March 29, 2017, Introduced by Reps. Neeley, Jones, Sneller, Rabhi and Durhal and referred to the Committee on Law and Justice.
A bill to amend 1939 PA 288, entitled
"Probate code of 1939,"
by amending section 18e of chapter XIIA (MCL 712A.18e), as amended
by 2016 PA 337.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER XIIA
Sec. 18e. (1) Except as provided in subsection (2), a person
who has been adjudicated of not more than 1 juvenile offense that
would be a felony if committed by an adult and not more than 3
juvenile offenses, of which not more than 1 may be a juvenile
offense that would be a felony if committed by an adult and who has
no felony convictions may file an application with the adjudicating
court or adjudicating courts for the entry of an order setting
aside the adjudications. A person may have only 1 adjudication for
an offense that would be a felony if committed by an adult and not
more than 2 adjudications for an offense that would be a
misdemeanor if committed by an adult or if there is no adjudication
for a felony if committed by an adult, not more than 3
adjudications for an offense that would be a misdemeanor if
committed by an adult set aside under this section. Multiple
adjudications arising out of a series of acts that were in a
continuous time sequence of 12 hours or less and that displayed a
single intent and goal constitute 1 offense provided that none of
the adjudications constitute any of the following:
(a) An assaultive crime as that term is defined in subsection
(7).
(b) An offense involving the use or possession of a weapon.
(c) An offense with a maximum penalty of 10 or more years
imprisonment.
(2) A person shall not apply under this section to have set
aside, and a judge shall not under this section set aside, any of
the following:
(a) An adjudication for an offense that if committed by an
adult would be a felony for which the maximum punishment is life
imprisonment.
(b) An adjudication for a traffic offense under the Michigan
vehicle code, 1949 PA 300, MCL 257.1 to 257.923, or a local
ordinance substantially corresponding to that act, that involves
the operation of a vehicle and at the time of the violation is a
felony or misdemeanor.
(c) A conviction under section 2d of this chapter. This
subdivision does not prevent a person convicted under section 2d of
this chapter from having that conviction set aside as otherwise
provided by law.
(3) An application under this section shall not be filed until
the expiration of 1 year following imposition of the disposition
for the adjudication that the applicant seeks to set aside, or 1
year following completion of any term of detention for that
adjudication, or when the person becomes 18 years of age, whichever
occurs later.
(4) An application under this section is invalid unless it
contains the following information and is signed under oath by the
person whose adjudication is to be set aside:
(a) The full name and current address of the applicant.
(b) A certified record of the adjudication that is to be set
aside.
(c) A statement that the applicant has not been adjudicated of
a juvenile offense other than the juvenile offenses sought to be
set aside as a result of this application.
(d) A statement that the applicant has not been convicted of
any felony offense.
(e) A statement as to whether the applicant has previously
filed an application to set aside this or any other adjudication
and, if so, the disposition of the application.
(f) A statement as to whether the applicant has any other
criminal charge pending against him or her in any court in the
United States or in any other country.
(g) A consent to the use of the nonpublic record created under
subsection
(13), (14), to the extent authorized by subsection
(13).(14).
(5) The applicant shall submit a copy of the application and 2
complete sets of fingerprints to the department of state police.
The department of state police shall compare those fingerprints
with
the its own records, of the department, including the
nonpublic
record created under subsection (13), (14), and shall
forward a complete set of fingerprints to the Federal Bureau of
Investigation for a comparison with the records available to that
agency. The department of state police shall report to the court in
which the application is filed the information contained in the
department's
department of state police's records with respect to
any pending charges against the applicant, any record of
adjudication or conviction of the applicant, and the setting aside
of any adjudication or conviction of the applicant and shall report
to the court any similar information obtained from the Federal
Bureau of Investigation. The court shall not act upon the
application until the department of state police reports the
information required by this subsection to the court.
(6) The copy of the application submitted to the department of
state police under subsection (5) shall be accompanied by a fee of
$25.00 payable to the state of Michigan. The department of state
police shall use the fee to defray the expenses incurred in
processing the application.
(7) A copy of the application shall be served upon the
attorney general and, if applicable, upon the office of the
prosecuting attorney who prosecuted the offense. The attorney
general and the prosecuting attorney shall have an opportunity to
contest the application. If the adjudication was for an offense
that if committed by an adult would be an assaultive crime or
serious misdemeanor, and if the name of the victim is known to the
prosecuting attorney, the prosecuting attorney shall give the
victim of that offense written notice of the application and
forward a copy of the application to the victim under section 46a
of the William Van Regenmorter crime victim's rights act, 1985 PA
87, MCL 780.796a. The notice shall be sent by first-class mail to
the victim's last known address. The victim has the right to appear
at any proceeding under this section concerning that adjudication
and to make a written or oral statement. As used in this
subsection:
(a) "Assaultive crime" means that term as defined in section
9a of chapter X of the code of criminal procedure, 1927 PA 175, MCL
770.9a.
