HOUSE BILL No. 5600

 

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.