HB-4969, As Passed House, December 12, 2013HB-4969, As Passed Senate, December 12, 2013

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4969

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending section 7411 (MCL 333.7411), as amended by 2012 PA 549.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 7411. (1) When an individual who has not previously been

convicted of an offense under this article or under any statute of

the United States or of any state relating to narcotic drugs, coca

leaves, marihuana, or stimulant, depressant, or hallucinogenic

drugs, pleads guilty to or is found guilty of possession of a

controlled substance under section 7403(2)(a)(v), 7403(2)(b), (c),

or (d), or of use of a controlled substance under section 7404, or

possession or use of an imitation controlled substance under

section 7341 for a second time, the court, without entering a

judgment of guilt with the consent of the accused, may defer

further proceedings and place the individual on probation upon

terms and conditions that shall include, but are not limited to,

payment of a probation supervision fee as prescribed in section 3c

of chapter XI of the code of criminal procedure, 1927 PA 175, MCL

771.3c. The terms and conditions of probation may include

participation in a drug treatment court under chapter 10A of the

revised judicature act of 1961, 1961 PA 236, MCL 600.1060 to

600.1084. Upon violation of a term or condition, the court may

enter an adjudication of guilt and proceed as otherwise provided.

Upon fulfillment of the terms and conditions, the court shall

discharge the individual and dismiss the proceedings. Discharge and

dismissal under this section shall be without adjudication of guilt

and, except as otherwise provided by law, is not a conviction for

purposes of this section or for purposes of disqualifications or

disabilities imposed by law upon conviction of a crime, including

the additional penalties imposed for second or subsequent

convictions under section 7413. There may be only 1 discharge and

dismissal under this section as to an individual.

(2) All court proceedings under this section shall be open to

the public. Except as provided in subsection (3), if the record of

proceedings as to the defendant is deferred under this section, the

record of proceedings during the period of deferral shall be closed

to public inspection.

(3) 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 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 attorneys for the purpose of showing either of the

following:

(i) That a defendant has already once availed himself or

herself of this section.

(ii) 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.

~~(c) The department of corrections for ascertaining~~

~~preemployment criminal history or to determine whether a department~~

~~of corrections employee has violated conditions of employment.~~

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.

(4) For purposes of this section, a person subjected to a

civil fine for a first violation of section 7341(4) shall not be

considered to have previously been convicted of an offense under

this article.

(5) Except as provided in subsection (6), if an individual is

convicted of a violation of this article, other than a violation of

section 7401(2)(a)(i) to (iv) or section 7403(2)(a)(i) to (iv), the

court as part of the sentence, during the period of confinement or

the period of probation, or both, may require the individual to

attend a course of instruction or rehabilitation program approved

by the department on the medical, psychological, and social effects

of the misuse of drugs. The court may order the individual to pay a

fee, as approved by the director, for the instruction or program.

Failure to complete the instruction or program shall be considered

a violation of the terms of probation.

(6) If an individual is convicted of a second violation of

section 7341(4), before imposing sentence under subsection (1), the

court shall order the person to undergo screening and assessment by

a person or agency designated by the office of substance abuse

services, to determine whether the person is likely to benefit from

rehabilitative services, including alcohol or drug education and

alcohol or drug treatment programs. As part of the sentence imposed

under subsection (1), the court may order the person to participate

in and successfully complete 1 or more appropriate rehabilitative

programs. The person shall pay for the costs of the screening,

assessment, and rehabilitative services. Failure to complete a

program shall be considered a violation of the terms of the

probation.