SENATE BILL No. 735

October 17, 2001, Introduced by Senators BULLARD, JOHNSON, GARCIA, MC COTTER, HAMMERSTROM and GOSCHKA and referred to the Committee on Judiciary.

A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

by amending section 15b of chapter IV and section 9a of chapter X

(MCL 764.15b and 770.9a), section 15b of chapter IV as amended by

1999 PA 269 and section 9a of chapter X as amended by 1994 PA

195.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

1 CHAPTER IV

2 Sec. 15b. (1) A peace officer, without a warrant, may

3 arrest and take into custody an individual when the peace officer

4 has or receives positive information that another peace officer

5 has reasonable cause to believe all of the following apply:

6 (a) A personal protection order has been issued under

7 section 2950 or 2950a of the revised judicature act of 1961, 1961

8 PA 236, MCL 600.2950 and 600.2950a.

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1 (b) The individual named in the personal protection order is

2 violating or has violated the order. An individual is violating

3 or has violated the order if that individual commits 1 or more of

4 the following acts the order specifically restrains or enjoins

5 the individual from committing:

6 (i) Assaulting, attacking, beating, molesting, or wounding a

7 named individual.

8 (ii) Removing minor children from an individual having legal

9 custody of the children, except as otherwise authorized by a cus-

10 tody or parenting time order issued by a court of competent

11 jurisdiction.

12 (iii) Entering onto premises.

13 (iv) Engaging in conduct prohibited under section 411h or

14 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and

15 750.411i.

16 (v) Threatening to kill or physically injure a named

17 individual.

18 (vi) Purchasing or possessing a firearm.

19 (vii) Interfering with petitioner's efforts to remove

20 petitioner's children or personal property from premises that are

21 solely owned or leased by the individual to be restrained or

22 enjoined.

23 (viii) Interfering with petitioner at petitioner's place of

24 employment or education or engaging in conduct that impairs

25 petitioner's employment or educational relationship or

26 environment.

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1 (ix) Any other act or conduct specified by the court in the

2 personal protection order.

3 (c) The personal protection order states on its face that a

4 violation of its terms subjects the individual to immediate

5 arrest and either of the following:

6 (i) If the individual restrained or enjoined is 17 years of

7 age or older, to criminal contempt of court and, if found guilty

8 of criminal contempt, to imprisonment for not more than 93 days

9 and to a fine of not more than $500.00.

10 (ii) If the individual restrained or enjoined is less than

11 17 years of age, to the dispositional alternatives listed in sec-

12 tion 18 of chapter XIIA of the probate code of 1939, 1939 PA 288,

13 MCL 712A.18.

14 (2) An individual arrested under this section shall be

15 brought before the family division of the circuit court having

16 jurisdiction in the cause within 24 hours after arrest to answer

17 to a charge of contempt for violating the personal protection

18 order, at which time the court shall do each of the following:

19 (a) Set a time certain for a hearing on the alleged viola-

20 tion of the personal protection order. The hearing shall be held

21 within 72 hours after arrest, unless extended by the court on the

22 motion of the arrested individual or the prosecuting attorney.

23 (b) Set a reasonable bond pending a hearing of the alleged

24 violation of the personal protection order. HOWEVER, IF THE

25 INDIVIDUAL ARRESTED HAS PREVIOUSLY BEEN CONVICTED UNDER SECTION

26 411I OF THE MICHIGAN PENAL CODE, 1931 PA 328, MCL 750.411I, THE

27 COURT SHALL NOT SET BOND UNLESS THE COURT FIRST FINDS, BY CLEAR

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1 AND CONVINCING EVIDENCE, THAT THE INDIVIDUAL ARRESTED POSES NO

2 DANGER TO OTHERS.

3 (c) Notify the prosecuting attorney of the criminal contempt

4 proceeding.

5 (d) Notify the party who procured the personal protection

6 order and his or her attorney of record, if any, and direct the

7 party to appear at the hearing and give evidence on the charge of

8 contempt.

9 (3) In circuits in which the circuit court judge may not be

10 present or available within 24 hours after arrest, an individual

11 arrested under this section shall be taken before the district

12 court within 24 hours after arrest, at which time the district

13 court shall set bond and order the defendant to appear before the

14 family division of circuit court in the county for a hearing on

15 the charge. If the district court will not be open within 24

16 hours after arrest, a judge or district court magistrate shall

17 set bond AS PROVIDED UNDER SUBSECTION (2)(B) and order the

18 defendant to appear before the circuit court in the county for a

19 hearing on the charge.

