SENATE BILL No. 478

May 16, 2001, Introduced by Senators JOHNSON, GARCIA, BULLARD, HAMMERSTROM, HOFFMAN, GOSCHKA, STEIL, BENNETT, SCHUETTE, NORTH, GOUGEON and SHUGARS and referred to the Committee on Judiciary.

A bill to amend 1925 PA 289, entitled

"An act to create a bureau of criminal identification and records

within the department of state police; to require peace officers,

persons in charge of certain institutions, and others to make

reports respecting juvenile offenses, crimes, and criminals to

the state police; to require the fingerprinting of an accused by

certain persons; and to provide penalties for violation of this

act,"

by amending the title and sections 1, 1a, 2, 3, and 3a (MCL

28.241, 28.241a, 28.242, 28.243, and 28.243a), the title and sec-

tions 1 and 2 as amended by 1988 PA 40, section 1a as amended by

1996 PA 259, section 3 as amended by 1999 PA 266, and section 3a

as amended by 1986 PA 231, and by adding section 8.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

1 TITLE

2 An act to create AND MAINTAIN a bureau of criminal

3 FINGERPRINT identification and CRIMINAL HISTORY records DIVISION

4 within the department of state police; to require peace officers,

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1 persons in charge of certain institutions, and others to make

2 reports respecting juvenile offenses, crimes, and criminals to

3 the state police; to require the fingerprinting of an accused by

4 certain persons; and to provide penalties AND REMEDIES for A vio-

5 lation of this act.

6 Sec. 1. The central records division of the department of

7 state police shall be IS responsible for criminal and juvenile

8 identification and records. The division DEPARTMENT shall be

9 supplied with the necessary apparatus and materials for collect-

10 ing, filing, and preserving criminal and juvenile records filed

11 with the division DEPARTMENT.

12 Sec. 1a. As used in this act:

13 (A) "ARREST CARD" MEANS A PAPER FORM OR AN ELECTRONIC FORMAT

14 PRESCRIBED BY THE DEPARTMENT THAT FACILITATES COLLECTING AND COM-

15 PILING CRIMINAL AND JUVENILE ARREST HISTORY RECORD INFORMATION,

16 INCLUDING FINGERPRINT IMAGES.

17 (B) (a) "Commanding officer" means the department of state

18 police employee in charge of the central records division

19 CRIMINAL JUSTICE INFORMATION CENTER OR ITS SUCCESSOR ADMINISTRA-

20 TIVE UNIT.

21 (C) (b) "Criminal history record information" means name;

22 date of birth; fingerprints; photographs, if available; personal

23 descriptions , including physical measurements, identifying

24 marks, scars, amputations, and tattoos; aliases and prior names;

25 social security and NUMBER, driver's license numbers NUMBER

26 and other identifying numbers; and information on misdemeanor

27 ARRESTS AND convictions and felony arrests and convictions.

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1 (D) (c) "Division "DEPARTMENT" means the central records

2 division of the department of state police.

3 (E) (d) "Felony" means a violation of a penal law of this

4 state for which the offender may be punished by imprisonment for

5 more than 1 year or an offense expressly designated by law to be

6 a felony.

7 (F) "FINGERPRINT IMPRESSIONS" MEANS FINGERPRINT IMAGES

8 RECORDED IN A MANNER PRESCRIBED BY THE DEPARTMENT.

9 (G) (e) "Juvenile history record information" means name;

10 date of birth; fingerprints; photographs, if available; personal

11 descriptions , including physical measurements identifying

12 marks, scars, amputations, and tattoos; aliases and prior names;

13 social security and NUMBER, driver's license numbers NUMBER

14 and other identifying numbers; and information on juvenile

15 offense arrests and adjudications OR CONVICTIONS.

