state of michigan

100th Legislature

Regular session of 2020

Introduced by Senators Irwin, Lucido, Bayer, Polehanki, Alexander, Chang, Geiss, Bullock, McMorrow and Santana

ENROLLED SENATE BILL No. 681

AN ACT to amend 1939 PA 288, entitled “An act to revise and consolidate the statutes relating to certain aspects of the family division of circuit court, to the jurisdiction, powers, and duties of the family division of circuit court and its judges and other officers, to the change of name of adults and children, and to the adoption of adults and children; to prescribe certain jurisdiction, powers, and duties of the family division of circuit court and its judges and other officers; to prescribe the manner and time within which certain actions and proceedings may be brought in the family division of the circuit court; to prescribe pleading, evidence, practice, and procedure in certain actions and proceedings in the family division of circuit court; to provide for appeals from certain actions in the family division of circuit court; to prescribe the powers and duties of certain state departments, agencies, and officers; to provide for certain immunity from liability; and to provide remedies and penalties,” by amending section 18e of chapter XIIA (MCL 712A.18e), as amended by 2018 PA 142, and by adding section 18t to chapter XIIA.

The People of the State of Michigan enact:

CHAPTER XIIA

Sec. 18e. (1) Except as otherwise provided in subsection (2) and section 18t of this chapter, a person who has been adjudicated of not more than 1 juvenile offense that would be a felony if committed by an adult and not more than 3 juvenile offenses, of which not more than 1 may be a juvenile offense that would be a felony if committed by an adult 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 the adjudications. A person may have only 1 adjudication for an offense that would be a felony if committed by an adult and not more than 2 adjudications for an offense that would be a misdemeanor if committed by an adult or if there is no adjudication for a felony if committed by an adult, not more than 3 adjudications for an offense that would be a misdemeanor if committed by an adult set aside under this section. Multiple adjudications arising out of a series of acts that were in a continuous time sequence of 12 hours or less and that displayed a single intent and goal constitute 1 offense provided that none of the adjudications constitute any of the following:

(a) An assaultive crime as that term is defined in subsection (7).

(b) An offense involving the use or possession of a weapon.

(2) A person shall not apply under this section to have set aside, and a judge shall not under this section set aside, either 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) 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.

(3) An application under this section shall not be filed until the expiration of 1 year after the termination of jurisdiction.

(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 juvenile offenses sought to be set aside as a result of this application.

(d) A statement that the applicant has not been convicted of any felony offense.

(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), to the extent authorized by subsection (13).

(5) Upon application, the adjudicating court or adjudicating courts shall locate any court records or documents necessary to conduct a hearing under this section.

(6) 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), 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.

(7) A copy of the application must 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 attorney general or prosecuting attorney wishes to contest an application, the attorney general or prosecuting attorney must do so not later than 35 days after service. 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, 1985 PA 87, MCL 780.796a. The notice must 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, 1927 PA 175, MCL 770.9a.

(b) “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.

(c) “Victim” means that term as defined in section 31 of the William Van Regenmorter crime victim’s rights act, 1985 PA 87, MCL 780.781.

(8) Upon the hearing of the application, the court may require the filing of affidavits and the taking of proofs as it considers proper.

(9) Except as provided in this subsection and subsection (10), if the court determines that the circumstances and behavior of the applicant from the date of the applicant’s adjudication to the filing of the application warrant setting aside the 1 adjudication for a juvenile offense that would be a felony if committed by an adult and not more than 2 adjudications for a juvenile offense that would be a misdemeanor if committed by an adult or if there is no adjudication for a felony if committed by an adult, not more than 3 adjudications for an offense that would be a misdemeanor if committed by an adult and that setting aside the adjudication or adjudications is consistent with the public welfare, the court may enter an order setting aside the adjudication. If the applicant submits to the court a certificate of completion from the Michigan youth challeNGe academy showing that the applicant has completed that program, the court shall determine that the applicant’s circumstances and behavior warrant setting aside the adjudication. If the court also determines that setting aside the adjudication or adjudications is consistent with the public welfare, the court may enter an order setting aside the adjudication as provided in this subsection. Except as provided in subsection (10), the setting aside of an adjudication under this section is a privilege and conditional, and is not a right.

(10) If the person files an application with the court and he or she otherwise meets all the requirements, notwithstanding subsection (9), the court shall set aside the adjudication of a person as follows:

(a) The person 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, 1931 PA 328, MCL 750.413.

