35.00
Service of court documents related to the filing
of a petition or issuance of a protection from domestic
abuse order under Chapter 21,
Title 93, * * *
Mississippi Code of 1972 ....................................................... $
25.00
Expungement....................................... $ 50.00
Any other item of court cost....................... $ 50.00
No filing fee or such cost shall be imposed for the bringing of an action in municipal court.
( * * *10) A municipal court judge shall not
dismiss a criminal case but may transfer the case to the justice court of the county
if the municipal court judge is prohibited from presiding over the case by the Canons
of Judicial Conduct and provided that venue and jurisdiction are proper in the justice
court. Upon transfer of any such case, the municipal court judge shall give the
municipal court clerk a written order to transmit the affidavit or complaint and
all other records and evidence in the court's possession to the justice court by
certified mail or to instruct the arresting officer to deliver such documents and
records to the justice court. There shall be no court costs charged for the transfer
of the case to the justice court.
* * *
( * * *11) For violations of municipal ordinances
related to real property, the municipal judge shall have the power to order a defendant
to remedy violations within a reasonable time period as set by the judge, and at
the discretion of the judge, the judge may simultaneously authorize the municipality,
at its request, the option to remedy the violation itself, through the use of its
own employees or its contractors, without further notice should the defendant fail
to fully do so within the time period set by the judge. Subsequent to the municipality
remedying the violation, the municipality may petition the court to assess documented
cleanup costs to the defendant, and, if, following a hearing on such petition, the
judge determines (a) the violations were not remedied by the defendant within the
time required by the court, (b) that the municipality remedied the violation itself
after such time period expired and (c) that the costs incurred by the municipality
were reasonable, the court may assess the costs to the defendant as a judgement,
which may be enrolled in the office of the circuit clerk.
SECTION 5. Section 41-29-150, Mississippi Code of 1972, is amended as follows:
41-29-150. (a) Any person convicted under Section 41-29-139 may be required, in the discretion of the court, as a part of the sentence otherwise imposed, or in lieu of imprisonment in cases of probation or suspension of sentence, to attend a course of instruction conducted by the bureau, the State Board of Health, or any similar agency, on the effects, medically, psychologically and socially, of the misuse of controlled substances. The course may be conducted at any correctional institution, detention center or hospital, or at any center or treatment facility established for the purpose of education and rehabilitation of those persons committed because of abuse of controlled substances.
(b) Any person convicted under Section 41-29-139 who is found to be dependent upon or addicted to any controlled substance shall be required, as a part of the sentence otherwise imposed, or in lieu of imprisonment in cases of parole, probation or suspension of sentence, to receive medical treatment for such dependency or addiction. The regimen of medical treatment may include confinement in a medical facility of any correctional institution, detention center or hospital, or at any center or facility established for treatment of those persons committed because of a dependence or addiction to controlled substances.
(c) Those persons previously convicted of a felony under Section 41-29-139 and who are now confined at the Mississippi State Hospital at Whitfield, Mississippi, or at the East Mississippi State Hospital at Meridian, Mississippi, for the term of their sentence shall remain under the jurisdiction of the Mississippi Department of Corrections and shall be required to abide by all reasonable rules and regulations promulgated by the director and staff of said institutions and of the Department of Corrections. Any persons so confined who shall refuse to abide by said rules or who attempt an escape or who shall escape shall be transferred to the State Penitentiary or to a county jail, where appropriate, to serve the remainder of the term of imprisonment; this provision shall not preclude prosecution and conviction for escape from said institutions.
(d) (1) If any person who has not previously been convicted of violating Section 41-29-139, or the laws of the United States or of another state relating to narcotic drugs, stimulant or depressant substances, other controlled substances or marihuana is found to be guilty of a violation of subsection (c) or (d) of Section 41-29-139, after trial or upon a plea of guilty, the court may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place him on probation upon such reasonable conditions as it may require and for such period, not to exceed three (3) years, as the court may prescribe. Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided. The court may, in its discretion, dismiss the proceedings against such person and discharge him from probation before the expiration of the maximum period prescribed for such person's probation. If during the period of his probation such person does not violate any of the conditions of the probation, then upon expiration of such period the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this subsection shall be without court adjudication of guilt, but a nonpublic record thereof shall be retained by the bureau solely for the purpose of use by the courts in determining whether or not, in subsequent proceedings, such person qualifies under this subsection. Such discharge or dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the penalties prescribed under this article for second or subsequent conviction, or for any other purpose. Discharge and dismissal under this subsection may occur only once with respect to any person; and
(2) Upon the dismissal
of a person and discharge of proceedings against him under paragraph (1) of
this subsection, the person may apply to the court for an expungement
order * * * under Section 1 of
this act.
