House Introduced Bill 5939

HOUSE BILL No. 5939


     September 26, 2000, Introduced by Rep. Patterson and referred to the Committee on Criminal Law and Corrections.


        A bill to amend 1925 PA 289, entitled

   "An act to create a bureau of criminal identification and records
   within the department of state police; to require peace officers,
   persons in charge of certain institutions, and others to make
   reports respecting juvenile offenses, crimes, and criminals to
   the state police; to require the fingerprinting of an accused by
   certain persons; and to provide penalties for violation of this
   act,"

   by amending the title and sections 1, 1a, 2, 3, and 3a (MCL

   28.241, 28.241a, 28.242, 28.243, and 28.243a), the title and sec-

   tions 1 and 2 as amended by 1988 PA 40, section 1a as amended by

   1996 PA 259, section 3 as amended by 1999 PA 266, and section 3a

   as amended by 1986 PA 231, and by adding section 8.

               THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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                                    TITLE

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           An act to create a  bureau of  criminal identification and

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      records DIVISION within the department of state police; to

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      require peace officers, persons in charge of certain


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      institutions, and others to make reports respecting juvenile

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      offenses, crimes, and criminals to the state police; to require

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      the fingerprinting of an accused by certain persons; and to pro-

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      vide penalties AND REMEDIES for A violation of this act.

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           Sec. 1.  The  central records division of the  department of

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      state police  shall be  IS responsible for criminal and juvenile

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      identification and records.  The  division  DEPARTMENT shall be

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      supplied with the necessary apparatus and materials for collect-

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      ing, filing, and preserving criminal and juvenile records filed

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      with the  division  DEPARTMENT.

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           Sec. 1a.  As used in this act:

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           (A) "ARREST CARD" MEANS A PAPER FORM OR AN ELECTRONIC FORMAT

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      PRESCRIBED BY THE DEPARTMENT THAT FACILITATES COLLECTING AND COM-

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      PILING CRIMINAL AND JUVENILE ARREST HISTORY RECORD INFORMATION,

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      INCLUDING FINGERPRINT IMAGES.

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           (B)  (a)  "Commanding officer" means the department of state

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      police employee in charge of the  central records division 

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      CRIMINAL JUSTICE INFORMATION CENTER OR ITS SUCCESSOR ADMINISTRA-

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      TIVE UNIT.

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           (C)  (b)  "Criminal history record information" means name;

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      date of birth; fingerprints; photographs, if available; personal

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      descriptions  ,  including  physical measurements, 
   identifying

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      marks, scars, amputations, and tattoos; aliases and prior names;

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      social security  and  NUMBER, driver's license  numbers 
   NUMBER

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      and other identifying numbers; and information on misdemeanor

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      ARRESTS AND convictions and felony arrests and convictions.





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           (D)  (c) "Division  "DEPARTMENT" means the  central records

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      division of the  department of state police.

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           (E)  (d)  "Felony" means a violation of a penal law of this

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      state for which the offender may be punished by imprisonment for

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      more than 1 year or an offense expressly designated by law to be

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      a felony.

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           (F) "FINGERPRINT IMPRESSIONS" MEANS FINGERPRINT IMAGES

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      RECORDED IN A MANNER PRESCRIBED BY THE DEPARTMENT.

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           (G)  (e)  "Juvenile history record information" means name;

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      date of birth; fingerprints; photographs, if available; personal

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      descriptions  ,  including  physical measurements 
   identifying

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      marks, scars, amputations, and tattoos; aliases and prior names;

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      social security  and  NUMBER, driver's license  numbers 
   NUMBER

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      and other identifying numbers; and information on juvenile

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      offense arrests and adjudications OR CONVICTIONS.

