May 8, 2012, Introduced by Reps. Haveman, Bumstead, Hooker, Heise, Kurtz, Genetski, Lipton, MacMaster, Wayne Schmidt, Opsommer, Foster, Pettalia, Muxlow, Shirkey, Lori and Jackson and referred to the Committee on Judiciary.
A bill to amend 1939 PA 288, entitled
"Probate code of 1939,"
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 and
who
has no felony convictions may file an application with the
adjudicating
court for the entry of an order setting aside the
adjudication.
A person may have only 1 adjudication set aside under
this
section.
(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, Act No. 300 of the Public Acts of 1949, being
sections
257.1 to 257.923 of the Michigan Compiled Laws, 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.
(1) A person may file an application with the adjudicating
court for the entry of an order setting aside 1 or more juvenile
adjudications as follows:
(a) A person who has been adjudicated of not more than 2
juvenile offenses 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 1 or both of the adjudications.
For the purposes of eligibility only under this subdivision, a
traffic offense is not a misdemeanor, except for a violation of
operating while intoxicated as that term is defined in section 625
of the Michigan vehicle code, 1949 PA 300, MCL 257.625.
(b) A person who has been adjudicated for 3 or more juvenile
offenses as a result of a single court disposition may file an
application with the adjudicating court for the entry of an order
setting aside all adjudications related to that disposition. A
person shall not file an application under this subdivision if that
person has been adjudicated or convicted of a misdemeanor or felony
offense subsequent to the disposition for which the person is
applying to set aside 3 or more juvenile offenses. For the purposes
of eligibility only under this subdivision, a traffic offense is
not a misdemeanor, except for a violation of operating while
intoxicated as that term is defined in section 625 of the Michigan
vehicle code, 1949 PA 300, MCL 257.625.
(2) (3)
An application under this section
shall not be filed
until the expiration of 5 years following imposition of the
disposition
for any of the adjudication adjudications that the
applicant seeks to set aside, or 5 years following completion of
any
term of detention for that the
adjudication that the person
seeks to set aside, or when the person becomes 24 years of age,
whichever occurs later.
(3) (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 one juvenile offenses that is
are
sought to be set aside as a result of this application or as
permitted under subsection (1).
(d) A statement that the applicant has not been convicted of
any felony offense if the applicant is applying under subsection
(1)(a).
(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), (12), to the extent authorized by subsection (13)
(12).
(h) A statement that the applicant has not been convicted of a
misdemeanor or felony criminal offense if the applicant is applying
under subsection (1)(b).
(4) (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), (12), 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.
(5) (6)
The copy of the application
submitted to the
department
of state police pursuant to under
subsection (5) (4)
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.
(6) (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, Act No.
87
of the Public Acts of 1985, being section 780.796a of the
Michigan
Compiled Laws. 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, Act No. 175 of
the
Public Acts of 1927, being section 770.9a of the Michigan
Compiled
Laws.1927 PA 175, MCL 770.9a.
(b) "Serious misdemeanor" means that term as defined in
section
61 of Act No. 87 of the Public Acts of 1985, being section
780.811
of the Michigan Compiled Laws.the
William Van Regenmorter
crime victim's rights act, 1985 PA 87, MCL 780.811.
(c)
"Victim" means that term as defined in section 31 of Act
No.
87 of the Public Acts of 1985, being section 780.781 of the
Michigan
Compiled Laws.the William Van
Regenmorter crime victim's
rights act, 1985 PA 87, MCL 780.781.
(7) (8)
Upon the hearing of the
application, the court may
require the filing of affidavits and the taking of proofs as it
considers proper.
(8) (9)
Except as provided in subsection (10),
(9), if the
court determines that the circumstances and behavior of the
applicant from the date of the applicant's last adjudication to the
filing of the application warrant setting aside the adjudication
and that setting aside the adjudication is consistent with the
public welfare, the court may enter an order setting aside the
adjudication.
Except as provided in subsection (10), (9), the
setting aside of an adjudication under this section is a privilege
and conditional, and is not a right.
(9) (10)
Notwithstanding subsection (9), (8), 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, Act
No.
328 of the Public Acts of 1931, being section 750.413 of the
Michigan
Compiled Laws, 1931 PA 328,
MCL 750.413, if the person
files an application with the court and otherwise meets the
requirements of this section.
(10) (11)
Upon the entry of an order under
this section, the
applicant is considered not to have been previously adjudicated for
the juvenile offenses that were set aside in that order, except as
provided
in subsection (13) (12) 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 pursuant to under this
section.
(11) (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.
(12) (13)
The department of state police
shall retain a
nonpublic record of the order setting aside an adjudication 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), (13), 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.
(13) (14)
A copy of the nonpublic record
created under
subsection
(13) (12) 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, Act No. 442 of the Public Acts of 1976, being
section
15.234 of the Michigan Compiled Laws.1976 PA 442, MCL
15.234.
(14) (15)
The nonpublic record maintained
under subsection
(13)
(12) is exempt from disclosure under Act No. 442 of
the Public
Acts
of 1976, being sections 15.231 to 15.246 of the Michigan
Compiled
Laws.the freedom of
information act, 1976 PA 442, MCL
15.231 to 15.246.
(15) (16)
Except as provided in subsection (13),
(12), 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.
(16) If a petition under this section is denied by the
adjudicating court, a person shall not file another petition
concerning the same adjudication with the adjudicating court until
3 years after the adjudicating court denies the previously filed
petition.