(e) Every person who has been or may hereafter be convicted of a felony offense under Section 41-29-139 and sentenced under Section 41-29-150(c) shall be under the jurisdiction of the Mississippi Department of Corrections.
(f) It shall be unlawful for any person confined under the provisions of subsection (b) or (c) of this section to escape or attempt to escape from said institution, and, upon conviction, said person shall be guilty of a felony and shall be imprisoned for a term not to exceed two (2) years.
(g) It is the intent and purpose of the Legislature to promote the rehabilitation of persons convicted of offenses under the Uniform Controlled Substances Law.
SECTION 6. Section 45-27-21, Mississippi Code of 1972, is amended as follows:
45-27-21. A certified copy
of every * * * nonadjudication order shall be sent by the circuit clerk to the
Mississippi Criminal Information Center where it shall be maintained in a
separate confidential database accessible only upon written request by a
district attorney, a county prosecuting attorney, a municipal court prosecuting
attorney, the Attorney General of Mississippi and the Mississippi Law
Enforcement Officer Standards and Training Board. Any criminal
conviction which has been * * *
nonadjudicated may be used for the purpose of determining habitual offender
status and for the use of the Mississippi Law Enforcement Officer
Standards and Training Board in * * * granting or denying law enforcement certification,
and to ensure that a person is only eligible for first-offender status one (1)
time.
SECTION 7. Section 63-11-30, Mississippi Code of 1972, is amended as follows:
63-11-30. (1) It is unlawful for a person to drive or otherwise operate a vehicle within this state if the person:
(a) Is under the influence of intoxicating liquor;
(b) Is under the influence of any other substance that has impaired the person's ability to operate a motor vehicle;
(c) Is under the influence of any drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law; or
(d) Has an alcohol concentration in the person's blood, based upon grams of alcohol per one hundred (100) milliliters of blood, or grams of alcohol per two hundred ten (210) liters of breath, as shown by a chemical analysis of the person's breath, blood or urine administered as authorized by this chapter, of:
(i) Eight one-hundredths percent (.08%) or more for a person who is above the legal age to purchase alcoholic beverages under state law;
(ii) Two one-hundredths percent (.02%) or more for a person who is below the legal age to purchase alcoholic beverages under state law; or
(iii) Four one-hundredths percent (.04%) or more for a person operating a commercial motor vehicle.
(2) Except as otherwise provided in subsection (3) of this section (Zero Tolerance for Minors):
(a) First offense DUI. (i) Upon conviction of any person for the first offense of violating subsection (1) of this section where chemical tests under Section 63-11-5 were given, or where chemical test results are not available, the person shall be fined not less than Two Hundred Fifty Dollars ($250.00) nor more than One Thousand Dollars ($1,000.00), or imprisoned for not more than forty-eight (48) hours in jail, or both; the court shall order the person to attend and complete an alcohol safety education program as provided in Section 63-11-32 within six (6) months of sentencing. The court may substitute attendance at a victim impact panel instead of forty-eight (48) hours in jail.
(ii) Suspension of commercial driving privileges is governed by Section 63-1-216.
(iii) A qualifying first offense may be nonadjudicated by the court under subsection (14) of this section. The holder of a commercial driver's license or a commercial learning permit at the time of the offense is ineligible for nonadjudication.
(iv) Eligibility for an interlock-restricted license is governed by Section 63-11-31 and suspension of regular driving privileges is governed by Section 63-11-23.
(b) Second offense DUI. (i) Upon any second conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, the person shall be guilty of a misdemeanor, fined not less than Six Hundred Dollars ($600.00) nor more than One Thousand Five Hundred Dollars ($1,500.00), shall be imprisoned not less than five (5) days nor more than six (6) months and sentenced to community service work for not less than ten (10) days nor more than six (6) months. The minimum penalties shall not be suspended or reduced by the court and no prosecutor shall offer any suspension or sentence reduction as part of a plea bargain.
(ii) Suspension of commercial driving privileges is governed by Section 63-1-216.