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           (H)  (f)  "Juvenile offense" means an offense committed by a

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      juvenile that, if committed by an adult, would be a  violation or

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      an attempted violation of section 72, 83, 84, 86, 88, 89, 91,

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      110, 110a(2), 186a, 316, 317, 349, 360, 413, 520b, 520c, 520d,

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      520g, 529, 529a, 530, or 531 of the Michigan penal code, Act

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      No. 328 of the Public Acts of 1931, being sections 750.72,

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      750.83, 750.84, 750.86, 750.88, 750.89, 750.91, 750.110,

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      750.110a, 750.186a, 750.316, 750.317, 750.349, 750.360, 750.413,

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      750.520b, 750.520c, 750.520d, 750.520g, 750.529, 750.529a,

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      750.530, and 750.531 of the Michigan Compiled Laws, or

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      section 7401(2)(a)(i) or 7403(2)(a)(i) of the public health code,

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      Act No. 368 of the Public Acts of 1978, being sections 333.7401



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      and 333.7403 of the Michigan Compiled Laws  FELONY OR A

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      MISDEMEANOR.

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           (I) "LAW ENFORCEMENT AGENCY" MEANS THE POLICE DEPARTMENT OF

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      A CITY, TOWNSHIP, OR VILLAGE, THE SHERIFF'S DEPARTMENT OF A

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      COUNTY, THE DEPARTMENT, OR ANY OTHER GOVERNMENTAL LAW ENFORCEMENT

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      AGENCY OF THIS STATE.

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           (J)  (g)  "Misdemeanor" means either of the following:

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           (i) A violation of a penal law of this state that is not a

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      felony or a violation of an order, rule, or regulation of a state

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      agency that is punishable by imprisonment or a fine that is not a

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      civil fine.

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           (ii) A violation of a local ordinance that substantially

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      corresponds to state law AND THAT IS NOT A CIVIL INFRACTION.

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           Sec. 2.  (1) The commanding officer  of the division  shall

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      procure and file for purposes of criminal identification criminal

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      history record information on all persons who have been convicted

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      within  the  THIS state of EITHER a felony or a misdemeanor.  ,

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      or both.  The commanding officer  of the division  shall
   procure

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      and file for purposes of juvenile identification juvenile history

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      record information on all juveniles who have been adjudicated to

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      have committed a juvenile offense within  the  THIS state.

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           (2) The commanding officer shall provide all reporting offi-

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      cials with forms OR PRESCRIBE THE FORMAT, numerical identifiers,

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      and instructions which specify  in detail the nature of  the

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      information required, the time it is to be forwarded, the method

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      of classifying, and other matters to facilitate criminal and

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      juvenile history record information collection and compilation.



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           (3) The commanding officer shall file the fingerprint

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      impressions and photographs, if available, of all persons con-

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      fined in a prison or other state correctional facility.

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           (4) THE COMMANDING OFFICER SHALL PROVIDE ACCESS TO CRIMINAL

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      HISTORY RECORD INFORMATION AND JUVENILE HISTORY RECORD INFORMA-

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      TION, AS PRESCRIBED BY THE DEPARTMENT AND AS AUTHORIZED BY LAW.

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           (5) A COPY OF AN ARREST CARD SHALL BE FORWARDED TO THE FED-

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      ERAL BUREAU OF INVESTIGATION.

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           Sec. 3.  (1) Except as provided in subsection  (2)  (3),

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      immediately upon the arrest of a person for a felony or for a

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      misdemeanor violation of state law for which the maximum possible

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      penalty exceeds 92 days' imprisonment or a fine of $1,000.00, or

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      both, or for a juvenile offense, OTHER THAN A JUVENILE OFFENSE

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      FOR WHICH THE MAXIMUM POSSIBLE PENALTY DOES NOT EXCEED 92 DAYS'

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      IMPRISONMENT OR A FINE OF $1,000.00, OR BOTH, the arresting law

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      enforcement agency in this state shall take the person's finger-

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      prints in duplicate and forward the fingerprints to the depart-

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      ment within 72 hours after the arrest.  One set of fingerprints

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      shall be sent to the  division  DEPARTMENT on forms furnished by

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      OR IN A MANNER PRESCRIBED BY the  commanding officer  DEPARTMENT,

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      and 1 set of fingerprints shall be furnished to the director of

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      the federal bureau of investigation on forms furnished by OR IN A

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      MANNER PRESCRIBED BY the director.  A person's fingerprints are

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      not required to be taken and forwarded to the department under

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      this subsection solely because he or she has been arrested for a

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      violation of section 904(3)(a) of the Michigan vehicle code, 1949

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      PA 300, MCL 257.904. 