16 (H) (f) "Juvenile offense" means an offense committed by a

17 juvenile that, if committed by an adult, would be a violation or

18 an attempted violation of section 72, 83, 84, 86, 88, 89, 91,

19 110, 110a(2), 186a, 316, 317, 349, 360, 413, 520b, 520c, 520d,

20 520g, 529, 529a, 530, or 531 of the Michigan penal code, Act

21 No. 328 of the Public Acts of 1931, being sections 750.72,

22 750.83, 750.84, 750.86, 750.88, 750.89, 750.91, 750.110,

23 750.110a, 750.186a, 750.316, 750.317, 750.349, 750.360, 750.413,

24 750.520b, 750.520c, 750.520d, 750.520g, 750.529, 750.529a,

25 750.530, and 750.531 of the Michigan Compiled Laws, or

26 section 7401(2)(a)(i) or 7403(2)(a)(i) of the public health code,

27 Act No. 368 of the Public Acts of 1978, being sections 333.7401

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1 and 333.7403 of the Michigan Compiled Laws FELONY OR A

2 MISDEMEANOR.

3 (I) "LAW ENFORCEMENT AGENCY" MEANS THE POLICE DEPARTMENT OF

4 A CITY, TOWNSHIP, OR VILLAGE, THE SHERIFF'S DEPARTMENT OF A

5 COUNTY, THE DEPARTMENT, OR ANY OTHER GOVERNMENTAL LAW ENFORCEMENT

6 AGENCY OF THIS STATE.

7 (J) (g) "Misdemeanor" means either of the following:

8 (i) A violation of a penal law of this state that is not a

9 felony or a violation of an order, rule, or regulation of a state

10 agency that is punishable by imprisonment or a fine that is not a

11 civil fine.

12 (ii) A violation of a local ordinance that substantially

13 corresponds to state law AND THAT IS NOT A CIVIL INFRACTION.

14 Sec. 2. (1) The commanding officer of the division shall

15 procure and file for purposes of criminal identification criminal

16 history record information on all persons who have been convicted

17 within the THIS state of EITHER a felony or a misdemeanor. ,

18 or both. The commanding officer of the division shall procure

19 and file for purposes of juvenile identification juvenile history

20 record information on all juveniles who have been adjudicated to

21 have committed a juvenile offense within the THIS state.

22 (2) The commanding officer shall provide all reporting offi-

23 cials with forms OR PRESCRIBE THE FORMAT, numerical identifiers,

24 and instructions which specify in detail the nature of the

25 information required, the time it is to be forwarded, the method

26 of classifying, and other matters to facilitate criminal and

27 juvenile history record information collection and compilation.

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1 (3) The commanding officer shall file the fingerprint

2 impressions and photographs, if available, of all persons con-

3 fined in a prison or other state correctional facility.

4 (4) THE COMMANDING OFFICER SHALL PROVIDE ACCESS TO CRIMINAL

5 HISTORY RECORD INFORMATION AND JUVENILE HISTORY RECORD INFORMA-

6 TION, AS PRESCRIBED BY THE DEPARTMENT AND AS AUTHORIZED BY LAW.

7 (5) A COPY OF AN ARREST CARD SHALL BE FORWARDED TO THE FED-

8 ERAL BUREAU OF INVESTIGATION.

9 Sec. 3. (1) Except as provided in subsection (2) (3),

10 immediately upon the arrest of a person for a felony or for a

11 misdemeanor violation of state law for which the maximum possible

12 penalty exceeds 92 days' imprisonment or a fine of $1,000.00, or

13 both, or for a juvenile offense, OTHER THAN A JUVENILE OFFENSE

14 FOR WHICH THE MAXIMUM POSSIBLE PENALTY DOES NOT EXCEED 92 DAYS'

15 IMPRISONMENT OR A FINE OF $1,000.00, OR BOTH, the arresting law

16 enforcement agency in this state shall take the person's finger-

17 prints in duplicate and forward the fingerprints to the depart-

18 ment within 72 hours after the arrest. One set of THE finger-

19 prints shall be sent to the division DEPARTMENT on forms fur-

20 nished by OR IN A MANNER PRESCRIBED BY the commanding officer

21 DEPARTMENT, and 1 set of fingerprints THE DEPARTMENT shall be

22 furnished FORWARD THE FINGERPRINTS to the director of the fed-

23 eral bureau of investigation on forms furnished by OR IN A MANNER

24 PRESCRIBED BY the director. A person's fingerprints are not

25 required to be taken and forwarded to the department under this

26 subsection solely because he or she has been arrested for a

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1 violation of section 904(3)(a) of the Michigan vehicle code, 1949

