November 19, 2008, Introduced by Reps. Jackson, Meadows, Warren, Meisner, Alma Smith, Condino, Young, Garfield and Gaffney and referred to the Committee on Judiciary.
A bill to amend 1965 PA 213, entitled
"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 sections 2 and 3 (MCL 780.622 and 780.623), as amended
by 1994 PA 294.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
2. (1) Upon the entry of an order pursuant to under
section 1, the applicant, for purposes of the law, shall be
considered not to have been previously convicted, except as
provided in this section and section 3.
(2) The applicant is not entitled to the remission of any
fine, costs, or other money paid as a consequence of a conviction
that is set aside.
(3)
If the conviction set aside pursuant to under this act is
for a listed offense as defined in section 2 of the sex offenders
registration act, 1994 PA 295, MCL 28.722, the applicant is not
considered to have been convicted of that offense for purposes of
the sex offenders registration act, 1994 PA 295, MCL 28.721 to
28.736.
(4) This act does not affect the right of the applicant to
rely upon the conviction to bar subsequent proceedings for the same
offense.
(5) This act does not affect the right of a victim of a crime
to prosecute or defend a civil action for damages.
(6) This act does not create a right to commence an action for
damages for incarceration under the sentence that the applicant
served
before the conviction is set aside pursuant to under this
act.
Sec.
3. (1) Upon the entry of an order pursuant to under
section 1, the court shall send a copy of the order to the
arresting agency and the department of state police.
(2) The department of state police shall retain a nonpublic
record of the order setting aside a conviction and of the record of
the arrest, fingerprints, conviction, and sentence of the applicant
in the case to which the order applies. Except as provided in
subsection (3), 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) To show that a person who has filed an application to set
aside a conviction has previously had a conviction set aside
pursuant to this act.
(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 conviction
has been set aside applies for a pardon for another offense.
(e) Consideration by a law enforcement agency if a person
whose conviction has been set aside applies for employment with the
law enforcement agency.
(f)
Consideration by a court, law enforcement agency,
prosecuting
attorney, or the attorney general in determining
whether
an individual required to be registered under the sex
offenders
registration act has violated that act, or for use in a
prosecution
for violating that act.
(3) A copy of the nonpublic record created under subsection
(2) shall be provided to the person whose conviction is set aside
under this act 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.
(4) The nonpublic record maintained under subsection (2) is
exempt
from disclosure under the freedom of information act, Act
No.
442 of the Public Acts of 1976, being sections 15.231 to 15.246
of
the Michigan Compiled Laws 1976 PA 442, MCL 15.231 to 15.246.
(5) Except as provided in subsection (2), a person, other than
the applicant, who knows or should have known that a conviction was
set aside under this section and who divulges, uses, or publishes
information concerning a conviction set aside under this section is
guilty of a misdemeanor punishable by imprisonment for not more
than 90 days or a fine of not more than $500.00, or both.
Enacting section 1. This amendatory act takes effect January
1, 2009.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 6698(request no.
03677'07 a) of the 94th Legislature is enacted into law.