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           (2)  A law enforcement agency shall take a person's

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      fingerprints under this subsection if the person is arrested for

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      a misdemeanor violation of state law for which the maximum pen-

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      alty is 93 days if the fingerprints have not previously been

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      taken and forwarded to the department under subsection (1).  A

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      law enforcement agency shall take a person's fingerprints  under

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      this subsection  if the person is arrested for a violation of a

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      local ordinance for which the maximum possible penalty is 93

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      days' imprisonment and that substantially corresponds to a viola-

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      tion of state law that is a misdemeanor for which the maximum

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      possible term of imprisonment is 93 days.  If the person is con-

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      victed of any violation, the law enforcement agency shall take

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      the person's fingerprints before sentencing if not previously

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      taken.  The court shall forward to the law enforcement agency a

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      copy of the disposition of conviction, and the law enforcement

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      agency shall forward the person's fingerprints and the copy of

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      the disposition of conviction to the department within 72 hours

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      after receiving the disposition of conviction in the same manner

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      as provided in subsection (1).  If the person is convicted of

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      violating a local ordinance, the law enforcement agency shall

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      indicate on the form sent to the  division  DEPARTMENT the statu-

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      tory citation for the state law to which the local ordinance sub-

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      stantially corresponds.

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           (3) A person's fingerprints are not required to be taken and

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      forwarded to the department under this subsection solely because

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      he or she has been convicted of violating section 904(3)(a) of

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      the Michigan vehicle code, 1949 PA 300, MCL 257.904, or a local



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      ordinance substantially corresponding to section 904(3)(a) of the

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      Michigan vehicle code, 1949 PA 300, MCL 257.904.

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           (4)  (3)  The arresting law enforcement agency may take 1

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      set of fingerprints of a person who is arrested for a misdemeanor

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      punishable by imprisonment for not more than 92 days or a fine of

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      not more than $1,000.00, or both, and who fails to produce satis-

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      factory evidence of identification as required by section 1 of

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      1961 PA 44, MCL 780.581.  These fingerprints shall be forwarded

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      to the department immediately.  Upon completion of the identifi-

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      cation process by the department, the fingerprints shall be

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       returned to the arresting law enforcement agency  DESTROYED.

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           (5)  (4)  An arresting law enforcement agency in  the 
   THIS

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      state may take the person's fingerprints on forms furnished by

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      the commanding officer upon an arrest for a misdemeanor other

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      than a misdemeanor described in subsection (1), (2), or  (3) 

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      (4),  but  AND may  not  forward the fingerprints to the

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      department.  unless the person is convicted of a misdemeanor. 

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           (6) IF A COURT ORDERS THE TAKING OF FINGERPRINTS OF A PERSON

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      PURSUANT TO SECTION 11 OR 18 OF CHAPTER XIIA OF THE PROBATE CODE

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      OF 1939, 1939 PA 288, MCL 712A.11 AND 712A.18, OR SECTION 29 OF

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      CHAPTER IV OR SECTION 1 OF CHAPTER IX OF THE CODE OF CRIMINAL

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      PROCEDURE, 1927 PA 175, MCL 764.29 AND 769.1, THE LAW ENFORCEMENT

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      AGENCY SHALL FORWARD THE FINGERPRINTS AND ARREST CARD TO THE

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      DEPARTMENT.

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           (7)  (5)  If a petition is not authorized for a juvenile

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      accused of a juvenile offense or if a person arrested for having

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      committed a felony or a misdemeanor is released without a charge



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      made against him or her, the official taking or holding the

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      person's fingerprints  ,  AND arrest card  , and description
   

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      shall immediately  return this information to the person without

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      the necessity of a request.  If this information is not returned,

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      the person has the absolute right to demand and receive its

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      return at any time after the person's release and without need to

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      petition for court action  DESTROY THE FINGERPRINTS AND ARREST

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      CARD.  The law enforcement agency shall notify the  commanding

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      officer  DEPARTMENT in writing that  no  A petition was NOT

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      authorized against the juvenile or that  no  A charge was NOT

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      made against the arrested person if the juvenile's or arrested

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      person's fingerprints were forwarded to the department.

