Bill Text: MI SB0471 | 2017-2018 | 99th Legislature | Engrossed

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Bill Title: Juveniles; criminal procedure; Juveniles; criminal procedure; setting aside juvenile adjudication for completion of the Michigan Youth ChalleNGe Academy; provide for. Amends sec. 18e, ch. XIIA of 1939 PA 288 (MCL 712A.18e).

Spectrum: Partisan Bill (Republican 1-0)

Status: (Engrossed - Dead) 2017-09-27 - Referred To Committee On Judiciary [SB0471 Detail]

Download: Michigan-2017-SB0471-Engrossed.html

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SB-0471, As Passed Senate, September 27, 2017

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SENATE BILL No. 471

 

 

June 21, 2017, Introduced by Senators PROOS, CONYERS, MARLEAU, GREGORY, JONES, NOFS, KOWALL, KNEZEK, HOOD, HANSEN, ROBERTSON, SCHMIDT, BOOHER and ZORN and referred to the Committee on Judiciary.

 

 

     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), to the extent authorized by subsection (13).

 

     (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 records of the department, including the nonpublic record

 

created under subsection (13), 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

 

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 of the

 

William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL

 

780.781.

 

     (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 this subsection and subsection (10),

 

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. If the applicant

 

submits to the court a certificate of completion from the Michigan

 

youth challeNGe academy showing that the applicant has completed

 

that program, the court shall determine that the applicant's

 

circumstances and behavior warrant setting aside the adjudication

 

as provided in this subsection. Except as provided in subsection

 

(10), 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) 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) 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.

 

     (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.

 

     (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), 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.

 

     (14) A copy of the nonpublic record created under subsection

 

(13) 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.

 

     (15) The nonpublic record maintained under subsection (13) is

 

exempt from disclosure under the freedom of information act, 1976

 

PA 442, MCL 15.231 to 15.246.

 

     (16) Except as provided in subsection (13), 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.