HOUSE BILL NO. 5120

October 16, 2019, Introduced by Reps. Robinson, Jones, Marino, Berman, Liberati, Garza, Cynthia Johnson, Byrd, Tyrone Carter, Warren, Sneller, Brenda Carter, Gay-Dagnogo, Peterson, Neeley, Elder, Cambensy, Brixie, Tate, Hammoud, Guerra, Kennedy, Wittenberg, Hope, Love, Coleman, Ellison, Manoogian, Lasinski, Haadsma, Anthony, Bolden, Yancey and Cherry and referred to the Committee on Judiciary.

"An act to provide for setting aside the conviction in certain criminal cases; to provide for the effect of such action; to provide for the retention of certain nonpublic records and their use; to prescribe the powers and duties of certain public agencies and officers; and to prescribe penalties,"

by amending section 1 (MCL 780.621), as amended by 2016 PA 336.

the people of the state of michigan enact:

Sec. 1. (1) Except as otherwise provided in this section, a person who is convicted of not more than 1 offense may file an application with the convicting court for the entry of an order setting aside 1 or more convictions as follows:

(a) A person who is convicted of not more than 1 felony offense and not more than 2 misdemeanor offenses may petition the convicting court to set aside the felony offense.

(b) Except as provided in subdivision (c), a person who is convicted of not more than 2 misdemeanor offenses and no other felony or misdemeanor offenses may petition the convicting court or the convicting courts to set aside 1 or both of the misdemeanor convictions.

(c) A person who is convicted of a violation or an attempted violation of section 520e of the Michigan penal code, 1931 PA 328, MCL 750.520e, before January 12, 2015 may petition the convicting court to set aside the conviction if the individual has not been convicted of another offense other than not more than 2 minor offenses. As used in this subdivision, "minor offense" means a misdemeanor or ordinance violation to which all of the following apply:

(i) The maximum permissible term of imprisonment does not exceed 90 days.

(ii) The maximum permissible fine is not more than $1,000.00.

(iii) The person who committed the offense is not more than 21 years old.

(2) A conviction that was deferred and dismissed under any of the following, whether a misdemeanor or a felony, shall be is considered a misdemeanor conviction under subsection (1) for purposes of determining whether a person is eligible to have any conviction set aside under this act:

(a) Section 703 of the Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1703.

(b) Section 1070(1)(b)(i) or 1209 of the revised judicature act of 1961, 1961 PA 236, MCL 600.1070 and 600.1209.

(c) Section 13 of chapter II or section 4a of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 762.13 and 769.4a.

(d) Section 7411 of the public health code, 1978 PA 368, MCL 333.7411.

(e) Section 350a or 430 of the Michigan penal code, 1931 PA 328, MCL 750.350a and 750.430.

(f) Any other law or laws of this state or of a political subdivision of this state similar in nature and applicability to those listed in this subsection that provide for the deferral and dismissal of a felony or misdemeanor charge.

(3) A person shall not apply to have set aside, and a judge shall not set aside, a conviction for any of the following:

(a) A felony for which the maximum punishment is life imprisonment or an attempt to commit a felony for which the maximum punishment is life imprisonment.

(b) A violation or attempted violation of section 136b(3), 136d(1)(b) or (c), 145c, 145d, 520c, 520d, or 520g of the Michigan penal code, 1931 PA 328, MCL 750.136b, 750.136d, 750.145c, 750.145d, 750.520c, 750.520d, and 750.520g.

(c) A violation or attempted violation of section 520e of the Michigan penal code, 1931 PA 328, MCL 750.520e, if the conviction occurred on or after January 12, 2015.

(d) A traffic offense, including, but not limited to, a conviction for operating while intoxicated.

(e) A felony conviction for domestic violence, if the person has a previous misdemeanor conviction for domestic violence.

(f) A violation of former section 462i or 462j or chapter LXVIIA or chapter LXXXIII-A of the Michigan penal code, 1938 PA 321, 1931 PA 328, MCL 750.462a to 750.462h and 750.543a to 750.543z.

(4) A person who is convicted of a violation of section 448, 449, or 450 of the Michigan penal code, 1931 PA 328, MCL 750.448, 750.449, and 750.450, or a local ordinance substantially corresponding to section 448, 449, or 450 of the Michigan penal code, 1931 PA 328, MCL 750.448, 750.449, and 750.450, may apply to have that conviction set aside if he or she committed the offense as a direct result of his or her being a victim of a human trafficking violation.

(5) An application under subsection (1) shall only be filed 5 or more years after whichever of the following events occurs last:

(a) Imposition of the sentence for the conviction that the applicant seeks to set aside.

(b) Completion of probation imposed for the conviction that the applicant seeks to set aside.

(d) Completion of any term of imprisonment imposed for the conviction that the applicant seeks to set aside.

