SB-0631, As Passed House, December 12, 2012

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 631

     A bill to amend 1931 PA 328, entitled

"The Michigan penal code,"

by amending section 350a (MCL 750.350a), as amended by 2004 PA 223.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 350a. (1) An adoptive or natural parent of a child shall

not take that child, or retain that child for more than 24 hours,

with the intent to detain or conceal the child from any other

parent or legal guardian of the child who has custody or parenting

time rights pursuant to under a lawful court order at the time of

the taking or retention, or from the person or persons who have

adopted the child, or from any other person having lawful charge of

the child at the time of the taking or retention.

     (2) A parent who violates subsection (1) is guilty of a

felony, punishable by imprisonment for not more than 1 year and 1

day, or a fine of not more than $2,000.00, or both.

     (3) A parent who violates this section, upon conviction, in

addition to any other punishment, may be ordered to make

restitution to the other parent, legal guardian, the person or

persons who have adopted the child, or any other person having

lawful charge of the child for any financial expense incurred as a

result of attempting to locate and having the child returned.

     (4) When a parent who has not been convicted previously of a

violation of section 349, 350, or this section, or under any

statute of the United States or of any state related to kidnapping,

pleads guilty to, or is found guilty of, a violation of this

section, the court, without entering a judgment of guilt and with

the consent of the accused parent, may defer further proceedings

and place the accused parent on probation with lawful terms and

conditions. 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 a violation of a term or condition of

probation, the court may enter an adjudication of guilt and proceed

as otherwise provided. Upon fulfillment of the terms and conditions

of probation, the court shall discharge from probation and dismiss

the proceedings against the parent. Discharge and dismissal under

this subsection shall be without adjudication of guilt and is not a

conviction for purposes of disqualifications or disabilities

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

penalties imposed for second or subsequent convictions. The

department of state police shall retain a nonpublic record of an

arrest and discharge and dismissal under this section. This record

shall be furnished to either or both of the following:

     (a) To a court or police agency upon request for the purpose

of showing that a defendant in a criminal action has already

availed himself or herself of this subsection.

     (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.There may be only

1 discharge and dismissal under the section as to an individual.

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

the public. Except as provided in subsection (6), 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.

     (6) 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

ascertaining the preemployment criminal history of any individual

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

vulnerable adult protection laws.

(7) (5) It is a complete defense under this section if a

parent proves that his or her actions were taken for the purpose of

protecting the child from an immediate and actual threat of

physical or mental harm, abuse, or neglect.

     Enacting section 1. This amendatory act takes April 1, 2013.