SB-0585, As Passed Senate, October 2, 2014

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 585

     A bill to amend 1931 PA 328, entitled

"The Michigan penal code,"

(MCL 750.1 to 750.568) by adding section 451c.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 451c. (1) This section applies only if the violation

described in subsection (2) was committed as a direct result of the

individual being a victim of a human trafficking violation.

     (2) When an individual who has not been convicted previously

of a violation of section 448, 449, 450, or 462 or a local

ordinance substantially corresponding to section 448, 449, 450, or

462 pleads guilty to, or is found guilty of, a violation of section

448, 449, 450, or 462 or a local ordinance substantially

corresponding to section 448, 449, 450, or 462, the court, without

entering a judgment of guilt and with the consent of the accused

and of the prosecuting attorney, may defer further proceedings and

place the accused on probation as provided in this section.

However, before deferring proceedings under this subsection, the

court shall do all of the following:

     (a) Contact the department of state police and determine

whether, according to the records of the department of state

police, the accused has previously been convicted of a violation of

section 448, 449, 450, or 462 or a local ordinance substantially

corresponding to section 448, 449, 450, or 462 or has previously

availed himself or herself of this section.

     (b) If the search of the records under subdivision (a) reveals

an arrest for an assaultive crime but no disposition, the court

shall contact the arresting agency and the court that had

jurisdiction over the violation to determine the disposition of

that arrest for purposes of this section.

     (c) Determine whether the accused has met the conditions

described in subsection (1) as follows:

     (i) The accused bears the burden of proving to the court by a

preponderance of the evidence that the violation was a direct

result of his or her being a victim of human trafficking.

     (ii) To prove that he or she is a victim of human trafficking,

the accused shall state under oath that he or she meets the

conditions described in subsection (1) with facts supporting his or

her claim that the violation was a direct result of being a victim

of human trafficking.

     (3) Upon a violation of a term or condition of probation, the

court may enter an adjudication of guilt and proceed as otherwise

provided in this chapter.

     (4) An order of probation entered under subsection (2) may

include any condition of probation authorized under section 3 of

chapter XI of the code of criminal procedure, 1927 PA 175, MCL

771.3, including, but not limited to, requiring the accused to

participate in a mandatory counseling program. The court may order

the accused to pay the reasonable costs of the mandatory counseling

program. The court also may order the accused to participate in a

drug treatment court under chapter 10A of the revised judicature

act of 1961, 1961 PA 236, MCL 600.1060 to 600.1084. The court may

order the defendant to be imprisoned for not more than 93 days at a

time or at intervals, which may be consecutive or nonconsecutive

and within the period of probation, as the court determines.

However, the period of imprisonment shall not exceed the maximum

period of imprisonment authorized for the offense if the maximum

period is less than 93 days. The court may permit day parole as

authorized under 1962 PA 60, MCL 801.251 to 801.258. The court may

permit a work or school release from jail.

     (5) The court shall enter an adjudication of guilt and proceed

as otherwise provided in this chapter if any of the following

circumstances exist:

     (a) The accused commits a violation of section 448, 449, 450,

or 462 or a local ordinance substantially corresponding to section

448, 449, 450, or 462 during the period of probation.

     (b) The accused violates an order of the court that he or she

receive counseling regarding his or her violent behavior.

     (c) The accused violates an order of the court that he or she

have no contact with a named individual.

     (6) Upon fulfillment of the terms and conditions, the court

shall discharge the person and dismiss the proceedings against the

person. Discharge and dismissal under this section shall be without

adjudication of guilt and is not a conviction for purposes of this

section or for purposes of disqualifications or disabilities

imposed by law upon conviction of a crime. There shall be only 1

discharge and dismissal under this section with respect to any

individual.

     (7) All court proceedings under this section shall be open to

the public. Except as provided in subsection (8), if the record of

proceedings as to the defendant is deferred under this section, the

record of proceedings during the period of deferral shall be closed

to public inspection.

     (8) Unless the court enters a judgment of guilt under this

section, the department of state police shall retain a nonpublic

record of the arrest, court proceedings, and disposition of the

criminal charge under this section. However, the nonpublic record

shall be open to the following individuals and entities for the

purposes noted:

     (a) The courts of this state, law enforcement personnel, the

department of corrections, and prosecuting attorneys for use only

in the performance of their duties or to determine whether an

employee of the court, law enforcement agency, department of

corrections, or prosecutor's office has violated his or her

conditions of employment or whether an applicant meets criteria for

employment with the court, law enforcement agency, department of

corrections, or prosecutor's office.

     (b) The courts of this state, law enforcement personnel, and

prosecuting attorneys for showing that a defendant in a criminal

action for a violation of section 448, 449, 450, or 462 or a local

ordinance substantially corresponding to section 448, 449, 450, or

462 has already once availed himself or herself of this section.

     (c) The department of human services for enforcing child

protection laws and vulnerable adult protection laws or

ascertaining the preemployment criminal history of any individual

who will be engaged in the enforcement of child protection laws or

vulnerable adult protection laws.

     (9) As used in this section, "human trafficking violation"

means a violation of chapter LXVIIA.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.

     Enacting section 2. This amendatory act does not take effect

unless House Bill No. 5234 of the 97th Legislature is enacted into

law.