(iii) Eligibility for an interlock-restricted license is governed by Section 63-11-31 and suspension of regular driving privileges is governed by Section 63-11-23.
(c) Third offense DUI. (i) For a third conviction of a person for violating subsection (1) of this section, the offenses being committed within a period of five (5) years, the person shall be guilty of a felony and fined not less than Two Thousand Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,000.00), and shall serve not less than one (1) year nor more than five (5) years in the custody of the Department of Corrections. For any offense that does not result in serious injury or death to any person, the sentence of incarceration may be served in the county jail rather than in the State Penitentiary at the discretion of the circuit court judge. The minimum penalties shall not be suspended or reduced by the court and no prosecutor shall offer any suspension or sentence reduction as part of a plea bargain.
(ii) The suspension of commercial driving privileges is governed by Section 63-1-216.
(iii) The suspension of regular driving privileges is governed by Section 63-11-23.
(d) Fourth and subsequent offense DUI. (i) For any fourth or subsequent conviction of a violation of subsection (1) of this section, without regard to the time period within which the violations occurred, the person shall be guilty of a felony and fined not less than Three Thousand Dollars ($3,000.00) nor more than Ten Thousand Dollars ($10,000.00), and shall serve not less than two (2) years nor more than ten (10) years in the custody of the Department of Corrections.
(ii) The suspension of commercial driving privileges is governed by Section 63-1-216.
(iii) A person convicted of a fourth or subsequent offense is ineligible to exercise the privilege to operate a motor vehicle that is not equipped with an ignition-interlock device for ten (10) years.
(e) Any person convicted of a second or subsequent violation of subsection (1) of this section shall receive an in-depth diagnostic assessment, and if as a result of the assessment is determined to be in need of treatment for alcohol or drug abuse, the person must successfully complete treatment at a program site certified by the Department of Mental Health. Each person who receives a diagnostic assessment shall pay a fee representing the cost of the assessment. Each person who participates in a treatment program shall pay a fee representing the cost of treatment.
(f) The use of ignition-interlock devices is governed by Section 63-11-31.
(3) Zero Tolerance for Minors. (a) This subsection shall be known and may be cited as Zero Tolerance for Minors. The provisions of this subsection shall apply only when a person under the age of twenty-one (21) years has a blood alcohol concentration of two one-hundredths percent (.02%) or more, but lower than eight one-hundredths percent (.08%). If the person's blood alcohol concentration is eight one-hundredths percent (.08%) or more, the provisions of subsection (2) shall apply.
(b) (i) A person under the age of twenty-one (21) is eligible for nonadjudication of a qualifying first offense by the court pursuant to subsection (14) of this section.
(ii) Upon conviction of any person under the age of twenty-one (21) years for the first offense of violating subsection (1) of this section where chemical tests provided for under Section 63-11-5 were given, or where chemical test results are not available, the person shall be fined Two Hundred Fifty Dollars ($250.00); the court shall order the person to attend and complete an alcohol safety education program as provided in Section 63-11-32 within six (6) months. The court may also require attendance at a victim impact panel.
(c) A person under the age of twenty-one (21) years who is convicted of a second violation of subsection (1) of this section, the offenses being committed within a period of five (5) years, shall be fined not more than Five Hundred Dollars ($500.00).
(d) A person under the age of twenty-one (21) years who is convicted of a third or subsequent violation of subsection (1) of this section, the offenses being committed within a period of five (5) years, shall be fined not more than One Thousand Dollars ($1,000.00).
(e) License suspension is governed by Section 63-11-23 and ignition interlock is governed by Section 63-11-31.
(f) Any person under the age of twenty-one (21) years convicted of a third or subsequent violation of subsection (1) of this section must complete treatment of an alcohol or drug abuse program at a site certified by the Department of Mental Health.
(4) DUI test refusal. In addition to the other penalties provided in this section, every person refusing a law enforcement officer's request to submit to a chemical test of the person's breath as provided in this chapter, or who was unconscious at the time of a chemical test and refused to consent to the introduction of the results of the test in any prosecution, shall suffer an additional administrative suspension of driving privileges as set forth in Section 63-11-23.
