HB-4219, As Passed Senate, May 16, 2017

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 4219

 

 

February 15, 2017, Introduced by Rep. Kahle and referred to the Committee on Law and Justice.

 

     A bill to amend 1931 PA 328, entitled

 

"The Michigan penal code,"

 

by amending section 451c (MCL 750.451c), as added by 2014 PA 334.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 451c. (1) This section applies only if the violation

 

described in subsection (2) was committed as a direct result of the

 

individual being a victim of a human trafficking violation.

 

     (2) When an individual who has not been convicted previously

 

of a violation of section 448, 449, 450, or 462 or a local

 

ordinance substantially corresponding to section 448, 449, 450, or

 

462 pleads guilty to, or is found guilty of, a violation of section

 

448, 449, 450, or 462 or a local ordinance substantially

 

corresponding to section 448, 449, 450, or 462, the court, without

 

entering a judgment of guilt and with the consent of the accused

 

and of the prosecuting attorney, may defer further proceedings and

House Bill No. 4219 as amended March 21, 2017

place the accused on probation as provided in this section.

 

However, before deferring proceedings under this subsection, the

 

court [shall] shall do all of the following:

 

     (a) 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 a violation of

 

section 448, 449, 450, or 462 or a local ordinance substantially

 

corresponding to section 448, 449, 450, or 462 or has previously

 

availed himself or herself of this section.

 

     (b) If the search of the records under subdivision (a) 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.

 

     (c) Determine determine whether the accused has met the

 

conditions described in subsection (1) as follows:

 

     (a) (i) The accused bears the burden of proving to the court

 

by a preponderance of the evidence that the violation was a direct

 

result of his or her being a victim of human trafficking.

 

     (b) (ii) To prove that he or she is a victim of human

 

trafficking, the accused shall state under oath that he or she

 

meets the conditions described in subsection (1) with facts

 

supporting his or her claim that the violation was a direct result

 

of being a victim of human trafficking.

 

     (3) 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.

     (4) An order of probation entered under subsection (2) 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 600.1084. The court may

 

order the defendant to be imprisoned for not more than 93 days at a

 

time or at intervals, which may be consecutive or nonconsecutive

 

and within the period of probation, as the court determines.

 

However, the period of imprisonment shall must not exceed the

 

maximum period of imprisonment authorized for the offense if the

 

maximum period is less than 93 days. 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.

 

     (5) 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 a violation of section 448, 449, 450,

 

or 462 or a local ordinance substantially corresponding to section

 

448, 449, 450, or 462 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.

 

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

 

have no contact with a named individual.

House Bill No. 4219 as amended March 21, 2017

     (6) 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 must 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. [There shall

 

be only 1 discharge and dismissal under this section with respect

 

to any individual.]

 

     (7) All court proceedings under this section shall must be

 

open to the public. Except as provided in subsection (8), if the

 

record of proceedings as to the defendant is deferred under this

 

section, the record of proceedings during the period of deferral

 

shall must be closed to public inspection.

 

     (8) Unless the court enters a judgment of guilt under this

 

section, the department of state police shall retain a nonpublic

 

record of the arrest, court proceedings, and disposition of the

 

criminal charge under this section. However, the nonpublic record

 

shall must be open to the following individuals and entities for

 

the purposes noted:

 

     (a) The courts of this state, law enforcement personnel, the

 

department of corrections, and prosecuting attorneys for use only

 

in the performance of their duties or to determine whether an

 

employee of the court, law enforcement agency, department of

 

corrections, or prosecutor's office has violated his or her

 

conditions of employment or whether an applicant meets criteria for

 

employment with the court, law enforcement agency, department of

 

corrections, or prosecutor's office.

     (b) The courts of this state, law enforcement personnel, and

 

prosecuting Prosecuting attorneys for showing that a defendant in a

 

criminal action for a violation of section 448, 449, 450, or 462 or

 

a local ordinance substantially corresponding to section 448, 449,

 

450, or 462 has already once availed himself or herself of this

 

section.informing consent under subsection (2).

 

     (c) The department of health and human services for enforcing

 

child protection laws and vulnerable adult protection laws or

 

ascertaining the preemployment criminal history of any individual

 

who will be engaged in the enforcement of child protection laws or

 

vulnerable adult protection laws.

 

     (9) As used in this section, "human trafficking violation"

 

means a violation of chapter LXVIIA.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.