BillCam

HOUSE BILL No. 4790

June 20, 2017, Introduced by Reps. Love, Chang, LaGrand and Neeley and referred to the Committee on Law and Justice.

A bill to amend 1965 PA 213, entitled

"An act to provide for setting aside the conviction in certain

criminal cases; to provide for the effect of such action; to

provide for the retention of certain nonpublic records and their

use; to prescribe the powers and duties of certain public agencies

and officers; and to prescribe penalties,"

by amending section 1 (MCL 780.621), as amended by 2016 PA 336.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. (1) Except as provided in this section, a person who

is convicted of not more than 1 offense may file an application

with the convicting court for the entry of an order setting aside 1

or more convictions as follows:

(a) A person who is convicted of not more than 1 felony

offense and not more than 2 misdemeanor offenses may petition the

convicting court to set aside the felony offense.

(b) Except as provided in subdivision (c), a person who is

convicted of not more than 2 misdemeanor offenses and no other

felony or misdemeanor offenses may petition the convicting court or

the convicting courts to set aside 1 or both of the misdemeanor

convictions.

violation of section 520e of the Michigan penal code, 1931 PA 328,

MCL 750.520e, before January 12, 2015 may petition the convicting

court to set aside the conviction if the individual has not been

convicted of another offense other than not more than 2 minor

offenses. As used in this subdivision, "minor offense" means a

misdemeanor or ordinance violation to which all of the following

apply:

(i) The maximum permissible term of imprisonment does not

exceed 90 days.

(ii) The maximum permissible fine is not more than $1,000.00.

(iii) The person who committed the offense is not more than 21

years old.

(2) A conviction that was deferred and dismissed under any of

the following, whether a misdemeanor or a felony, shall be

considered a misdemeanor conviction under subsection (1) for

purposes of determining whether a person is eligible to have any

conviction set aside under this act:

(a) Section 703 of the Michigan liquor control code of 1998,

1998 PA 58, MCL 436.1703.

(b) Section 1070(1)(b)(i) or 1209 of the revised judicature

act of 1961, 1961 PA 236, MCL 600.1070 and 600.1209.

the code of criminal procedure, 1927 PA 175, MCL 762.13 and 769.4a.

(d) Section 7411 of the public health code, 1978 PA 368, MCL

333.7411.

(e) Section 350a or 430 of the Michigan penal code, 1931 PA

328, MCL 750.350a and 750.430.

(f) Any other law or laws of this state or of a political

subdivision of this state similar in nature and applicability to

those listed in this subsection that provide for the deferral and

dismissal of a felony or misdemeanor charge.

(3) A Except as provided in subsection (5), a person shall not

apply to have set aside, and a judge shall not set aside, a

conviction for any of the following:

(a) A felony for which the maximum punishment is life

imprisonment or an attempt to commit a felony for which the maximum

punishment is life imprisonment.

(b) A violation or attempted violation of section 136b(3),

136d(1)(b) or (c), 145c, 145d, 520c, 520d, or 520g of the Michigan

penal code, 1931 PA 328, MCL 750.136b, 750.136d, 750.145c,

750.145d, 750.520c, 750.520d, and 750.520g.

Michigan penal code, 1931 PA 328, MCL 750.520e, if the conviction

occurred on or after January 12, 2015.

(d) A traffic offense, including, but not limited to, a

conviction for operating while intoxicated.

(e) A felony conviction for domestic violence, if the person

has a previous misdemeanor conviction for domestic violence.

(f) A violation of former section 462i or 462j or chapter

LXVIIA or chapter LXXXIII-A of the Michigan penal code, 1938 PA

321, MCL 750.462a to 750.462h and 750.543a to 750.543z.human

trafficking violation.

(4) A person who is convicted of a 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, may apply to

have that conviction set aside if he or she committed the offense

as a direct result of his or her being a victim of a human

trafficking violation.

(5) A person who is convicted of not more than 2 nonviolent

felony offenses may file an application with the convicting court

for the entry of an order setting aside both of the convictions. A

person who is otherwise eligible to file an application under this

section is not rendered ineligible by virtue of being convicted of

not more than 2 misdemeanor offenses in addition to the offenses

for which the person files an application.

(6) (5) An application under subsection (1) shall must only be

filed 5 or more years after whichever of the following events

occurs last:

(a) Imposition of the sentence for the conviction that the

applicant seeks to set aside.

(b) Completion of probation imposed for the conviction that

the applicant seeks to set aside.

applicant seeks to set aside.

(d) Completion of any term of imprisonment imposed for the

conviction that the applicant seeks to set aside.

(7) An application under subsection (4) may be filed at any

time after the date of the conviction to be set aside. A person may

apply to have more than 1 conviction set aside under subsection

(4).

(8) An application to set aside a conviction for a second

nonviolent felony offense under subsection (5), or for both

nonviolent felony offenses if the earlier nonviolent felony

conviction has not been set aside, must only be filed 15 or more

years after the imposition of sentence for the later of the

convictions that the applicant seeks to set aside or 15 or more

years after the completion of a term of imprisonment for that later

conviction, whichever occurs later.

(9) (6) If a petition under this act is denied by the

convicting court, a person shall not file another petition

concerning the same conviction or convictions with the convicting

court until 3 years after the date the convicting court denies the

previous petition, unless the court specifies an earlier date for

filing another petition in the order denying the petition.

(7) An application under subsection (4) may be filed at any

time following the date of the conviction to be set aside. A person

may apply to have more than 1 conviction set aside under subsection

(4).