(5) Aggravated DUI. (a) Every person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose or any other limb, organ or member of another shall, upon conviction, be guilty of a separate felony for each victim who suffers death, mutilation, disfigurement or other injury and shall be committed to the custody of the State Department of Corrections for a period of time of not less than five (5) years and not to exceed twenty-five (25) years for each death, mutilation, disfigurement or other injury, and the imprisonment for the second or each subsequent conviction, in the discretion of the court, shall commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction. Any person charged with causing the death of another as described in this subsection shall be required to post bail before being released after arrest.
(b) A holder of a
commercial driver's license who is convicted of operating a commercial motor
vehicle with an alcohol concentration of eight one- * * *hundredths percent (.08%) or
more shall be guilty of a felony and shall be committed to the custody of the Department
of Corrections for not less than two (2) years and not more than ten (10)
years.
(c) The court shall order an ignition-interlock restriction on the offender's privilege to drive as a condition of probation or post-release supervision not to exceed five (5) years unless a longer restriction is required under other law. The ignition-interlock restriction shall not be applied to commercial license privileges until the driver serves the full disqualification period required by Section 63-1-216.
(6) DUI citations. (a) Upon conviction of a violation of subsection (1) of this section, the trial judge shall sign in the place provided on the traffic ticket, citation or affidavit stating that the person arrested either employed an attorney or waived his right to an attorney after having been properly advised. If the person arrested employed an attorney, the name, address and telephone number of the attorney shall be written on the ticket, citation or affidavit. The court clerk must immediately send a copy of the traffic ticket, citation or affidavit, and any other pertinent documents concerning the conviction or other order of the court, to the Department of Public Safety as provided in Section 63-11-37.
(b) A copy of the traffic ticket, citation or affidavit and any other pertinent documents, having been attested as true and correct by the Commissioner of Public Safety, or his designee, shall be sufficient proof of the conviction for purposes of determining the enhanced penalty for any subsequent convictions of violations of subsection (1) of this section. The Department of Public Safety shall maintain a central database for verification of prior offenses and convictions.
(7) Out-of-state prior convictions. Convictions in another state, territory or possession of the United States, or under the law of a federally recognized Native American tribe, of violations for driving or operating a vehicle while under the influence of an intoxicating liquor or while under the influence of any other substance that has impaired the person's ability to operate a motor vehicle occurring within five (5) years before an offense shall be counted for the purposes of determining if a violation of subsection (1) of this section is a second, third, fourth or subsequent offense and the penalty that shall be imposed upon conviction for a violation of subsection (1) of this section.
(8) Charging of subsequent offenses. (a) For the purposes of determining how to impose the sentence for a second, third, fourth or subsequent conviction under this section, the affidavit or indictment shall not be required to enumerate previous convictions. It shall only be necessary that the affidavit or indictment states the number of times that the defendant has been convicted and sentenced within the past five (5) years for a second or third offense, or without a time limitation for a fourth or subsequent offense, under this section to determine if an enhanced penalty shall be imposed. The amount of fine and imprisonment imposed in previous convictions shall not be considered in calculating offenses to determine a second, third, fourth or subsequent offense of this section.
(b) Before a defendant enters a plea of guilty to an offense under this section, law enforcement must submit certification to the prosecutor that the defendant's driving record, the confidential registry and National Crime Information Center record have been searched for all prior convictions, nonadjudications, pretrial diversions and arrests for driving or operating a vehicle while under the influence of an intoxicating liquor or while under the influence of any other substance that has impaired the person's ability to operate a motor vehicle. The results of the search must be included in the certification.
(9) License eligibility for underage offenders. A person who is under the legal age to obtain a license to operate a motor vehicle at the time of the offense and who is convicted under this section shall not be eligible to receive a driver's license until the person reaches the age of eighteen (18) years.
(10) License suspensions and restrictions to run consecutively. Suspension or restriction of driving privileges for any person convicted of or nonadjudicated for violations of subsection (1) of this section shall run consecutively to and not concurrently with any other administrative license suspension.
(11) Ignition interlock. If the court orders installation and use of an ignition-interlock device as provided in Section 63-11-31 for every vehicle operated by a person convicted or nonadjudicated under this section, each device shall be installed, maintained and removed as provided in Section 63-11-31.