(6) If a petition under this act is denied by the convicting court, a person shall not file another petition concerning the same conviction or convictions with the convicting court until 3 years after the date the convicting court denies the previous petition, unless the court specifies an earlier date for filing another petition in the order denying the petition.

(7) An application under subsection (4) may be filed at any time following the date of the conviction to be set aside. A person may apply to have more than 1 conviction set aside under subsection (4).

(8) An application under this section is invalid unless it contains the following information and is signed under oath by the person whose conviction is or convictions are to be set aside:

(a) The full name and current address of the applicant.

(b) A certified record of each conviction that is to be set aside.

(c) For an application under subsection (1), a statement that the applicant has not been convicted of an offense other than the conviction or convictions sought to be set aside as a result of this application and any nondisqualifying misdemeanor convictions described in subsection (1)(a).

(d) A statement listing all actions enumerated in subsection (2) that were initiated against the applicant and have been dismissed.

(e) A statement as to whether the applicant has previously filed an application to set aside this or other conviction 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) If the person is seeking to have 1 or more convictions set aside under subsection (4), a statement that he or she meets the criteria set forth in subsection (4), together with a statement of the facts supporting his or her contention that the conviction was a direct result of his or her being a victim of human trafficking.

(h) A consent to the use of the nonpublic record created under section 3 to the extent authorized by section 3.

(9) The applicant shall submit a copy of the application and 1 complete set 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 section 3, and shall forward an electronic copy of 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 conviction of the applicant, and the setting aside of any 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.

(10) The copy of the application submitted to the department of state police under subsection (9) shall must be accompanied by a fee of $50.00 payable to the state of Michigan that shall must be used by the department of state police to defray the expenses incurred in processing the application.

(11) A copy of the application shall must be served upon the attorney general and upon the office of each prosecuting attorney who prosecuted the crime or crimes the applicant seeks to set aside, and an opportunity shall must be given to the attorney general and to the prosecuting attorney to contest the application. If a conviction was for an assaultive crime or a serious misdemeanor, the prosecuting attorney shall notify the victim of the assaultive crime or serious misdemeanor of the application under section 22a or 77a of the William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.772a and 780.827a. The notice shall must be by first-class mail to the victim's last known address. The victim has the right to appear at any proceeding under this act concerning that conviction and to make a written or oral statement.

(12) For an application under subsection (1), upon the hearing of the application the court may require the filing of affidavits and the taking of proofs as it considers proper.

(13) For an application under subsection (4), if the applicant proves to the court by a preponderance of the evidence that the conviction was a direct result of his or her being a victim of human trafficking, the court may, subject to the requirements of subsection (14), enter an order setting aside the conviction.

(14) If the court determines that the circumstances and behavior of an applicant under subsection (1) or (4), from the date of the applicant's conviction or convictions to the filing of the application warrant setting aside the conviction or convictions, and that setting aside the conviction or convictions is consistent with the public welfare, the court may enter an order setting aside the conviction or convictions.

(15) The setting aside of a conviction or convictions under this act is a privilege and conditional and is not a right.

(16) Beginning on January 1, 2020, a person convicted of 1 or more of the following offenses for the possession or use of marihuana may apply to set aside the conviction or convictions under this subsection notwithstanding the requirements of subsection (1):

(a) A violation of section 7403(2)(d) of the public health code, 1978 PA 368, MCL 333.7403.

(b) A violation of section 7404(2)(d) of the public health code, 1978 PA 368, MCL 333.7404.

(c) A local ordinance of a political subdivision of this state substantially corresponding to the misdemeanor offenses under subdivisions (a) and (b).

(17) An application under subsection (16) must contain all of the following information:

(a) The full name and current address of the applicant.

(b) A certified record of each conviction that is to be set aside.

(18) A copy of the application under subsection (16) must be served upon the agency that prosecuted the offense or offenses the applicant seeks to set aside.

(19) A rebuttable presumption that a local ordinance conviction sought to be set aside by an applicant is the substantial equivalent of misdemeanor possession or use of marihuana described under subsection (16)(a) and (b) arises upon the filing of an application under subsection (16). The presumption described in this subsection may be rebutted by the presentation of evidence by the prosecuting agency that prosecuted the case that demonstrates by a preponderance of the evidence that a local ordinance conviction or convictions sought to be set aside by an applicant are not the substantial equivalent of misdemeanor possession or use of marihuana or are not related to marihuana in an answer to the application. An answer made under this subsection must be filed no later than 60 days from the date of service of the application. If an answer is filed with the convicting court, the answering party must serve the answer upon the other parties to the matter.

(20) Upon the expiration of the 60-day period under subsection (19), if the prosecuting agency has not filed an answer to the application addressing the rebuttable presumption described in subsection (19), the convicting court must within 21 days enter an order setting aside the conviction or convictions and serve a copy of the order upon the applicant, the arresting agency, the prosecuting agency, and the department of the state police.

