HB-5383, As Passed House, June 3, 2014

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 5383

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1927 PA 175, entitled

 

"The code of criminal procedure,"

 

by amending section 6b of chapter V (MCL 765.6b), as amended by

 

2013 PA 54.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

CHAPTER V

 

     Sec. 6b. (1) A judge or district court magistrate may release

 

under this section a defendant under this subsection subject to

 

conditions reasonably necessary for the protection of 1 or more

 

named persons. If a judge or district court magistrate releases

 

under this section a defendant under this subsection subject to

 

protective conditions, the judge or district court magistrate shall

 

make a finding of the need for protective conditions and inform the

 

defendant on the record, either orally or by a writing that is

 

personally delivered to the defendant, of the specific conditions


 

imposed and that if the defendant violates a condition of release,

 

he or she will be subject to arrest without a warrant and may have

 

his or her bail forfeited or revoked and new conditions of release

 

imposed, in addition to the penalty provided under section 3f of

 

chapter XI and any other penalties that may be imposed if the

 

defendant is found in contempt of court.

 

     (2) An order or amended order issued under subsection (1)

 

shall contain all of the following:

 

     (a) A statement of the defendant's full name.

 

     (b) A statement of the defendant's height, weight, race, sex,

 

date of birth, hair color, eye color, and any other identifying

 

information the judge or district court magistrate considers

 

appropriate.

 

     (c) A statement of the date the conditions become effective.

 

     (d) A statement of the date on which the order will expire.

 

     (e) A statement of the conditions imposed.

 

     (3) An order or amended order issued under this subsection and

 

subsection (1) may impose a condition that the defendant not

 

purchase or possess a firearm. However, if the court orders the

 

defendant to carry or wear an electronic monitoring device as a

 

condition of release as described in subsection (6), the court

 

shall also impose a condition that the defendant not purchase or

 

possess a firearm.

 

     (4) The judge or district court magistrate shall immediately

 

direct a law enforcement agency within the jurisdiction of the

 

court, in writing , to enter that an order or amended order issued

 

under subsection (1) or subsections (1) and (3) be issued into the


 

law enforcement information network as provided by the C.J.I.S.

 

policy council act, 1974 PA 163, MCL 28.211 to 28.215. LEIN. The

 

order shall be entered into the LEIN either by the issuing court or

 

by a law enforcement agency within the jurisdiction of the court.

 

If the order or amended order is rescinded, the judge or district

 

court magistrate shall immediately order the issuing court or law

 

enforcement agency to remove the order or amended order from the

 

law enforcement information network.LEIN.

 

     (5) A The issuing court or a law enforcement agency within the

 

jurisdiction of the court shall immediately enter an order or

 

amended order into the law enforcement information network as

 

provided by the C.J.I.S. policy council act, 1974 PA 163, MCL

 

28.211 to 28.215, LEIN or shall remove the order or amended order

 

from the law enforcement information network upon expiration of the

 

order or as directed by the court under subsection (4).

 

     (6) If a defendant who is charged with a crime involving

 

domestic violence, or any other assaultive crime, is released under

 

this section, subsection and subsection (1), the judge or district

 

court magistrate may order the defendant to wear an electronic

 

monitoring device as a condition of release. With the informed

 

consent of the victim, the court may also order the defendant to

 

provide the victim of the charged crime with an electronic receptor

 

device capable of receiving the global positioning system

 

information from the electronic monitoring device worn by the

 

defendant that notifies the victim if the defendant is located

 

within a proximity to the victim as determined by the judge or

 

district court magistrate in consultation with the victim. The


 

victim shall also be furnished with a telephone contact with the

 

local law enforcement agency to request immediate assistance if the

 

defendant is located within that proximity to the victim. In

 

addition, the victim may provide the court with a list of areas

 

from which he or she would like the defendant excluded. The court

 

shall consider the victim's request and shall determine which areas

 

the defendant shall be prohibited from accessing. The court shall

 

instruct the entity monitoring the defendant's position to notify

 

the proper authorities if the defendant violates the order. In

 

determining whether to order a defendant to wear an electronic

 

monitoring device, the court shall consider the likelihood that the

 

defendant's participation in electronic monitoring will deter the

 

defendant from seeking to kill, physically injure, stalk, or

 

otherwise threaten the victim prior to trial. The victim may

 

request the court to terminate the victim's participation in the

 

monitoring of the defendant at any time. The court shall not impose

 

sanctions on the victim for refusing to participate in monitoring

 

under this subsection. A defendant described in this subsection

 

shall only be released under this section if he or she agrees to

 

pay the cost of the device and any monitoring as a condition of

 

release or to perform community service work in lieu of paying that

 

cost. An electronic monitoring device ordered to be worn under this

 

section subsection shall provide reliable notification of removal

 

or tampering. As used in this subsection:

 

     (a) "Assaultive crime" means that term as defined in section

 

9a of chapter X.

