HB-4968, As Passed House, October 17, 2013
September 12, 2013, Introduced by Reps. Heise, Cotter, O'Brien and Nesbitt and referred to the Committee on Judiciary.
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.
(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.