(12) DUI child endangerment. A person over the age of twenty-one (21) who violates subsection (1) of this section while transporting in a motor vehicle a child under the age of sixteen (16) years is guilty of the separate offense of endangering a child by driving under the influence of alcohol or any other substance which has impaired the person's ability to operate a motor vehicle. The offense of endangering a child by driving under the influence of alcohol or any other substance which has impaired the person's ability to operate a motor vehicle shall not be merged with an offense of violating subsection (1) of this section for the purposes of prosecution and sentencing. An offender who is convicted of a violation of this subsection shall be punished as follows:
(a) A person who commits a violation of this subsection which does not result in the serious injury or death of a child and which is a first conviction shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than One Thousand Dollars ($1,000.00) or shall be imprisoned for not more than twelve (12) months, or both;
(b) A person who commits a violation of this subsection which does not result in the serious injury or death of a child and which is a second conviction shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00) or shall be imprisoned for one (1) year, or both;
(c) A person who commits a violation of this subsection which does not result in the serious injury or death of a child and which is a third or subsequent conviction shall be guilty of a felony and, upon conviction, shall be fined not less than Ten Thousand Dollars ($10,000.00) or shall be imprisoned for not less than one (1) year nor more than five (5) years, or both; and
(d) A person who commits a violation of this subsection which results in the serious injury or death of a child, without regard to whether the offense was a first, second, third or subsequent offense, shall be guilty of a felony and, upon conviction, shall be punished by a fine of not less than Ten Thousand Dollars ($10,000.00) and shall be imprisoned for not less than five (5) years nor more than twenty-five (25) years.
(13) * * *
[Deleted]
(14) Nonadjudication. (a) For the purposes of this chapter, "nonadjudication" means that the court withholds adjudication of guilt and sentencing, either at the conclusion of a trial on the merits or upon the entry of a plea of guilt by a defendant, and places the defendant in a nonadjudication program conditioned upon the successful completion of the requirements imposed by the court under this subsection.
(b) A person is eligible for nonadjudication of an offense under this Section 63-11-30 only one (1) time under any provision of a law that authorizes nonadjudication and only for an offender:
(i) Who has successfully completed all terms and conditions imposed by the court after placement of the defendant in a nonadjudication program;
(ii) Who was not the holder of a commercial driver's license or a commercial learning permit at the time of the offense;
(iii) Who has not previously been convicted of and does not have pending any former or subsequent charges under this section; and
(iv) Who has provided the court with justification as to why nonadjudication is appropriate.
(c) Nonadjudication may be initiated upon the filing of a petition for nonadjudication or at any stage of the proceedings in the discretion of the court; the court may withhold adjudication of guilt, defer sentencing, and upon the agreement of the offender to participate in a nonadjudication program, enter an order imposing requirements on the offender for a period of court supervision before the order of nonadjudication is entered. Failure to successfully complete a nonadjudication program subjects the person to adjudication of the charges against him and to imposition of all penalties previously withheld due to entrance into a nonadjudication program. The court shall immediately inform the commissioner of the conviction as required in Section 63-11-37.
(i) The court shall order the person to:
1. Pay the nonadjudication fee imposed under Section 63-11-31 if applicable;
2. Pay all fines, penalties and assessments that would have been imposed for conviction;
3. Attend and complete an alcohol safety education program as provided in Section 63-11-32 within six (6) months of the date of the order;
4. a. If the court determines that the person violated this section with respect to alcohol or intoxicating liquor, the person must install an ignition-interlock device on every motor vehicle operated by the person, obtain an interlock-restricted license, and maintain that license for one hundred twenty (120) days or suffer a one-hundred-twenty-day suspension of the person's regular driver's license, during which time the person must not operate any vehicle.
b. If the court determines that the person violated this section by operating a vehicle when under the influence of a substance other than alcohol that has impaired the person's ability to operate a motor vehicle, including any drug or controlled substance which is unlawful to possess under the Mississippi Controlled Substances Law, the person must submit to a one-hundred-twenty-day period of a nonadjudication program that includes court-ordered drug testing at the person's own expense not less often than every thirty (30) days, during which time the person may drive if compliant with the terms of the program, or suffer a one-hundred-twenty-day suspension of the person's regular driver's license, during which time the person will not operate any vehicle.
(ii) Other conditions that may be imposed by the court include, but are not limited to, alcohol or drug screening, or both, proof that the person has not committed any other traffic violations while under court supervision, proof of immobilization or impoundment of vehicles owned by the offender if required, and attendance at a victim-impact panel.