 

     (b) "Domestic violence" means that term as defined in section


 

1 of 1978 PA 389, MCL 400.1501.

 

     (c) "Electronic monitoring device" includes any electronic

 

device or instrument that is used to track the location of an

 

individual or to monitor an individual's blood alcohol content, but

 

does not include any technology that is implanted or violates the

 

corporeal body of the individual.

 

     (d) "Informed consent" means that the victim was given

 

information concerning all of the following before consenting to

 

participate in electronic monitoring:

 

     (i) The victim's right to refuse to participate in that

 

monitoring and the process for requesting the court to terminate

 

the victim's participation after it has been ordered.

 

     (ii) The manner in which the monitoring technology functions

 

and the risks and limitations of that technology, and the extent to

 

which the system will track and record the victim's location and

 

movements.

 

     (iii) The boundaries imposed on the defendant during the

 

monitoring program.

 

     (iv) Sanctions that the court may impose on the defendant for

 

violating an order issued under this subsection.

 

     (v) The procedure that the victim is to follow if the

 

defendant violates an order issued under this subsection or if

 

monitoring equipment fails to operate properly.

 

     (vi) Identification of support services available to assist the

 

victim to develop a safety plan to use if the court's order issued

 

under this subsection is violated or if the monitoring equipment

 

fails to operate properly.


 

     (vii) Identification of community services available to assist

 

the victim in obtaining shelter, counseling, education, child care,

 

legal representation, and other help in addressing the consequences

 

and effects of domestic violence.

 

     (viii) The nonconfidential nature of the victim's communications

 

with the court concerning electronic monitoring and the

 

restrictions to be imposed upon the defendant's movements.

 

     (7) A judge or district court magistrate may release under

 

this subsection a defendant subject to conditions reasonably

 

necessary for the protection of the public if the defendant has

 

submitted to a preliminary roadside analysis that reveals the

 

presence of a controlled substance or other intoxicating substance.

 

The judge or district court magistrate shall inform the defendant

 

on the record, either orally or by a writing that is personally

 

delivered to the defendant, of all of the following:

 

     (a) That if the defendant is released under this subsection,

 

he or she shall not operate a motor vehicle under the influence of

 

alcoholic liquor, a controlled substance, or another intoxicating

 

substance, or any combination of them, as a condition of release.

 

     (b) That if the defendant violates the condition of release

 

under subdivision (a), he or she will be subject to arrest without

 

a warrant, shall have his or her bail forfeited or revoked, and

 

shall not be released from custody prior to arraignment.

 

     (8) An order issued under subsection (7) shall be entered into

 

the LEIN either by the issuing court or by a law enforcement agency

 

within the jurisdiction of the court.

 

     (9) The court or a law enforcement agency within the


House Bill No. 5383 (H-2) as amended June 3, 2014

 

jurisdiction of the court shall immediately enter an order or

 

amended order into LEIN. If the order or amended order is

 

rescinded, the court or law enforcement agency shall immediately

 

remove the order or amended order from LEIN upon expiration of the

 

order under subsection (8).

 

     (10) (7) This section does not limit the authority of judges

 

or district court magistrates to impose protective or other release

 

conditions under other applicable statutes or court rules,

 

including ordering a defendant to wear an electronic monitoring

 

device.

 

     (11) As used in this section, "LEIN" means the law enforcement

 

information network regulated under the C.J.I.S. policy act, 1974

 

PA 163, MCL 28.211 to 28.215, or by the department of state police.

[Enacting section 1. This amendatory act takes effect 90 days after the date it is enacted into law.]

 

     Enacting section [2]. This amendatory act does not take

 

effect unless House Bill No. 5385 of the 97th Legislature is

 

enacted into law.