March 29, 2012, Introduced by Senators JONES and NOFS and referred to the Committee on Judiciary.
A bill to amend 1925 PA 289, entitled
"An act to create and maintain a fingerprint identification and
criminal history records division 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 and remedies for a violation of this act,"
by amending sections 1a, 2, 2a, 3, 3a, and 8 (MCL 28.241a, 28.242,
28.242a, 28.243, 28.243a, and 28.248), sections 1a and 3a as
amended and section 8 as added by 2001 PA 187, section 2 as amended
by 2001 PA 203, section 2a as added by 2005 PA 310, and section 3
as amended by 2004 PA 222.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1a. As used in this act:
(a) "Arrest card" means a paper form or an electronic format
prescribed
by the department that facilitates collecting the
collection
and compiling compilation of criminal and juvenile
arrest
history record information , including fingerprint
images.and biometric data.
(b) "Biometric data" means all of the following:
(i) Fingerprint images recorded in a manner prescribed by the
department.
(ii) Palm print images, if the arresting law enforcement agency
has the electronic capability to record palm print images in a
manner prescribed by the department.
(iii) Digital images recorded during the arrest or booking
process, including a full-face capture, left and right profile, and
scars, marks, and tattoos, if the arresting law enforcement agency
has the electronic capability to record the images in a manner
prescribed by the department.
(iv) All descriptive data associated with identifying marks,
scars, amputations, and tattoos.
(c) (b)
"Commanding officer"
means the director of the
department
of state police employee in charge of the criminal
justice
information center or its successor administrative unit.or
the director's designee.
(d) (c)
"Criminal history record
information" means name; date
of
birth; fingerprints; photographs, if available; personal
descriptions including identifying marks, scars, amputations, and
tattoos; aliases and prior names; social security number, driver's
license number, and other identifying numbers; and information on
misdemeanor arrests and convictions and felony arrests and
convictions.
(e) (d)
"Department" means the
department of state police.
(f) (e)
"Felony" means a
violation of a penal law of this
state for which the offender may be punished by imprisonment for
more than 1 year or an offense expressly designated by law to be a
felony.
(f)
"Fingerprint impressions" means fingerprint images
recorded
in a manner prescribed by the department.
(g) "Juvenile history record information" means name; date of
birth;
fingerprints; photographs, if available; personal
descriptions including identifying marks, scars, amputations, and
tattoos; aliases and prior names; social security number, driver's
license number, and other identifying numbers; and information on
juvenile offense arrests and adjudications or convictions.
(h) "Juvenile offense" means an offense committed by a
juvenile that, if committed by an adult, would be a felony, a
criminal contempt conviction under section 2950 or 2950a of the
revised judicature act of 1961, 1961 PA 236, MCL 600.2950 and
600.2950a, a criminal contempt conviction for a violation of a
foreign protection order that satisfies the conditions for validity
provided in section 2950i of the revised judicature act of 1961,
1961 PA 236, MCL 600.2950i, or a misdemeanor.
(i) "Law enforcement agency" means the police department of a
city, township, or village, the sheriff's department of a county,
the department, or any other governmental law enforcement agency of
this state.
(j) "Misdemeanor" means either of the following:
(i) A violation of a penal law of this state that is not a
felony or a violation of an order, rule, or regulation of a state
agency that is punishable by imprisonment or a fine that is not a
civil fine.
(ii) A violation of a local ordinance that substantially
corresponds to state law and that is not a civil infraction.
Sec. 2. (1) The commanding officer shall procure and file for
purposes of criminal identification criminal history record
information
on all persons who have been convicted arrested within
this
state of either a felony or a misdemeanor, or who have been
convicted
of criminal contempt under section
2950 or 2950a of the
revised judicature act of 1961, 1961 PA 236, MCL 600.2950 and
600.2950a, or criminal contempt for a violation of a foreign
protection order that satisfies the conditions for validity
provided in section 2950i of the revised judicature act of 1961,
1961 PA 236, MCL 600.2950i. The commanding officer shall procure
and file for purposes of juvenile identification juvenile history
record information on all juveniles who have been adjudicated to
have committed a juvenile offense within this state.
(2) The commanding officer shall provide all reporting
officials with forms or prescribe the format, numerical
identifiers, and instructions which specify the information
required, the time it is to be forwarded, the method of
classifying, and other matters to facilitate criminal and juvenile
history record information collection and compilation.
(3)
The commanding officer shall file the fingerprint
impressions
and photographs, if available, biometric
data and
criminal history record information that are forwarded to the
department of all persons confined in a prison or other state
correctional facility.
(4) The commanding officer shall provide access to criminal
history record information and juvenile history record information,
as prescribed by the department and as authorized by law.
(5) A copy of an arrest card shall be forwarded to the federal
bureau of investigation.
Sec. 2a. (1) Except as provided in subsection (2), all
criminal history record information that is associated with a state
identification
number and is supported by fingerprint impressions
or
images biometric data shall be disseminated in response to a
fingerprint-based or name-based search of the criminal history
record information database.
(2) Subsection (1) does not require the dissemination of
criminal history record information that is nonpublic or is
prohibited by law from being disseminated.