(d) The court may enter an order of nonadjudication only if the court finds, after a hearing or after ex parte examination of reliable documentation of compliance, that the offender has successfully completed all conditions imposed by law and previous orders of the court. The court shall retain jurisdiction over cases involving nonadjudication for a period of not more than two (2) years.
(e) (i) The clerk shall immediately forward a record of every person placed in a nonadjudication program and of every nonadjudication order to the Department of Public Safety for inclusion in the permanent confidential registry of all cases that are nonadjudicated under this subsection (14).
(ii) Judges, clerks and prosecutors involved in the trial of implied consent violations and law enforcement officers involved in the issuance of citations for implied consent violations shall have secure online access to the confidential registry for the purpose of determining whether a person has previously been the subject of a nonadjudicated case and 1. is therefore ineligible for another nonadjudication; 2. is ineligible as a first offender for a violation of this section; or 3. is ineligible for expunction of a conviction of a violation of this section.
(iii) The Driver Services Bureau of the department shall have access to the confidential registry for the purpose of determining whether a person is eligible for a form of license not restricted to operating a vehicle equipped with an ignition-interlock device.
(iv) The Mississippi Alcohol Safety Education Program shall have secure online access to the confidential registry for research purposes only.
SECTION 8. Section 99-15-26, Mississippi Code of 1972, is amended as follows:
99-15-26. (1) (a) In all criminal cases, felony and misdemeanor, other than crimes against the person, a crime of violence as defined in Section 97-3-2, a violation of Section 97-11-31, or crimes in which a person unlawfully takes, obtains or misappropriates funds received by or entrusted to the person by virtue of his or her public office or employment, the circuit or county court shall be empowered, upon the entry of a plea of guilty by a criminal defendant made on or after July 1, 2014, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.
(b) In all misdemeanor criminal cases, other than crimes against the person, the justice or municipal court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.
(c) Notwithstanding paragraph (a) of this subsection (1), in all criminal cases charging a misdemeanor of domestic violence as defined in Section 99-3-7(5), a circuit, county, justice or municipal court shall be empowered, upon the entry of a plea of guilty by the criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.
(d) No person having previously qualified under the provisions of this section shall be eligible to qualify for release in accordance with this section for a repeat offense. A person shall not be eligible to qualify for release in accordance with this section if charged with the offense of trafficking of a controlled substance as provided in Section 41-29-139(f) or if charged with an offense under the Mississippi Implied Consent Law. Violations under the Mississippi Implied Consent Law can only be nonadjudicated under the provisions of Section 63-11-30.
(2) (a) Conditions which the circuit, county, justice or municipal court may impose under subsection (1) of this section shall consist of:
(i) Reasonable restitution to the victim of the crime.
(ii) Performance of not more than nine hundred sixty (960) hours of public service work approved by the court.
(iii) Payment of a fine not to exceed the statutory limit.
(iv) Successful completion of drug, alcohol, psychological or psychiatric treatment, successful completion of a program designed to bring about the cessation of domestic abuse, or any combination thereof, if the court deems treatment necessary.
(v) The circuit or county court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed five (5) years. The justice or municipal court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed two (2) years.
(b) Conditions which the circuit or county court may impose under subsection (1) of this section also include successful completion of an effective evidence-based program or a properly controlled pilot study designed to contribute to the evidence-based research literature on programs targeted at reducing recidivism. Such program or pilot study may be community based or institutionally based and should address risk factors identified in a formal assessment of the offender's risks and needs.
(3) When the court has imposed upon the defendant the conditions set out in this section, the court shall release the bail bond, if any.
(4) Upon successful completion of the court-imposed conditions permitted by subsection (2) of this section, the court shall direct that the cause be dismissed and the case be closed.
* * *
SECTION 9. Section 99-15-59, Mississippi Code of 1972, which provides that any person who is arrested, issued a citation, or held for any misdemeanor and not formally charged or prosecuted with an offense within twelve (12) months of arrest, or upon dismissal of the charge, may apply to the court with jurisdiction over the matter for the charges to be expunged, is repealed.
SECTION 10. Section 99-19-71, Mississippi Code of 1972, which provides for expungement of certain felony and misdemeanor conviction records, is repealed.
SECTION 11. Section 99-19-72, Mississippi Code of 1972, which provides for filing fees for certain petitions for expungement and the disposition thereof, is repealed.
SECTION 12. This act shall take effect and be in force from and after July 1, 2022.