2 PA 300, MCL 257.904.

3 (2) A law enforcement agency shall take a person's finger-

4 prints under this subsection if the person is arrested for a mis-

5 demeanor violation of state law for which the maximum penalty is

6 93 days if the fingerprints have not previously been taken and

7 forwarded to the department under subsection (1). A law enforce-

8 ment agency shall take a person's fingerprints under this

9 subsection if the person is arrested for a violation of a local

10 ordinance for which the maximum possible penalty is 93 days'

11 imprisonment and that substantially corresponds to a violation of

12 state law that is a misdemeanor for which the maximum possible

13 term of imprisonment is 93 days. If the person is convicted of

14 any violation, the law enforcement agency shall take the person's

15 fingerprints before sentencing if not previously taken. The

16 court shall forward to the law enforcement agency a copy of the

17 disposition of conviction, and the law enforcement agency shall

18 forward the person's fingerprints and the copy of the disposition

19 of conviction to the department within 72 hours after receiving

20 the disposition of conviction in the same manner as provided in

21 subsection (1). If the person is convicted of violating a local

22 ordinance, the law enforcement agency shall indicate on the form

23 sent to the division DEPARTMENT the statutory citation for the

24 state law to which the local ordinance substantially

25 corresponds.

26 (3) A person's fingerprints are not required to be taken and

27 forwarded to the department under this subsection solely because

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1 he or she has been convicted of violating section 904(3)(a) of

2 the Michigan vehicle code, 1949 PA 300, MCL 257.904, or a local

3 ordinance substantially corresponding to section 904(3)(a) of the

4 Michigan vehicle code, 1949 PA 300, MCL 257.904.

5 (4) (3) The arresting law enforcement agency may take 1

6 set of fingerprints of a person who is arrested for a misdemeanor

7 punishable by imprisonment for not more than 92 days or a fine of

8 not more than $1,000.00, or both, and who fails to produce satis-

9 factory evidence of identification as required by section 1 of

10 1961 PA 44, MCL 780.581. These fingerprints shall be forwarded

11 to the department immediately. Upon completion of the identifi-

12 cation process by the department, the fingerprints shall be

13 returned to the arresting law enforcement agency DESTROYED.

14 (5) (4) An arresting law enforcement agency in the THIS

15 state may take the person's fingerprints on forms furnished by

16 the commanding officer upon an arrest for a misdemeanor other

17 than a misdemeanor described in subsection (1), (2), or (3)

18 (4), but AND may not forward the fingerprints to the

19 department. unless the person is convicted of a misdemeanor.

20 (6) IF A COURT ORDERS THE TAKING OF FINGERPRINTS OF A PERSON

21 PURSUANT TO SECTION 11 OR 18 OF CHAPTER XIIA OF THE PROBATE CODE

22 OF 1939, 1939 PA 288, MCL 712A.11 AND 712A.18, OR SECTION 29 OF

23 CHAPTER IV OR SECTION 1 OF CHAPTER IX OF THE CODE OF CRIMINAL

24 PROCEDURE, 1927 PA 175, MCL 764.29 AND 769.1, THE LAW ENFORCEMENT

25 AGENCY SHALL FORWARD THE FINGERPRINTS AND ARREST CARD TO THE

26 DEPARTMENT.

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1 (7) (5) If a petition is not authorized for a juvenile

2 accused of a juvenile offense or if a person arrested for having

3 committed a felony or a misdemeanor is released without a charge

4 made against him or her, the official taking or holding the

5 person's fingerprints , AND arrest card , and description

6 shall immediately return this information to the person without

7 the necessity of a request. If this information is not returned,

8 the person has the absolute right to demand and receive its

9 return at any time after the person's release and without need to

10 petition for court action DESTROY THE FINGERPRINTS AND ARREST

11 CARD. The law enforcement agency shall notify the commanding

12 officer DEPARTMENT in writing that no A petition was NOT

13 authorized against the juvenile or that no A charge was NOT

14 made against the arrested person if the juvenile's or arrested

15 person's fingerprints were forwarded to the department.