(10) (8) An application under this section is invalid unless

it contains the following information and is signed under oath by

the person whose conviction is or convictions are to be set aside:

(a) The full name and current address of the applicant.

(b) A certified record of each conviction that is to be set

aside.

statement that the applicant has not been convicted of an offense

or offenses other than the conviction or convictions sought to be

set aside as a result of this application and any nondisqualifying

misdemeanor convictions described in subsection (1)(a) or (5).

(d) A statement listing all actions enumerated in subsection

(2) that were initiated against the applicant and have been

dismissed.

(e) A statement as to whether the applicant has previously

filed an application to set aside this or other conviction 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) If the person is seeking to have 1 or more convictions set

aside under subsection (4), a statement that he or she meets the

criteria set forth in subsection (4), together with a statement of

the facts supporting his or her contention that the conviction was

a direct result of his or her being a victim of human trafficking.

(h) A consent to the use of the nonpublic record created under

section 3 to the extent authorized by section 3.

(11) (9) The applicant shall submit a copy of the application

and 1 complete set 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 section 3, and shall forward an

electronic copy of 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 conviction of the applicant,

and the setting aside of any 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.

(12) (10) The copy of the application submitted to the

department of state police under subsection (9) shall (11) must be

accompanied by a fee of $50.00 payable to the state of Michigan

that shall be used by the department of state police to defray the

expenses incurred in processing the application.

(13) (11) A copy of the application shall must be served upon

the attorney general and upon the office of each prosecuting

attorney who prosecuted the crime or crimes the applicant seeks to

set aside, and an opportunity shall be given to the attorney

general and to the prosecuting attorney to contest the application.

If a conviction was for an assaultive crime or a serious

misdemeanor, the prosecuting attorney shall notify the victim of

the assaultive crime or serious misdemeanor of the application

under section 22a or 77a of the William Van Regenmorter crime

victim's rights act, 1985 PA 87, MCL 780.772a and 780.827a. The

notice shall must 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 act concerning that conviction and to make a written or

oral statement.

(14) (12) For an application under subsection (1), upon Upon

the hearing of the an application under this act, the court may

require the filing of affidavits and the taking of proofs as it

considers proper.

(15) (13) For an application under subsection (4), if the

applicant proves to the court by a preponderance of the evidence

that the conviction was or convictions were a direct result of his

or her being a victim of human trafficking, the court may, subject

to the requirements of subsection (14), (16), enter an order

setting aside the conviction or convictions.

(16) (14) If the court determines that the circumstances and

behavior of an applicant under subsection (1) or (4), this act,

from the date of the applicant's conviction or convictions to the

filing of the application warrant setting aside the conviction or

convictions, and that setting aside the conviction or convictions

is consistent with the public welfare, the court may enter an order

setting aside the conviction or convictions.

(17) (15) The setting aside of a conviction or convictions

under this act is a privilege and conditional and is not a right.

(18) (16) As used in this section:

(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) "Domestic violence" means that term as defined in section

1 of 1978 PA 389, MCL 400.1501.

(i) For purposes of the offense to be set aside, felony means

a violation of a penal law of this state that is punishable by

imprisonment for more than 1 year or that is designated by law to

be a felony.

(ii) For purposes of identifying a prior offense, felony means

a violation of a penal law of this state, of another state, or of

the United States that is punishable by imprisonment for more than

1 year or is designated by law to be a felony.

(d) "Human trafficking violation" means a violation of chapter

LXVIIA of the Michigan penal code, 1931 PA 328, MCL 750.462a to

750.462h, or former section 462i or 462j of that act.

(e) "Indian tribe" means an Indian tribe, Indian band, or

Alaskan native village that is recognized by federal law or

formally acknowledged by a state.

(f) "Misdemeanor" means a violation of any of the following:

(i) A penal law of this state, another state, an Indian tribe,

or the United States that is not a felony.

(ii) An order, rule, or regulation of a state agency that is

punishable by imprisonment for not more than 1 year or a fine that

is not a civil fine, or both.

(iii) A local ordinance of a political subdivision of this

state substantially corresponding to a crime listed in subparagraph

(i) or (ii) that is not a felony.

(iv) A violation of the law of another state or political

subdivision of another state substantially corresponding to a crime

listed under subparagraph (i) or (ii) that is not a felony.

(v) A violation of the law of the United States substantially

corresponding to a crime listed under subparagraph (i) or (ii) that

is not a felony.

(g) "Nonviolent felony offense" means a felony that is not an

assaultive crime.

(h) (g) "Operating while intoxicated" means a violation of any

of the following:

(i) Section 625 or 625m of the Michigan vehicle code, 1949 PA

300, MCL 257.625 and 257.625m.

(ii) A local ordinance substantially corresponding to a

violation listed in subparagraph (i).

(iii) A law of an Indian tribe substantially corresponding to

a violation listed in subparagraph (i).

(iv) A law of another state substantially corresponding to a

violation listed in subparagraph (i).

(v) A law of the United States substantially corresponding to

a violation listed in subparagraph (i).

(i) (h) "Serious misdemeanor" means that term as defined in

section 61 of the William Van Regenmorter crime victim's rights

act, 1985 PA 87, MCL 780.811.

(j) (i) "Victim" means that term as defined in sections 2, 31,

and 61 of the William Van Regenmorter crime victim's rights act,

1985 PA 87, MCL 780.752, 780.781, and 780.811.

Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.