Sec.
3. (1) Except as provided in subsection (3), immediately
upon the arrest of a person for a felony or for a misdemeanor
violation of state law for which the maximum possible penalty
exceeds 92 days' imprisonment or a fine of $1,000.00, or both, or a
misdemeanor authorized for DNA collection under section 6(1)(b) of
the DNA identification profiling system act, 1990 PA 250, MCL
28.176, or for criminal contempt under section 2950 or 2950a of the
revised judicature act of 1961, 1961 PA 236, MCL 600.2950 and
600.2950a, or criminal contempt for a violation of a foreign
protection order that satisfies the conditions for validity
provided in section 2950i of the revised judicature act of 1961,
1961 PA 236, MCL 600.2950i, or for a juvenile offense, other than a
juvenile offense for which the maximum possible penalty does not
exceed 92 days' imprisonment or a fine of $1,000.00, or both, or
for a juvenile offense that is a misdemeanor authorized for DNA
collection under section 6(1)(b) of the DNA identification
profiling system act, 1990 PA 250, MCL 28.176, the arresting law
enforcement
agency in this state shall take collect
the person's
fingerprints
biometric data and forward the fingerprints biometric
data to the department within 72 hours after the arrest. The
fingerprints
biometric data shall be sent to the department on
forms furnished by or in a manner prescribed by the department, and
the
department shall forward the fingerprints biometric data to the
director of the federal bureau of investigation on forms furnished
by or in a manner prescribed by the director.
(2)
A law enforcement agency shall take collect a person's
fingerprints
biometric data under this subsection if the person is
arrested for a misdemeanor violation of state law for which the
maximum penalty is 93 days or for criminal contempt under section
2950 or 2950a of the revised judicature act of 1961, 1961 PA 236,
MCL 600.2950 and 600.2950a, or criminal contempt for a violation of
a foreign protection order that satisfies the conditions for
validity provided in section 2950i of the revised judicature act of
1961,
1961 PA 236, MCL 600.2950i, if the fingerprints biometric
data
have not previously been taken collected and forwarded to the
department under subsection (1). A law enforcement agency shall
take
collect a person's fingerprints biometric data under this
subsection if the person is arrested for a violation of a local
ordinance for which the maximum possible penalty is 93 days'
imprisonment and that substantially corresponds to a violation of
state law that is a misdemeanor for which the maximum possible term
of imprisonment is 93 days. If the person is convicted of any
violation,
the law enforcement agency shall take collect the
person's
fingerprints biometric
data before sentencing if not
previously
taken. collected. The court shall forward to the law
enforcement agency a copy of the disposition of conviction, and the
law
enforcement agency shall forward the person's fingerprints
biometric data and the copy of the disposition of conviction to the
department within 72 hours after receiving the disposition of
conviction in the same manner as provided in subsection (1). If the
person is convicted of violating a local ordinance, the law
enforcement agency shall indicate on the form sent to the
department the statutory citation for the state law to which the
local ordinance substantially corresponds.
(3)
A person's fingerprints biometric
data are not required to
be
taken collected and forwarded to the department under subsection
(1)
or (2) solely because he or she has been convicted of arrested
for violating section 904(3)(a) of the Michigan vehicle code, 1949
PA 300, MCL 257.904, or a local ordinance substantially
corresponding to section 904(3)(a) of the Michigan vehicle code,
1949 PA 300, MCL 257.904.
(4)
The arresting law enforcement agency may take 1 set of
fingerprints
collect the biometric data of a person who is arrested
for a misdemeanor punishable by imprisonment for not more than 92
days or a fine of not more than $1,000.00, or both, and who fails
to produce satisfactory evidence of identification as required by
section
1 of 1961 PA 44, MCL 780.581. These fingerprints biometric
data shall be forwarded to the department immediately. Upon
completion of the identification process by the department, the
fingerprints
biometric data shall be destroyed.
(5)
An arresting law enforcement agency in this state may take
collect
the person's fingerprints on forms
furnished by the
commanding
officer biometric data upon an arrest for a misdemeanor
other than a misdemeanor described in subsection (1), (2), or (4),
and
may forward the fingerprints biometric
data to the department.
(6)
If a court orders the taking collection
of fingerprints of
a
person pursuant to person's
biometric data under section 11 or 18
of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL
712A.11 and 712A.18, or section 29 of chapter IV or section 1 of
chapter IX of the code of criminal procedure, 1927 PA 175, MCL
764.29 and 769.1, the law enforcement agency shall forward the
fingerprints
biometric data and arrest card to the department.
(7) If a petition is not authorized for a juvenile accused of
a juvenile offense, if a person arrested for having committed an
offense
for which he or she was fingerprinted biometric data were
collected under this section is released without a charge made
against him or her, or if criminal contempt proceedings are not
brought or criminal charges are not made against a person arrested
for criminal contempt for a personal protection order violation
under section 2950 or 2950a of the revised judicature act of 1961,
1961 PA 236, MCL 600.2950 and 600.2950a, or criminal contempt for a
violation of a foreign protection order that meets the requirements
for validity under section 2950i of the revised judicature act of
1961, 1961 PA 236, MCL 600.2950i, the official taking or holding
the
person's fingerprints biometric
data and arrest card shall
immediately
destroy the fingerprints biometric
data and arrest
card. The law enforcement agency shall notify the department in
writing
a manner prescribed by the
department that a petition was
not authorized against the juvenile or that a charge was not made
or that a criminal contempt proceeding was not brought against the
arrested
person if the juvenile's or arrested person's fingerprints
were
arrest card was forwarded to the department.
