JUVENILE CRIME EXPUNGEMENTS
STATE
OF MICHIGAN
96TH
LEGISLATURE
REGULAR
SESSION OF 2012
Introduced
by Reps. Haveman, Bumstead, Hooker, Heise, Kurtz, Genetski, Lipton, MacMaster,
Wayne Schmidt, Opsommer, Foster, Pettalia, Muxlow, Shirkey, Lori and
Jackson
ENROLLED
HOUSE BILL No. 5600
AN
ACT to amend 1939 PA 288, entitled “An act to revise and consolidate the
statutes relating to certain aspects of the family division of circuit court, to
the jurisdiction, powers, and duties of the family division of circuit court and
its judges and other officers, to the change of name of adults and children, and
to the adoption of adults and children; to prescribe certain jurisdiction,
powers, and duties of the family division of circuit court and its judges and
other officers; to prescribe the manner and time within which certain actions
and proceedings may be brought in the family division of the circuit court; to
prescribe pleading, evidence, practice, and procedure in certain actions and
proceedings in the family division of circuit court; to provide for appeals from
certain actions in the family division of circuit court; to prescribe the powers
and duties of certain state departments, agencies, and officers; to provide for
certain immunity from liability; and to provide remedies and penalties,” by
amending section 18e of chapter XIIA (MCL 712A.18e), as amended by 1996 PA
257.
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 61 of the William
Van Regenmorter crime victim’s rights act, 1985 PA 87, MCL 780.781.
(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 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. 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)
Notwithstanding subsection (9), the court shall set aside the adjudication of a
person who 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, if the person files an application with the court and
otherwise meets the requirements of this section.
(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.
This
act is ordered to take immediate effect.
Clerk
of the House of Representatives
Secretary
of the Senate
Approved
Governor
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