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           (8)  (6)  If a juvenile is adjudicated and found not to be

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      within the provisions of section 2(a)(1) of chapter XIIA of the

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      probate code of 1939, 1939 PA 288, MCL 712A.2, or if an accused

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      is found not guilty of the offense,  the arrest card,  the fin-

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      gerprints  ,  and  description  THE ARREST CARD shall be

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       returned to him or her  DESTROYED by the official holding this

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      information.  If for any reason the official holding the informa-

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      tion does not  return  DESTROY the information within 60 days of

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      the adjudication or the finding of not guilty, the accused or

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      juvenile has the right to obtain an order from the court having

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      jurisdiction over the case for the return of the information.  If

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      the order of return is not complied with, the accused or juvenile

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      has the right to petition the family division of circuit court of

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      the county where the original petition was filed or the circuit

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      court of the county where the original charge was made for a



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      preemptory writ of mandamus to require issuance of the order of

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      return.  Upon final disposition of the charge against the

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      accused, the clerk of the court entering the disposition shall

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      notify the  commanding officer  DEPARTMENT of any finding of not

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      guilty or not guilty by reason of insanity, dismissal, or nolle

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      prosequi, if it appears that the accused was initially  arrested 

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      FINGERPRINTED for a felony or a misdemeanor  punishable by

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      imprisonment for more than 92 days  or of any finding that a

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      juvenile alleged responsible for a juvenile offense is not within

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      the provisions of section 2(a)(1) of chapter XIIA of the probate

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      code of 1939, 1939 PA 288, MCL 712A.2.

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           (9)  (7)  Upon final disposition of the charge against the

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      accused, the clerk of the court entering the disposition shall

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      immediately advise the  commanding officer  DEPARTMENT of the

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      final disposition of the arrest for which the person was finger-

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      printed if a juvenile was adjudicated to have committed a juve-

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      nile offense or if the accused was convicted of a felony or a

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      misdemeanor.  With regard to any adjudication or conviction, the

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      clerk shall transmit to the commanding officer information as to

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      any adjudication or finding of guilty or guilty but mentally ill;

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      any plea of guilty, nolo contendere, or guilty but mentally ill;

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      the offense of which the accused was convicted; and a summary of

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      any deposition or sentence imposed.  The summary of the sentence

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      shall include any probationary term; any minimum, maximum, or

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      alternative term of imprisonment; the total of all fines, costs,

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      and restitution ordered; and any modification of sentence.  If





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      the sentence is imposed under any of the following sections, the

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      report shall so indicate:

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           (a) Section 7411 of the public health code, 1978 PA 368, MCL

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      333.7411.

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           (b) Sections 11 to 15 of chapter II of the code of criminal

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      procedure, 1927 PA 175, MCL 762.11 to 762.15.

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           (c) Section 4a of chapter IX of the code of criminal proce-

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      dure, 1927 PA 175, MCL 769.4a.

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           (d) Section 350a(4) of the Michigan penal code, 1931 PA 328,

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      MCL 750.350a.

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           (10)  (8)  The  commanding officer  DEPARTMENT shall
   record

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      the disposition of each charge and shall inform the director of

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      the federal bureau of investigation of the final disposition of

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      the felony or misdemeanor arrest.

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           (11)  (9)  The  commanding officer  DEPARTMENT shall
   compare

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      the fingerprints and description received with those already on

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      file and if the  commanding officer  DEPARTMENT finds that the

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      person arrested has a criminal record, the  commanding officer 

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      DEPARTMENT shall immediately inform the arresting agency and

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      prosecuting attorney of this fact.

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            (10) The provisions of this section requiring the return of

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      the fingerprints, arrest card, and description do not apply in

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      the following cases:

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           (a) The person arrested was charged with the commission or

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      attempted commission, or if the person arrested is a juvenile

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      alleged to have committed an offense that if committed by an

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      adult would constitute the commission or attempted commission, of



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      a crime with or against a child under 16 years of age or the

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      crime of criminal sexual conduct in any degree, rape, sodomy,

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      gross indecency, indecent liberties, or child sexually abusive

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      activities or materials.

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           (b) The person arrested has a prior conviction other than a

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      misdemeanor traffic offense, unless a judge of a court of record,

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      except the probate court, by express order entered on the record,

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      orders the return. 