16 (8) (6) If a juvenile is adjudicated and found not to be

17 within the provisions of section 2(a)(1) of chapter XIIA of the

18 probate code of 1939, 1939 PA 288, MCL 712A.2, or if an accused

19 is found not guilty of the offense, the arrest card, the fin-

20 gerprints , and description THE ARREST CARD shall be

21 returned to him or her DESTROYED by the official holding this

22 information. If for any reason the official holding the informa-

23 tion does not return DESTROY the information within 60 days of

24 the adjudication or the finding of not guilty, the accused or

25 juvenile has the right to obtain an order from the court having

26 jurisdiction over the case for the return of the information. If

27 the order of return is not complied with, the accused or juvenile

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1 has the right to petition the family division of circuit court of

2 the county where the original petition was filed or the circuit

3 court of the county where the original charge was made for a pre-

4 emptory writ of mandamus to require issuance of the order of

5 return. Upon final disposition of the charge against the

6 accused, the clerk of the court entering the disposition shall

7 notify the commanding officer DEPARTMENT of any finding of not

8 guilty or not guilty by reason of insanity, dismissal, or nolle

9 prosequi, if it appears that the accused was initially arrested

10 FINGERPRINTED for a felony or a misdemeanor punishable by

11 imprisonment for more than 92 days or of any finding that a

12 juvenile alleged responsible for a juvenile offense is not within

13 the provisions of section 2(a)(1) of chapter XIIA of the probate

14 code of 1939, 1939 PA 288, MCL 712A.2.

15 (9) (7) Upon final disposition of the charge against the

16 accused, the clerk of the court entering the disposition shall

17 immediately advise the commanding officer DEPARTMENT of the

18 final disposition of the arrest for which the person was finger-

19 printed if a juvenile was adjudicated to have committed a juve-

20 nile offense or if the accused was convicted of a felony or a

21 misdemeanor. With regard to any adjudication or conviction, the

22 clerk shall transmit to the commanding officer DEPARTMENT

23 information as to any adjudication or finding of guilty or guilty

24 but mentally ill; any plea of guilty, nolo contendere, or guilty

25 but mentally ill; the offense of which the accused was convicted;

26 and a summary of any deposition or sentence imposed. The summary

27 of the sentence shall include any probationary term; any minimum,

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1 maximum, or alternative term of imprisonment; the total of all

2 fines, costs, and restitution ordered; and any modification of

3 sentence. If the sentence is imposed under any of the following

4 sections, the report shall so indicate:

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

6 333.7411.

7 (b) Sections 11 to 15 of chapter II of the code of criminal

8 procedure, 1927 PA 175, MCL 762.11 to 762.15.

9 (c) Section 4a of chapter IX of the code of criminal proce-

10 dure, 1927 PA 175, MCL 769.4a.

11 (d) Section 350a(4) of the Michigan penal code, 1931 PA 328,

12 MCL 750.350a.

13 (10) (8) The commanding officer DEPARTMENT shall record

14 the disposition of each charge and shall inform the director of

15 the federal bureau of investigation of the final disposition of

16 the felony or misdemeanor arrest.

17 (11) (9) The commanding officer DEPARTMENT shall compare

18 the fingerprints and description received with those already on

19 file and if the commanding officer DEPARTMENT finds that the

20 person arrested has a criminal record, the commanding officer

21 DEPARTMENT shall immediately inform the arresting agency and

22 prosecuting attorney of this fact.

23 (10) The provisions of this section requiring the return of

24 the fingerprints, arrest card, and description do not apply in

25 the following cases:

26 (a) The person arrested was charged with the commission or

27 attempted commission, or if the person arrested is a juvenile

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1 alleged to have committed an offense that if committed by an

2 adult would constitute the commission or attempted commission, of

3 a crime with or against a child under 16 years of age or the

4 crime of criminal sexual conduct in any degree, rape, sodomy,

5 gross indecency, indecent liberties, or child sexually abusive

6 activities or materials.

