HOUSE BILL No. 5395

January 11, 2018, Introduced by Rep. Lucido and referred to the Committee on Judiciary.

A bill to amend 1925 PA 289, entitled

"An act to create and maintain a fingerprint identification and

criminal history records division 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 and remedies for a violation of this act,"

by amending sections 2, 3, and 4 (MCL 28.242, 28.243, and 28.244),

sections 2 and 3 as amended by 2012 PA 374 and section 4 as amended

by 1986 PA 231.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 2. (1) The commanding officer shall procure and file for

purposes of criminal identification criminal history record

information on all persons arrested within this state of either a

felony or a misdemeanor, or criminal contempt under section 2950 or

2950a of the revised judicature act of 1961, 1961 PA 236, MCL

600.2950 and 600.2950a, or criminal contempt for a violation of a

foreign protection order that satisfies the conditions for validity

provided in section 2950i of the revised judicature act of 1961,

1961 PA 236, MCL 600.2950i. The commanding officer shall procure

and file for purposes of juvenile identification juvenile history

record information on all juveniles who have been adjudicated to

have committed a juvenile offense within this state.

(2) The commanding officer shall provide all reporting

officials with forms or prescribe the format, numerical

identifiers, and instructions which specify the information

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

classifying, and other matters to facilitate criminal and juvenile

history record information collection and compilation.

(3) The commanding officer shall file the biometric data and

criminal history record information that are forwarded to the

department of all persons confined in a prison or other state

correctional facility.

(4) The commanding officer shall provide access to criminal

history record information and juvenile history record information,

as prescribed by the department and as authorized by law.

(5) A Subject to section 3(14), a copy of an arrest card ~~shall~~

must be forwarded to the ~~federal bureau of investigation.~~Federal

Bureau of Investigation.

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

arrest of a person for a felony or for a misdemeanor violation of

state law for which the maximum possible penalty exceeds 92 days'

imprisonment or a fine of $1,000.00, or both, or a misdemeanor

authorized for DNA collection under section 6(1)(b) of the DNA

identification profiling system act, 1990 PA 250, MCL 28.176, or

for criminal contempt under section 2950 or 2950a of the revised

judicature act of 1961, 1961 PA 236, MCL 600.2950 and 600.2950a, or

criminal contempt for a violation of a foreign protection order

that satisfies the conditions for validity provided in section

2950i of the revised judicature act of 1961, 1961 PA 236, MCL

600.2950i, or for a juvenile offense, other than a juvenile offense

for which the maximum possible penalty does not exceed 92 days'

imprisonment or a fine of $1,000.00, or both, or for a juvenile

offense that is a misdemeanor authorized for DNA collection under

section 6(1)(b) of the DNA identification profiling system act,

1990 PA 250, MCL 28.176, the arresting law enforcement agency in

this state shall collect the person's biometric data and forward

the biometric data to the department within 72 hours after the

arrest. The biometric data ~~shall~~ must be sent to the department on

forms furnished by or in a manner prescribed by the department, and

subject to subsection (14), the department shall forward the

biometric data to the director of the ~~federal bureau of~~

~~investigation~~ Federal Bureau of Investigation on forms furnished by

or in a manner prescribed by the director.

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

biometric data under this subsection if the person is arrested for

a misdemeanor violation of state law for which the maximum penalty

is 93 days or for criminal contempt under section 2950 or 2950a of

the revised judicature act of 1961, 1961 PA 236, MCL 600.2950 and

600.2950a, or criminal contempt for a violation of a foreign

protection order that satisfies the conditions for validity

provided in section 2950i of the revised judicature act of 1961,

1961 PA 236, MCL 600.2950i, if the biometric data have not

previously been collected and forwarded to the department under

subsection (1). A law enforcement agency shall collect a person's

biometric data under this subsection if the person is arrested for

a violation of a local ordinance for which the maximum possible

penalty is 93 days' imprisonment and that substantially corresponds

to a violation of state law that is a misdemeanor for which the

maximum possible term of imprisonment is 93 days. If the person is

convicted of any violation, the law enforcement agency shall

collect the person's biometric data before sentencing if not

previously collected. The court shall forward to the law

enforcement agency a copy of the disposition of conviction, and the

law enforcement agency shall forward the person's biometric data

and the copy of the disposition of conviction to the department

within 72 hours after receiving the disposition of conviction in

the same manner as provided in subsection (1). If the person is

convicted of violating a local ordinance, the law enforcement

agency shall indicate on the form sent to the department the

statutory citation for the state law to which the local ordinance

substantially corresponds.

(3) A person's biometric data are not required to be collected

and forwarded to the department under subsection (1) or (2) solely

because he or she has been arrested for violating section 904(3)(a)

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

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

Michigan vehicle code, 1949 PA 300, MCL 257.904.

(4) The arresting law enforcement agency may collect the

biometric data of a person who is arrested for a misdemeanor

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

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

satisfactory evidence of identification as required by section 1 of

1961 PA 44, MCL 780.581. These biometric data ~~shall~~ must be

forwarded to the department immediately. Upon completion of the

identification process by the department, the biometric data ~~shall~~

must be destroyed.

(5) An arresting law enforcement agency in this state may

collect the person's biometric data upon an arrest for a

misdemeanor other than a misdemeanor described in subsection (1),

(2), or (4), and may forward the biometric data to the department.