20 (4) If a criminal contempt proceeding for violation of a

21 personal protection order is not initiated by an arrest under

22 this section but is initiated as a result of a show cause order

23 or other process or proceedings, the court shall do all of the

24 following:

25 (a) Notify the party who procured the personal protection

26 order and his or her attorney of record, if any, and direct the

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1 party to appear at the hearing and give evidence on the contempt

2 charge.

3 (b) Notify the prosecuting attorney of the criminal contempt

4 proceeding.

5 (5) The family division of circuit court in each county of

6 this state has jurisdiction to conduct contempt proceedings based

7 upon a violation of a personal protection order described in this

8 section issued by the circuit court in any county of this state.

9 The court of arraignment shall notify the circuit court that

10 issued the personal protection order that the issuing court may

11 request that the defendant be returned to that court for violat-

12 ing the personal protection order. If the court that issued the

13 personal protection order requests that the defendant be returned

14 to that court to stand trial, the county of the requesting court

15 shall bear the cost of transporting the defendant to that

16 county.

17 (6) The family division of circuit court has jurisdiction to

18 conduct contempt proceedings based upon a violation of a personal

19 protection order issued pursuant to section 2(h) of chapter XIIA

20 of the probate code of 1939, 1939 PA 288, MCL 712A.2, by the

21 family division of circuit court in any county of this state.

22 The family division of circuit court that conducts the prelimi-

23 nary inquiry shall notify the family division of circuit court

24 that issued the personal protection order that the issuing court

25 may request that the respondent be returned to that county for

26 violating the personal protection order. If the family division

27 of circuit court that issued the personal protection order

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1 requests that the respondent be returned to that court to stand

2 trial, the county of the requesting court shall bear the cost of

3 transporting the respondent to that county.

4 (7) The prosecuting attorney shall prosecute a criminal con-

5 tempt proceeding initiated by the court under subsection (2) or

6 initiated by a show cause order under subsection (4), unless the

7 party who procured the personal protection order retains his or

8 her own attorney for the criminal contempt proceeding or the

9 prosecuting attorney determines that the personal protection

10 order was not violated or that it would not be in the interest of

11 justice to prosecute the criminal contempt violation. If the

12 prosecuting attorney prosecutes the criminal contempt proceeding,

13 the court shall grant an adjournment for not less than 14 days or

14 a lesser period requested if the prosecuting attorney moves for

15 adjournment. If the prosecuting attorney prosecutes the criminal

16 contempt proceeding, the court may dismiss the proceeding upon

17 motion of the prosecuting attorney for good cause shown.

18 (8) A court shall not rescind a personal protection order,

19 dismiss a contempt proceeding based on a personal protection

20 order, or impose any other sanction for a failure to comply with

21 a time limit prescribed in this section.

22 CHAPTER X

23 Sec. 9a. (1) A defendant convicted of an assaultive crime

24 and awaiting sentence shall be detained and shall not be admitted

25 to bail unless the trial court finds by clear and convincing evi-

26 dence that the defendant is not likely to pose a danger to other

27 persons.

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1 (2) A defendant convicted of an assaultive crime and

2 sentenced to a term of imprisonment who has filed an appeal or an

3 application for leave to appeal shall be detained and shall not

4 be admitted to bail unless the trial court or the court to which

5 the appeal is taken finds by clear and convincing evidence that

6 both of the following exist:

7 (a) The defendant is not likely to pose a danger to other

8 persons.

9 (b) The appeal or application raises a substantial question

10 of law or fact.

11 (3) As used in this section, "assaultive crime" means an

12 offense against a person described in section 82, 83, 84, 86, 87,

13 88, 89, 316, 317, 321, 349, 349a, 350, 397, 411I, 520b, 520c,

14 520d, 520e, 520g, 529, 529a, or 530 of Act No. 328 of the Public

15 Acts of 1931, as amended, being sections THE MICHIGAN PENAL

16 CODE, 1931 PA 328, MCL 750.82, 750.83, 750.84, 750.86, 750.87,

17 750.88, 750.89, 750.316, 750.317, 750.321, 750.349, 750.349a,

18 750.350, 750.397, 750.411I, 750.520b, 750.520c, 750.520d,

19 750.520e, 750.520g, 750.529, 750.529a, and 750.530. of the

20 Michigan Compiled Laws.

21 (4) The appeal or application for leave to appeal filed by a

22 person denied bail under this section shall be expedited pursuant

23 to rules adopted for that purpose by the supreme court.

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