HB-5968, As Passed House, June 22, 2006

SUBSTITUTE FOR

HOUSE BILL NO. 5968

     A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

by amending section 4a of chapter IX (MCL 769.4a), as amended by

2004 PA 220.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER IX

     Sec. 4a. (1) When an individual who has not been convicted

previously of  a violation of section 81 or 81a of the Michigan

penal code, 1931 PA 328, MCL 750.81 and 750.81a, or a violation of

a local ordinance substantially corresponding to section 81 of that

act ,  an assaultive crime pleads guilty to, or is found guilty of,

a violation of section 81 or 81a of the Michigan penal code, 1931

PA 328, MCL 750.81 and 750.81a, and the victim of the assault is

the offender's spouse or former spouse, an individual who has had a

child in common with the offender, an individual who has or has had

a dating relationship with the offender, or an individual residing

or having resided in the same household as the offender, the court,

without entering a judgment of guilt and with the consent of the

accused and of the prosecuting attorney in consultation with the

victim, 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 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  under section 81 or 81a of the Michigan

penal code, 1931 PA 328, MCL 750.81 and 750.81a, or under a local

ordinance substantially corresponding to section 81 of that act ,

of an assaultive crime or has previously availed himself or herself

of this section. If the search of the records reveals an arrest for

a violation of section 81 or 81a of the Michigan penal code, 1931

PA 328, MCL 750.81 and 750.81a, or a local ordinance substantially

corresponding to section 81 of that act  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.  As used

in this subsection, "dating relationship" means frequent, intimate

associations primarily characterized by the expectation of

affectional involvement. This term does not include a casual

relationship or an ordinary fraternization between 2 individuals in

a business or social context.

     (2) 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.

     (3) An order of probation entered under subsection (1) may

require  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

600.1082. The court may order the defendant to be imprisoned for

not more than 12 months at the time or 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 12 months. 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.

     (4) 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 an assaultive crime during the period

of probation.  As used in this subdivision, "assaultive crime"

means 1 or more of the following:

     (i) That term as defined in section 9a of chapter X.

     (ii) A violation of chapter XI of the Michigan penal code, 1931

PA 328, MCL 750.81 to 750.90g.

     (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.

     (5) 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.

     (6) There may be only 1 discharge and dismissal under this

section with respect to any individual. The department of state

police shall retain a nonpublic record of an arrest and discharge

or  and dismissal under this section. This record shall be

furnished to a court or police agency upon request pursuant to

subsection (1) or to an office of prosecuting attorney for the

purpose of showing that a defendant in a criminal action under

section 81 or 81a of the Michigan penal code, 1931 PA 328, MCL

750.81 and 750.81a, or a local ordinance substantially

corresponding to section 81 of that act has already once availed

himself or herself of this section or for the purpose of

determining whether the defendant in a criminal action is eligible

for discharge and dismissal of proceedings by a drug treatment

court under section 1076(5) of the revised judicature act of 1961,

1961 PA 236, MCL 600.1076.

     (7) As used in this section:

     (a) "Assaultive crime" means 1 or more of the following:

     (i) That term as defined in section 9a of chapter X.

     (ii) A violation of chapter XI of the Michigan penal code, 1931

PA 328, MCL 750.81 to 750.90g.

     (iii) A violation of a local ordinance substantially

corresponding to a violation described in subparagraph (i) or (ii).

     (b) "Dating relationship" means frequent, intimate

associations primarily characterized by the expectation of

affectional involvement. This term does not include a casual

relationship or an ordinary fraternization between 2 individuals in

a business or social context.