7 (b) The person arrested has a prior conviction other than a

8 misdemeanor traffic offense, unless a judge of a court of record,

9 except the probate court, by express order entered on the record,

10 orders the return.

11 (12) THE PROVISIONS OF SUBSECTION (8) THAT REQUIRE THE

12 DESTRUCTION OF THE FINGERPRINTS AND THE ARREST CARD DO NOT APPLY

13 TO A PERSON WHO WAS ARRAIGNED IN CIRCUIT COURT OR THE FAMILY

14 DIVISION OF CIRCUIT COURT FOR ANY OF THE FOLLOWING:

15 (A) THE COMMISSION OR ATTEMPTED COMMISSION OF A CRIME WITH

16 OR AGAINST A CHILD UNDER 16 YEARS OF AGE.

17 (B) RAPE.

18 (C) CRIMINAL SEXUAL CONDUCT IN ANY DEGREE.

19 (D) SODOMY.

20 (E) GROSS INDECENCY.

21 (F) INDECENT LIBERTIES.

22 (G) CHILD ABUSIVE COMMERCIAL ACTIVITIES.

23 (H) A PERSON WHO HAS A PRIOR CONVICTION, OTHER THAN A MISDE-

24 MEANOR TRAFFIC OFFENSE, UNLESS A JUDGE OF A COURT OF RECORD,

25 EXCEPT THE PROBATE COURT, BY EXPRESS ORDER ON THE RECORD, ORDERS

26 THE DESTRUCTION OR RETURN OF THE FINGERPRINTS AND ARREST CARD.

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1 (I) A PERSON ARRESTED WHO IS A JUVENILE CHARGED WITH AN

2 OFFENSE THAT WOULD CONSTITUTE THE COMMISSION OR ATTEMPTED

3 COMMISSION OF ANY OF THE CRIMES IN THIS SUBSECTION IF COMMITTED

4 BY AN ADULT.

5 (13) (11) Subsection (4) (5) does not permit the for-

6 warding to the department of the fingerprints of a person accused

7 and convicted under the Michigan vehicle code, 1949 PA 300, MCL

8 257.1 to 257.923, or a local ordinance substantially correspond-

9 ing to a provision of that act, unless the offense is punishable

10 upon conviction by imprisonment for more than 92 days or is an

11 offense that is punishable by imprisonment for more than 92 days

12 upon a subsequent conviction.

13 (12) As used in this section:

14 (a) "Department" means the department of state police.

15 (b) "Law enforcement agency" means the police department of

16 a city, township, or village, the sheriff's department of a

17 county, the department, or any other governmental law enforcement

18 agency of this state.

19 Sec. 3a. (1) Any person required to have his or her fin-

20 gerprints taken under section 3 who refuses to allow or resists

21 the taking of his or her fingerprints is guilty of a

22 misdemeanor. Such person must be advised that his or her refusal

23 constitutes a misdemeanor. A PERSON SHALL NOT REFUSE TO ALLOW OR

24 RESIST THE TAKING OF HIS OR HER FINGERPRINTS IF AUTHORIZED OR

25 REQUIRED UNDER THIS ACT.

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1 (2) A PERSON WHO VIOLATES SUBSECTION (1) IS GUILTY OF A

2 MISDEMEANOR PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 92 DAYS

3 OR BY A FINE OF NOT MORE THAN $500.00, OR BOTH.

4 SEC. 8. FINGERPRINT IMPRESSIONS OBTAINED UNDER A LAW OR

5 RULE FOR NONCRIMINAL IDENTIFICATION PURPOSES MAY BE USED FOR

6 CRIMINAL IDENTIFICATION PURPOSES UNLESS PROHIBITED BY LAW OR

7 RULE.

8 Enacting section 1. This amendatory act does not take

9 effect unless Senate Bill No. 479

10 of the 91st Legislature is enacted

11 into law.

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