SB-0632, As Passed Senate, December 13, 2012

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 632

     A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending section 7411 (MCL 333.7411), as amended by 2004 PA 225.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 7411. (1) When an individual who has not previously been

convicted of an offense under this article or under any statute of

the United States or of any state relating to narcotic drugs, coca

leaves, marihuana, or stimulant, depressant, or hallucinogenic

drugs, pleads guilty to or is found guilty of possession of a

controlled substance under section 7403(2)(a)(v), 7403(2)(b), (c),

or (d), or of use of a controlled substance under section 7404, or

possession or use of an imitation controlled substance under

section 7341 for a second time, the court, without entering a

judgment of guilt with the consent of the accused, may defer

further proceedings and place the individual on probation upon

terms and conditions that shall include, but are not limited to,

payment of a probation supervision fee as prescribed in section 3c

of chapter XI of the code of criminal procedure, 1927 PA 175, MCL

771.3c. The terms and conditions of probation may include

participation in a drug treatment court under chapter 10A of the

revised judicature act of 1961, 1961 PA 236, MCL 600.1060 to

600.1082 600.1084. Upon violation of a term or condition, the court

may enter an adjudication of guilt and proceed as otherwise

provided. Upon fulfillment of the terms and conditions, the court

shall discharge the individual and dismiss the proceedings.

Discharge and dismissal under this section shall be without

adjudication of guilt and, except as otherwise provided in

subsection (2)(b), by law, is not a conviction for purposes of this

section or for purposes of disqualifications or disabilities

imposed by law upon conviction of a crime, including the additional

penalties imposed for second or subsequent convictions under

section 7413. There may be only 1 discharge and dismissal under

this section as to an individual.

     (2) The records and identifications division of the department

of state police shall retain a nonpublic record of an arrest and

discharge or dismissal under this section. This record shall be

furnished to any or all of the following:

     (a) To a court, police agency, or office of a prosecuting

attorney upon request for the purpose of showing that a defendant

in a criminal action involving the possession or use of a

controlled substance, or an imitation controlled substance as

defined in section 7341, covered in this article has already once

utilized this section.

     (b) To a court, police agency, or prosecutor upon request for

the purpose of determining whether the defendant in a criminal

action is eligible for discharge and dismissal of proceedings by a

drug treatment court under section 1076(4) of the revised

judicature act of 1961, 1961 PA 236, MCL 600.1076.

     (c) To the state department of corrections, a law enforcement

agency, a court, or the office of a prosecuting attorney upon

request of the department, law enforcement agency, court, or office

of a prosecuting attorney, subject to all of the following

conditions:

     (i) At the time of the request, the individual is an employee

of the department, law enforcement agency, court, or office of

prosecuting attorney or an applicant for employment with the

department, law enforcement agency, court, or office of prosecuting

attorney.

     (ii) If the individual is an employee of the department, law

enforcement agency, court, or prosecuting attorney, the date on

which the court placed the individual on probation occurred after

March 25, 2002.

     (iii) The record shall be used by the department of corrections,

law enforcement agency, court, or prosecuting attorney only to

determine whether an employee has violated his or her conditions of

employment or whether an applicant meets criteria for employment.

     (2) All court proceedings under this section shall be open to

the public. Except as provided in subsection (3), if the record of

proceedings as to the defendant is deferred under this section, the

record of proceedings during the period of deferral shall be closed

to public inspection.

     (3) Unless the court enters a judgment of guilt under this

section, the department of state police shall retain a nonpublic

record of the arrest, court proceedings, and disposition of the

criminal charge under this section. However, the nonpublic record

shall be open to the following individuals and entities for the

purposes noted:

     (a) The courts of this state, law enforcement personnel, and

prosecuting attorneys for use only in the performance of their

duties.

     (b) The courts of this state, law enforcement personnel, and

prosecuting attorneys for the purpose of showing either of the

following:

     (i) That a defendant has already once availed himself or

herself of this section.

     (ii) Determining whether the defendant in a criminal action is

eligible for discharge and dismissal of proceedings by a drug

treatment court under section 1076(5) of the revised judicature act

of 1961, 1961 PA 236, MCL 600.1076.

     (c) The department of corrections for ascertaining

preemployment criminal history or to determine whether a department

of corrections employee has violated conditions of employment.

     (d) The department of human services for enforcing child

protection laws and vulnerable adult protection laws or

Senate Bill No. 632 (H-1) as amended December 11, 2012

ascertaining the preemployment criminal history of any individual

who will be engaged in the enforcement of child protection laws or

vulnerable adult protection laws.

[

(4)] (3) For purposes of this section, a person subjected to a

civil fine for a first violation of section 7341(4) shall not be

considered to have previously been convicted of an offense under

this article.

[(5)] (4) Except as provided in subsection (5) [(6)], if an

individual is convicted of a violation of this article, other than

a violation of section 7401(2)(a)(i) to (iv) or section 7403(2)(a)(i)

Senate Bill No. 632 (H-1) as amended December 11, 2012

to (iv), the court as part of the sentence, during the period of

confinement or the period of probation, or both, may require the

individual to attend a course of instruction or rehabilitation

program approved by the department on the medical, psychological,

and social effects of the misuse of drugs. The court may order the

individual to pay a fee, as approved by the director, for the

instruction or program. Failure to complete the instruction or

program shall be considered a violation of the terms of probation.

[(6)] (5) If an individual is convicted of a second violation of

section 7341(4), before imposing sentence under subsection (1), the

court shall order the person to undergo screening and assessment by

a person or agency designated by the office of substance abuse

services, to determine whether the person is likely to benefit from

rehabilitative services, including alcohol or drug education and

alcohol or drug treatment programs. As part of the sentence imposed

under subsection (1), the court may order the person to participate

in and successfully complete 1 or more appropriate rehabilitative

programs. The person shall pay for the costs of the screening,

assessment, and rehabilitative services. Failure to complete a

program shall be considered a violation of the terms of the

probation.

     Enacting section 1. This amendatory act takes effect April 1,

2013.