(6) If a court orders the collection of a person's biometric

data under section 11 or 18 of chapter XIIA of the probate code of

1939, 1939 PA 288, MCL 712A.11 and 712A.18, or section 29 of

chapter IV or section 1 of chapter IX of the code of criminal

procedure, 1927 PA 175, MCL 764.29 and 769.1, the law enforcement

agency shall forward the biometric data and arrest card to the

department.

(7) If a petition is not authorized for a juvenile accused of

a juvenile offense, if a person arrested for having committed an

offense for which biometric data were collected under this section

is released without a charge made against him or her, or if

criminal contempt proceedings are not brought or criminal charges

are not made against a person arrested for criminal contempt for a

personal protection order violation under section 2950 or 2950a of

the revised judicature act of 1961, 1961 PA 236, MCL 600.2950 and

600.2950a, or criminal contempt for a violation of a foreign

protection order that meets the requirements for validity under

section 2950i of the revised judicature act of 1961, 1961 PA 236,

MCL 600.2950i, the official taking or holding the person's

biometric data and arrest card shall immediately destroy the

biometric data and arrest card. The law enforcement agency shall

notify the department in a manner prescribed by the department that

a petition was not authorized against the juvenile or that a charge

was not made or that a criminal contempt proceeding was not brought

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

arrest card was forwarded to the department.

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

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

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

not guilty of an offense for which biometric data were collected

under this section, upon final disposition of the charge against

the accused or juvenile, the biometric data and arrest card ~~shall~~

must be destroyed by the official holding those items and the clerk

of the court entering the disposition shall notify the department

of any finding of not guilty or nolle prosequi, if it appears that

the biometric data of the accused were initially collected under

this section, or of any finding that a juvenile alleged responsible

for a juvenile offense is not within the provisions of section

2(a)(1) of chapter XIIA of the probate code of 1939, 1939 PA 288,

MCL 712A.2.

(9) Upon final disposition of the charge against the accused,

the clerk of the court entering the disposition shall immediately

advise the department of the final disposition of the arrest for

which the person's biometric data were collected if a juvenile was

adjudicated to have committed a juvenile offense or if the accused

was convicted of an offense for which the biometric data of the

accused were collected under this section or section 16a of chapter

IX of the code of criminal procedure, 1927 PA 175, MCL 769.16a.

With regard to any adjudication or conviction, the clerk shall

transmit to the department information as to any adjudication or

finding of guilty or guilty but mentally ill; any plea of guilty,

nolo contendere, or guilty but mentally ill; the offense of which

the accused was convicted; and a summary of any deposition or

sentence imposed. The summary of the sentence ~~shall~~ must include

any probationary term; any minimum, maximum, or alternative term of

imprisonment; the total of all fines, costs, and restitution

ordered; and any modification of sentence. If the sentence is

imposed under any of the following sections, the report ~~shall so~~

must indicate the section:

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

333.7411.

(b) Section 1076(4) of the revised judicature act of 1961,

1961 PA 236, MCL 600.1076.

procedure, 1927 PA 175, MCL 762.11 to 762.15.

(d) Section 4a of chapter IX of the code of criminal

procedure, 1927 PA 175, MCL 769.4a.

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

MCL 750.350a.

(f) Section ~~430(8)(a)~~ 430(9) of the Michigan penal code, 1931

PA 328, MCL 750.430.

(g) Section 1209(6) of the revised judicature act of 1961,

1961 PA 236, MCL 600.1209.

(10) The department shall record the disposition of each

charge and shall inform the director of the ~~federal bureau of~~

~~investigation~~ Federal Bureau of Investigation of the final

disposition of any arrest or offense for which a person's biometric

data were collected under this section or section 16a of chapter IX

of the code of criminal procedure, 1927 PA 175, MCL 769.16a.

(11) The department shall compare the biometric data received

with those already on file and if the department finds that the

person arrested has a criminal record, the department shall

immediately inform the arresting agency and prosecuting attorney of

this fact.

(12) The provisions of subsection (8) that require the

destruction of the biometric data and the arrest card do not apply

to a person who was arraigned for any of the following:

(a) The commission or attempted commission of a crime with or

against a child under 16 years of age.

(b) Rape.

(d) Sodomy.

(e) Gross indecency.

(f) Indecent liberties.

(g) Child abusive commercial activities.

(h) A person who has a prior conviction, other than a

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

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

the destruction or return of the biometric data and arrest card.

(i) A person arrested who is a juvenile charged with an

offense that would constitute the commission or attempted

commission of any of the crimes in this subsection if committed by

an adult.

(13) Subsection (5) does not permit the forwarding to the

department of the biometric data of a person accused and convicted

under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923,

or a local ordinance substantially corresponding to a provision of

that act, unless the offense is punishable upon conviction by

imprisonment for more than 92 days or is an offense that is

punishable by imprisonment for more than 92 days upon a subsequent

conviction.

(14) The biometric data collected under subsection (1) shall

not be forwarded to the Federal Bureau of Investigation for

inclusion in a federal database that utilizes facial recognition

technology.

Sec. 4. ~~The~~ Subject to section 3(14), the commanding officer

shall cooperate with the bureaus in other states and with the

~~federal bureau of investigation~~ Federal Bureau of Investigation and

the United States ~~justice department,~~ Department of Justice, to