(21) If the prosecuting agency files an answer addressing the rebuttable presumption in subsection (19), the convicting court must promptly set the matter for a hearing no later than 30 days from its receipt of the answer, and serve a notice of the hearing upon the applicant. At the hearing the convicting court must decide if the prosecuting agency has proven by a preponderance of the evidence that a local ordinance conviction or convictions sought to be set aside by an applicant are not the substantial equivalent of misdemeanor possession or use of marihuana under sections 7403 or 7404 of the public health code, 1978 PA 368, MCL 333.7403 and 333.7404. After a hearing under this subsection, the court shall enter an order denying or granting the application no later than 14 days after completion of the hearing and serve any written opinions and orders, including an order setting aside the conviction or convictions, upon the parties, including the department of state police. The rules of evidence do not apply to a hearing under this subsection.

(22) If an application to set aside a conviction or convictions under subsection (16) is granted, the arresting agency and the department of the state police shall maintain the nonpublic record created under section 3 for use as authorized under section 3.

(23) If an application to set aside a conviction or convictions is granted under subsection (16), the applicant may not thereafter seek resentencing in another criminal case the applicant was sentenced for during which the conviction or convictions at issue were used in determining an appropriate sentence for the applicant, whether or not the setting aside of the conviction or convictions would have changed the scoring of a prior record variable for purposes of the sentencing guidelines or otherwise.

(24) A party aggrieved by the ruling of the convicting court considering an application under subsection (16) may seek a rehearing or reconsideration under the applicable rules of the convicting court or may file an appeal with the circuit court or, if applicable, the court of appeals in accordance with the rules of those courts.

(25) The setting aside of a conviction under subsection (16) does not entitle the applicant to the return of any fines, costs, or fees imposed as part of the applicant's sentence for the conviction or convictions or of any money or property forfeited by the prosecuting agency or any law enforcement agency as a result of the conduct leading to the conviction or as a result of the conviction itself.

(26) Beginning on January 1, 2020, a person convicted of 1 or more of the following felony violations having to do with marihuana may apply to have those convictions set aside under this subsection notwithstanding the requirements of subsection (1):

(a) A violation of section 7401(2)(d)(iii) of the public health code, 1978 PA 368, MCL 333.7401.

(b) A violation of any other section of law or under any previously existing sections of the public health code, 1978 PA 368, MCL 333.1101 to 333.25211, that was substantially equivalent to section 7401(2)(d)(iii) under the public health code, 1978 PA 368, MCL 333.7401, as it existed on the effective date of the amendatory act that added this subdivision. It is the applicant's burden under this subdivision to demonstrate by a preponderance of the evidence that the conviction or convictions sought to be set aside are substantially equivalent to section 7401(2)(d)(iii) under the public health code, 1978 PA 368, MCL 333.7401, as it existed on the effective date of the amendatory act that added this subdivision.

(27) An application under subsection (26) must be made to the convicting court and contain all of the following information:

(a) The full name and current address of the applicant.

(b) A certified record of each conviction that is to be set aside.

(28) A copy of the application under subsection (26) must be served upon the agency that prosecuted the offense or offenses the applicant seeks to set aside.

(29) A rebuttable presumption in favor of setting aside the conviction or convictions arises upon the filing of an application under subsection (26). The presumption under this subsection may be rebutted upon the presentation of evidence by the prosecuting agency that establishes by a preponderance of the evidence that the setting aside of the conviction or convictions would not be consistent with the interests of justice. A prosecuting agency may contest an application under subsection (26) by filing an answer to the application in the convicting court no later than 90 days from the date of service of the application. If an answer is filed with the convicting court, the filing party must serve the answer upon the other parties to the matter.

(30) Upon the expiration of the 90-day period under subsection (29), if the prosecuting agency has not filed an answer to the application addressing, if applicable, the applicant's burden under subsection (26)(b) or the rebuttable presumption described in subsection (29), or both, the convicting court must within 21 days upon finding, if applicable, that the applicant's burden under subsection (26)(b) has been met, enter an order setting aside the conviction or convictions and serve a copy of the order upon the applicant, the arresting agency, the prosecuting agency, and the department of the state police.

(31) If the prosecuting agency files an answer addressing the applicant's burden in subsection (26)(b) or the rebuttable presumption in subsection (29), or both, the convicting court must promptly set the matter for a hearing no later than 60 days from its receipt of the answer, and serve a notice of the hearing upon the applicant and the prosecuting agency. At the hearing the convicting court must decide if the applicant or the prosecuting agency have met their burdens concerning the presumptions in subsection (26)(b) and subsection (29). After a hearing under this subsection, the court shall enter an order denying or granting the application no later than 14 days after completion of the hearing and serve any written opinions and orders, including an order setting aside the conviction or convictions, upon the parties, including the department of state police. The rules of evidence do not apply to a hearing under this subsection.