(8) If a juvenile is adjudicated and found not to be within
the provisions of section 2(a)(1) of chapter XIIA of the probate
code of 1939, 1939 PA 288, MCL 712A.2, or if an accused is found
not
guilty of an offense for which he or she was fingerprinted
biometric data were collected under this section, upon final
disposition of the charge against the accused or juvenile, the
fingerprints
biometric data and arrest card shall be destroyed by
the official holding those items and the clerk of the court
entering the disposition shall notify the department of any finding
of
not guilty or not guilty by reason of insanity, dismissal, or
nolle prosequi, if it appears that the biometric data of the
accused
was were initially fingerprinted collected under this
section, or of any finding that a juvenile alleged responsible for
a juvenile offense is not within the provisions of section 2(a)(1)
of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL
712A.2.
(9) Upon final disposition of the charge against the accused,
the clerk of the court entering the disposition shall immediately
advise the department of the final disposition of the arrest for
which
the person was fingerprinted person's
biometric data were
collected if a juvenile was adjudicated to have committed a
juvenile offense or if the accused was convicted of an offense for
which
he or she was fingerprinted the
biometric data of the accused
were collected under this section or section 16a of chapter IX of
the code of criminal procedure, 1927 PA 175, MCL 769.16a. With
regard to any adjudication or conviction, the clerk shall transmit
to the department information as to any adjudication or finding of
guilty or guilty but mentally ill; any plea of guilty, nolo
contendere, or guilty but mentally ill; the offense of which the
accused was convicted; and a summary of any deposition or sentence
imposed. The summary of the sentence shall include any probationary
term; any minimum, maximum, or alternative term of imprisonment;
the total of all fines, costs, and restitution ordered; and any
modification of sentence. If the sentence is imposed under any of
the following sections, the report shall so indicate:
(a) Section 7411 of the public health code, 1978 PA 368, MCL
333.7411.
(b) Section 1076(4) of the revised judicature act of 1961,
1961 PA 236, MCL 600.1076.
(c) Sections 11 to 15 of chapter II of the code of criminal
procedure, 1927 PA 175, MCL 762.11 to 762.15.
(d) Section 4a of chapter IX of the code of criminal
procedure, 1927 PA 175, MCL 769.4a.
(e) Section 350a(4) of the Michigan penal code, 1931 PA 328,
MCL 750.350a.
(f) Section 430(8)(a) of the Michigan penal code, 1931 PA 328,
MCL 750.430.
(10) The department shall record the disposition of each
charge and shall inform the director of the federal bureau of
investigation of the final disposition of any arrest or offense for
which
a person was fingerprinted person's
biometric data were
collected under this section or section 16a of chapter IX of the
code of criminal procedure, 1927 PA 175, MCL 769.16a.
(11)
The department shall compare the fingerprints and
description
biometric data received with those already on file and
if the department finds that the person arrested has a criminal
record, the department shall immediately inform the arresting
agency and prosecuting attorney of this fact.
(12) The provisions of subsection (8) that require the
destruction
of the fingerprints biometric
data and the arrest card
do
not apply to a person who was arraigned in circuit court or the
family
division of circuit court for any
of the following:
(a) The commission or attempted commission of a crime with or
against a child under 16 years of age.
(b) Rape.
(c) Criminal sexual conduct in any degree.
(d) Sodomy.
(e) Gross indecency.
(f) Indecent liberties.
(g) Child abusive commercial activities.
(h) A person who has a prior conviction, other than a
misdemeanor traffic offense, unless a judge of a court of record,
except the probate court, by express order on the record, orders
the
destruction or return of the fingerprints biometric data and
arrest card.
(i) A person arrested who is a juvenile charged with an
offense that would constitute the commission or attempted
commission of any of the crimes in this subsection if committed by
an adult.
(13) Subsection (5) does not permit the forwarding to the
department
of the fingerprints biometric
data of a person accused
and convicted under the Michigan vehicle code, 1949 PA 300, MCL
257.1 to 257.923, or a local ordinance substantially corresponding
to a provision of that act, unless the offense is punishable upon
conviction by imprisonment for more than 92 days or is an offense
that is punishable by imprisonment for more than 92 days upon a
subsequent conviction.
Sec. 3a. (1) A person shall not refuse to allow or resist the
taking
collection of his or her fingerprints biometric data if
authorized or required under this act.
(2) A person who violates subsection (1) is guilty of a
misdemeanor punishable by imprisonment for not more than 90 days or
by a fine of not more than $500.00, or both.
Sec.
8. Fingerprint impressions Biometric
data obtained under
a law or rule for noncriminal identification purposes may be used
for criminal identification purposes unless prohibited by law or
rule.