(b) The person was adjudicated for an offense that if committed by an adult would be a violation or an attempted 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, and he or she committed the offense as a direct result of his or her being a victim of a human trafficking violation.

(11) Upon the entry of an order under this section, the applicant is considered not to have been previously adjudicated, except as provided in subsection (13) 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.

(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 under this section.

(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.

(13) The department of state police shall retain a nonpublic record of the order setting aside an adjudication for a juvenile offense that would be a felony if committed by an adult and not more than 2 juvenile offenses that would be misdemeanors if committed by an adult or if there is no adjudication for a felony if committed by an adult, not more than 3 adjudications for an offense that would be a misdemeanor if committed by an adult 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), this nonpublic record must 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.

(14) A copy of the nonpublic record created under subsection (13) must 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, 1976 PA 442, MCL 15.234.

(15) The nonpublic record maintained under subsection (13) is exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.

(16) Except as provided in subsection (13), 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.

(17) An order setting aside an adjudication for a traffic offense under this section must not require that the conviction be removed or expunged from the applicant’s driving record maintained by the secretary of state as required under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923.

Sec. 18t. (1) Except as otherwise provided in this section, beginning 2 years after the effective date of the amendatory act that added this section, an adjudication is set aside under this section without filing an application under section 18e of this chapter 2 years after the termination of court supervision or when the person becomes 18 years of age, whichever is later.

(2) Subsection (1) does not apply to an adjudication for an offense described under section 2(a)(1)(A) to (I) of this chapter, to a conviction or adjudication as described under section 18e(2) of this chapter, or to a conviction or adjudication for a violation of section 81a, 82, 90, 136b, 321, 322, 397, 411h, 411i, 520d, 520g, or 543k of the Michigan penal code, 1931 PA 328, MCL 750.81a, 750.82, 750.90, 750.136b, 750.321, 750.322, 750.397, 750.411h, 750.411i, 750.520d, 750.520g, and 750.543k.

(3) The attorney general and the prosecuting attorney who prosecuted the offense shall not contest the setting aside of an adjudication without an application under this section.

(4) Upon the setting aside of an adjudication under this section, the person is considered not to have been previously adjudicated, except as provided in subsection (6) and as follows:

(a) The person 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 person to rely upon the adjudication to bar subsequent proceedings for the same offense.

(d) This section does not create a right to commence an action for damages for detention under the disposition that the person served before the adjudication is set aside under this section.

(e) Research on the utilization and effectiveness of the set-aside process.

(5) Upon the setting aside of an adjudication under this section, the court shall notify the arresting agency and the department of state police that the adjudication has been set aside.

(6) The department of state police shall retain a nonpublic record of an adjudication for a juvenile offense that is set aside under this section and of the record of the arrest, fingerprints, adjudication, and disposition of the person in the case. Except as provided in subsection (7), this nonpublic record must 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) 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.

(d) Consideration by the governor, if a person whose adjudication has been set aside under this section applies for a pardon for another offense.

(7) A copy of the nonpublic record created under subsection (6) must 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, 1976 PA 442, MCL 15.234.

(8) The nonpublic record maintained under subsection (6) is exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.

(9) Except as provided in subsection (6), a person, other than the person whose adjudication is set aside under this section or a victim, who knows or should have known that an adjudication was set aside under this section, and who divulges, uses, or publishes information concerning an adjudication set aside under this section is guilty of a misdemeanor. As used in this subsection, “victim” means any individual who suffered direct or threatened physical, financial, or emotional harm as the result of the offense that was committed by the person whose adjudication is set aside under this section.

(10) An adjudication set aside for a traffic offense under this section must not be removed or expunged from the driving record of the person whose adjudication has been set aside maintained by the secretary of state as required under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923.

(11) If the governor determines that the process for setting aside an adjudication without an application under this section cannot be implemented by the date required under subsection (1) because of technological limitations, the governor may issue a directive delaying the implementation of this section for not more than 180 days. The attorney general, the state court administrator, or the director of the department of state police may recommend a delay of implementation to the governor under this subsection.

Enacting section 1. This amendatory act takes effect 180 days after the date it is enacted into law.

Secretary of the Senate

Clerk of the House of Representatives

Approved___________________________________________

____________________________________________________

Governor