(32) In determining whether the presumption in subsection (29) has been rebutted by a preponderance of the evidence, the convicting court may consider, but is not limited to, all of the following factors:

(a) Whether the applicant's conviction was or convictions were the result of a plea agreement between the prosecuting agency and the applicant.

(b) Whether the applicant used or possessed firearms while he or she committed the offense or offenses irrespective of whether the applicant was charged or convicted of any firearm offenses.

(c) Whether the applicant's conduct leading to the conviction or convictions involved minors irrespective of whether the applicant was charged or convicted of any offenses involving minors.

(d) Whether the applicant's conduct leading to the conviction or convictions resulted in serious physical harm to any person or persons.

(e) Whether the applicant's conduct leading to the conviction or convictions demonstrates that the applicant was engaged in an ongoing criminal enterprise, irrespective of whether the applicant was charged or convicted of any offenses reflecting such conduct.

(33) Except as permitted in subsection (32), in determining whether the prosecuting agency has overcome the presumption in subsection (29), the convicting court shall not consider or use in any manner the applicant's criminal history including the number of prior convictions in the applicant's criminal history.

(34) If an application to set aside a conviction or convictions under subsection (26) is granted, the arresting agency and the department of the state police shall maintain the nonpublic record created under section 3 for use as authorized under section 3.

(35) If an application to set aside a conviction or convictions is granted under subsection (26), the applicant may not thereafter seek resentencing in another criminal case the applicant was sentenced for during which the conviction or convictions at issue were used in determining an appropriate sentence for the applicant, whether or not the setting aside of the conviction or convictions would have changed the scoring of a prior record variable for purposes of the sentencing guidelines or otherwise.

(36) A party aggrieved by the ruling of the convicting court considering an application under subsection (26) may seek a rehearing or reconsideration under the applicable rules of the convicting court or may file an appeal with the circuit court or, if applicable, the court of appeals in accordance with the rules of those courts.

(37) The setting aside of a conviction under subsection (26) does not entitle the applicant to the return of any fines, costs, or fees imposed as part of the applicant's sentence for the conviction or convictions or of any money or property forfeited by the prosecuting agency or any law enforcement agency as a result of the conduct leading to the conviction or as a result of the conviction itself.

(38) (16) As used in this section:

(a) "Assaultive crime" means that term as defined in section 9a of chapter X of the code of criminal procedure, 1927 PA 175, MCL 770.9a.

(b) "Domestic violence" means that term as defined in section 1 of 1978 PA 389, MCL 400.1501.

(i) For purposes of the offense to be set aside, felony means a violation of a penal law of this state that is punishable by imprisonment for more than 1 year or that is designated by law to be a felony.

(ii) For purposes of identifying a prior offense, felony means a violation of a penal law of this state, of another state, or of the United States that is punishable by imprisonment for more than 1 year or is designated by law to be a felony.

(d) "Human trafficking violation" means a violation of chapter LXVIIA of the Michigan penal code, 1931 PA 328, MCL 750.462a to 750.462h, or former section 462i or 462j of that act.

(e) "Indian tribe" means an Indian tribe, Indian band, or Alaskan native village that is recognized by federal law or formally acknowledged by a state.

(f) "Misdemeanor" means a violation of any of the following:

(i) A penal law of this state, another state, an Indian tribe, or the United States that is not a felony.

(ii) An order, rule, or regulation of a state agency that is punishable by imprisonment for not more than 1 year or a fine that is not a civil fine, or both.

(iii) A local ordinance of a political subdivision of this state substantially corresponding to a crime listed in subparagraph (i) or (ii) that is not a felony.

(iv) A violation of the law of another state or political subdivision of another state substantially corresponding to a crime listed under subparagraph (i) or (ii) that is not a felony.

(v) A violation of the law of the United States substantially corresponding to a crime listed under subparagraph (i) or (ii) that is not a felony.

(g) "Operating while intoxicated" means a violation of any of the following:

(i) Section 625 or 625m of the Michigan vehicle code, 1949 PA 300, MCL 257.625 and 257.625m.

(ii) A local ordinance substantially corresponding to a violation listed in subparagraph (i).

(iii) A law of an Indian tribe substantially corresponding to a violation listed in subparagraph (i).

(iv) A law of another state substantially corresponding to a violation listed in subparagraph (i).

(v) A law of the United States substantially corresponding to a violation listed in subparagraph (i).

(h) "Serious misdemeanor" means that term as defined in section 61 of the William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.811.

(i) "Victim" means that term as defined in sections 2, 31, and 61 of the William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.752, 780.781, and 780.811.