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           (12) AFTER NOTICE TO THE PROSECUTING ATTORNEY AND AN OPPOR-

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      TUNITY TO BE HEARD, A JUDGE OF A COURT OF RECORD MAY BY AN

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      EXPRESS ORDER ENTERED ON THE RECORD, BEFORE ARRAIGNMENT IN CIR-

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      CUIT COURT, ORDER THE DESTRUCTION OF THE PERSON'S FINGERPRINTS.

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      THE PROVISIONS OF THIS SECTION REQUIRING THE DESTRUCTION OF FIN-

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      GERPRINTS AND ARREST CARDS DO NOT APPLY TO THE FOLLOWING:

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           (A) IF THE PERSON ARRESTED WAS CHARGED WITH THE COMMISSION

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      OR ATTEMPTED COMMISSION, OR, IF THE PERSON ARRESTED IS A JUVE-

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      NILE, WAS CHARGED WITH AN OFFENSE WHICH IF COMMITTED BY AN ADULT

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      WOULD CONSTITUTE THE COMMISSION OR ATTEMPTED COMMISSION, OF A

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      CRIME WITH OR AGAINST A CHILD UNDER 16 YEARS OF AGE OR THE CRIME

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      OF CRIMINAL SEXUAL CONDUCT IN ANY DEGREE, RAPE, SODOMY, GROSS

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      INDECENCY, INDECENT LIBERTIES, OR CHILD ABUSIVE COMMERCIAL

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      ACTIVITIES.

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           (B) IF THE PERSON ARRESTED HAS A PRIOR CONVICTION OTHER THAN

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      A MISDEMEANOR TRAFFIC OFFENSE.

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           (13) A FINGERPRINT OR ARREST CARD RECEIVED BY THE DEPARTMENT

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      AND REQUIRED TO BE RETURNED TO AN INDIVIDUAL BEFORE THE EFFECTIVE





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      DATE OF THE AMENDATORY ACT THAT ADDED THIS SUBSECTION SHALL BE

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      DESTROYED BY THE DEPARTMENT.

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           (14)  (11)  Subsection  (4)  (5) does not permit the
   for-

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      warding to the department of the fingerprints of a person accused

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      and convicted under the Michigan vehicle code, 1949 PA 300, MCL

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      257.1 to 257.923, or a local ordinance substantially correspond-

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      ing to a provision of that act, unless the offense is punishable

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      upon conviction by imprisonment for more than 92 days or is an

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      offense that is punishable by imprisonment for more than 92 days

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      upon a subsequent conviction.

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            (12) As used in this section:

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           (a) "Department" means the department of state police.

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           (b) "Law enforcement agency" means the police department of

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      a city, township, or village, the sheriff's department of a

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      county, the department, or any other governmental law enforcement

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      agency of this state. 

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           Sec. 3a.  (1)  Any person required to have his or her fin-

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      gerprints taken under section 3 who refuses to allow or resists

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      the taking of his or her fingerprints is guilty of a

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      misdemeanor.  Such person must be advised that his or her refusal

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      constitutes a misdemeanor.  A PERSON SHALL NOT REFUSE TO ALLOW OR

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      RESIST THE TAKING OF HIS OR HER FINGERPRINTS IF AUTHORIZED OR

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      REQUIRED UNDER THIS ACT.

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           (2) A PERSON WHO VIOLATES SUBSECTION (1) IS GUILTY OF A MIS-

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      DEMEANOR PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 92 DAYS OR

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      BY A FINE OF NOT MORE THAN $500.00, OR BOTH.





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           SEC. 8.  FINGERPRINT IMPRESSIONS OBTAINED UNDER A LAW OR

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      RULE FOR NONCRIMINAL IDENTIFICATION PURPOSES MAY BE USED FOR

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      CRIMINAL IDENTIFICATION PURPOSES UNLESS PROHIBITED BY LAW OR

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      RULE.

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           Enacting section 1.  This amendatory act does not take

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      effect unless Senate Bill No. ______ or House Bill No. 5946

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      (request no. 01197'99 a) of the 90th Legislature is enacted into

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      law.








































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