HB-4968, As Passed House, December 12, 2013HB-4968, As Passed Senate, December 12, 2013

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4968

     A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

by amending section 4a of chapter IX (MCL 769.4a), as amended by

2012 PA 550.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER IX

     Sec. 4a. (1) When an individual who has not been convicted

previously of an assaultive crime pleads guilty to, or is found

guilty of, a violation of section 81 or 81a of the Michigan penal

code, 1931 PA 328, MCL 750.81 and 750.81a, and the victim of the

assault is the offender's spouse or former spouse, an individual

who has had a child in common with the offender, an individual who

has or has had a dating relationship with the offender, or an

individual residing or having resided in the same household as the

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

the consent of the accused and of the prosecuting attorney in

consultation with the victim, may defer further proceedings and

place the accused on probation as provided in this section.

However, before deferring proceedings under this subsection, the

court shall contact the department of state police and determine

whether, according to the records of the department of state

police, the accused has previously been convicted of an assaultive

crime or has previously availed himself or herself of this section.

If the search of the records reveals an arrest for an assaultive

crime but no disposition, the court shall contact the arresting

agency and the court that had jurisdiction over the violation to

determine the disposition of that arrest for purposes of this

section.

     (2) Upon a violation of a term or condition of probation, the

court may enter an adjudication of guilt and proceed as otherwise

provided in this chapter.

     (3) An order of probation entered under subsection (1) may

include any condition of probation authorized under section 3 of

chapter XI, including, but not limited to, requiring the accused to

participate in a mandatory counseling program. The court may order

the accused to pay the reasonable costs of the mandatory counseling

program. The court also may order the accused to participate in a

drug treatment court under chapter 10A of the revised judicature

act of 1961, 1961 PA 236, MCL 600.1060 to 600.1084. The court may

order the defendant to be imprisoned for not more than 12 months at

the time or intervals, which may be consecutive or nonconsecutive

and within the period of probation, as the court determines.

However, the period of imprisonment shall not exceed the maximum

period of imprisonment authorized for the offense if the maximum

period is less than 12 months. The court may permit day parole as

authorized under 1962 PA 60, MCL 801.251 to 801.258. The court may

permit a work or school release from jail.

     (4) The court shall enter an adjudication of guilt and proceed

as otherwise provided in this chapter if any of the following

circumstances exist:

     (a) The accused commits an assaultive crime during the period

of probation.

     (b) The accused violates an order of the court that he or she

receive counseling regarding his or her violent behavior.

     (c) The accused violates an order of the court that he or she

have no contact with a named individual.

     (5) Upon fulfillment of the terms and conditions, the court

shall discharge the person and dismiss the proceedings against the

person. Discharge and dismissal under this section shall be without

adjudication of guilt and is not a conviction for purposes of this

section or for purposes of disqualifications or disabilities

imposed by law upon conviction of a crime, but it is a prior

conviction in a prosecution under sections 81(3) and (4) and 81a(3)

of the Michigan penal code, 1931 PA 328, MCL 750.81 and 750.81a.

There shall be only 1 discharge and dismissal under this section

with respect to any individual.

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

the public. Except as provided in subsection (7), 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.

     (7) 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, the

department of corrections, and prosecuting attorneys for use only

in the performance of their duties or to determine whether an

employee of the court, law enforcement agency, department of

corrections, or prosecutor's office has violated his or her

conditions of employment or whether an applicant meets criteria for

employment with the court, law enforcement agency, department of

corrections, or prosecutor's office.

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

prosecuting attorneys for either of the following purposes:

     (i) Showing that a defendant in a criminal action under section

81 or 81a of the Michigan penal code, 1931 PA 328, MCL 750.81 and

750.81a, or a local ordinance substantially corresponding to

section 81 of that act 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.

(c) (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.

     (8) As used in this section:

     (a) "Assaultive crime" means 1 or more of the following:

     (i) That term as defined in section 9a of chapter X.

     (ii) A violation of chapter XI of the Michigan penal code, 1931

PA 328, MCL 750.81 to 750.90h.

     (iii) A violation of a law of another state or of a local

ordinance of a political subdivision of this state or of another

state substantially corresponding to a violation described in

subparagraph (i) or (ii).

     (b) "Dating relationship" means frequent, intimate

associations primarily characterized by the expectation of

affectional involvement. This term does not include a casual

relationship or an ordinary fraternization between 2 individuals in

a business or social context.

     Enacting section 1. This amendatory act takes effect January

1, 2014.