SB-0845, As Passed House, November 29, 2012

SUBSTITUTE FOR

SENATE BILL NO. 845

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

2006 PA 663.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER IX

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

previously of 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 of an assaultive

crime or has previously availed himself or herself of this section.

If the search of the records 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.

(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

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.~~ 600.1084. 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.

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

receive counseling regarding his or her violent behavior.

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, but it is a prior

conviction in a prosecution under sections 81(3) and (4) and 81a(3)

of the Michigan penal code, 1931 PA 328, MCL 750.81 and 750.81a.

(6) There ~~may~~ shall 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

Senate Bill No. 845 (S-2) as amended November 28, 2012

discharge and dismissal under this section. This record shall be

furnished to a court or police agency upon request ~~pursuant to~~

under 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.~~750.90h.

(iii) A violation of a law of another state or of a local

ordinance of a political subdivision of this state or of another

state 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.

Enacting section 1. This amendatory act takes effect [April 1,