(b) "Serious misdemeanor" means that term as defined in
section
31 61 of the William Van Regenmorter crime victim's rights
act,
1985 PA 87, MCL 780.781.780.811.
(c)
"Victim" means that term as defined in section 31 61 of
the William Van Regenmorter crime victim's rights act, 1985 PA 87,
MCL
780.781.780.811.
(8) Upon the hearing of the application, the court may require
the filing of affidavits and the taking of proofs as it considers
proper.
(9)
Except as provided in subsection (10), subsections (10)
and (11), if the court determines that the circumstances and
behavior of the applicant from the date of the applicant's
adjudication to the filing of the application warrant setting aside
the 1 adjudication for a juvenile offense that would be a felony if
committed by an adult and not more than 2 adjudications for a
juvenile offense that would be a misdemeanor if committed by an
adult or if there is no adjudication for a felony if committed by
an adult, not more than 3 adjudications for an offense that would
be a misdemeanor if committed by an adult and that setting aside
the adjudication or adjudications is consistent with the public
welfare, the court may enter an order setting aside the
adjudication.
Except as provided in subsection (10), subsections
(10) and (11), the setting aside of an adjudication under this
section is a privilege and conditional, and is not a right.
(10) If the person files an application with the court and he
or she otherwise meets all the requirements, notwithstanding
subsection (9), the court shall set aside the adjudication of a
person as follows:
(a) The person was adjudicated for an offense that if
committed by an adult would be a violation or an attempted
violation of section 413 of the Michigan penal code, 1931 PA 328,
MCL 750.413.
(b) The person was adjudicated for an offense that if
committed by an adult would be a violation or an attempted
violation of section 448, 449, or 450 of the Michigan penal code,
1931 PA 328, MCL 750.448, 750.449, and 750.450, or a local
ordinance substantially corresponding to section 448, 449, or 450
of the Michigan penal code, 1931 PA 328, MCL 750.448, 750.449, and
750.450, and he or she committed the offense as a direct result of
his or her being a victim of a human trafficking violation.
(11) Notwithstanding subsection (9), the court shall, without
holding a hearing, set aside the adjudication of a person who was
adjudicated for any of the following offenses if the person files
an application with the court and otherwise meets the requirements
of this section:
(a) An offense that is not an assaultive crime as that term is
defined in subsection (7).
(b) An offense that did not involve the use or possession of a
weapon.
(c) An offense that does not carry a maximum penalty of 10 or
more years imprisonment.
(12) (11)
Upon the entry of an order under
this section, the
applicant is considered not to have been previously adjudicated,
except
as provided in subsection (13) (14)
and as follows:
(a) The applicant is not entitled to the remission of any
fine, costs, or other money paid as a consequence of an
adjudication that is set aside.
(b) This section does not affect the right of the applicant to
rely upon the adjudication to bar subsequent proceedings for the
same offense.
(c) This section does not affect the right of a victim of an
offense to prosecute or defend a civil action for damages.
(d) This section does not create a right to commence an action
for damages for detention under the disposition that the applicant
served before the adjudication is set aside under this section.
(13) (12)
Upon the entry of an order under
this section, the
court shall send a copy of the order to the arresting agency and
the department of state police.
(14) (13)
The department of state police
shall retain a
nonpublic record of the order setting aside an adjudication for a
juvenile offense that would be a felony if committed by an adult
and not more than 2 juvenile offenses that would be misdemeanors if
committed by an adult or if there is no adjudication for a felony
if committed by an adult, not more than 3 adjudications for an
offense that would be a misdemeanor if committed by an adult and of
the record of the arrest, fingerprints, adjudication, and
disposition of the applicant in the case to which the order
applies.
Except as provided in subsection (14), (15), this
nonpublic record shall be made available only to a court of
competent jurisdiction, an agency of the judicial branch of state
government, a law enforcement agency, a prosecuting attorney, the
attorney general, or the governor upon request and only for the
following purposes:
(a) Consideration in a licensing function conducted by an
agency of the judicial branch of state government.
(b) Consideration by a law enforcement agency if a person
whose adjudication has been set aside applies for employment with
the law enforcement agency.
(c) To show that a person who has filed an application to set
aside an adjudication has previously had an adjudication set aside
under this section.
(d) The court's consideration in determining the sentence to
be imposed upon conviction for a subsequent offense that is
punishable as a felony or by imprisonment for more than 1 year.
(e) Consideration by the governor, if a person whose
adjudication has been set aside applies for a pardon for another
offense.
(15) (14)
A copy of the nonpublic record
created under
subsection
(13) (14) shall be provided to the person whose
adjudication is set aside under this section upon payment of a fee
determined and charged by the department of state police in the
same manner as the fee prescribed in section 4 of the freedom of
information act, 1976 PA 442, MCL 15.234.
(16) (15)
The nonpublic record maintained
under subsection
(13)
(14) is exempt from disclosure under the freedom of
information act, 1976 PA 442, MCL 15.231 to 15.246.
(17) (16)
Except as provided in subsection (13),
(14), a
person, other than the applicant, who knows or should have known
that an adjudication was set aside under this section, who
divulges, uses, or publishes information concerning an adjudication
set aside under this section is guilty of a misdemeanor.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.