HOUSE BILL NO. 5957
A bill to amend 1965 PA 213, entitled
"An act to provide for setting aside the conviction in certain criminal cases; to provide for the effect of such action; to provide for the retention of certain nonpublic records and their use; to prescribe the powers and duties of certain public agencies and officers; and to prescribe penalties,"
by amending sections 1b, 1d, and 1e (MCL 780.621b, 780.621d, and 780.621e), section 1b as added by 2020 PA 188, section 1d as amended by 2021 PA 82, and section 1e as added by 2020 PA 192.
the people of the state of michigan enact:
Sec. 1b. (1) For purposes of a petition to set aside a conviction under section 1 or 1e, more than 1 felony offense or more than 1 misdemeanor offense conviction must be treated as a single felony or misdemeanor conviction if the felony or misdemeanor convictions were contemporaneous such that all of the felony or misdemeanor offenses conduct underlying the convictions occurred within 24 hours and arose from the same transaction, provided that none of those felony or misdemeanor offenses convictions constitute any of the following:
(a) An assaultive crime.
(b) A crime involving the use or possession of a dangerous weapon.
(c) A crime with a maximum penalty of 10 or more years' imprisonment.
(d) A conviction for a crime that if it had been obtained in this state would be for an assaultive crime.
(2) As used in this section, "dangerous weapon" means that term as defined in section 110a of the Michigan penal code, 1931 PA 328, MCL 750.110a.
Sec. 1d. (1) An application under section 1 to set aside more than 1 felony conviction shall may only be filed 7 or more years after whichever of the following events occurs last:
(a) Imposition of the sentence for the convictions that the applicant seeks to set aside.
(b) Completion of any term of felony probation imposed for the convictions that the applicant seeks to set aside.
(c) Discharge from parole imposed for the convictions that the applicant seeks to set aside.
(d) Completion of any term of imprisonment imposed for the convictions that the applicant seeks to set aside.
(2) An application under section 1 to set aside 1 or more serious misdemeanor convictions, 1 first violation operating while intoxicated offense, or 1 felony conviction shall may only be filed 5 or more years after whichever of the following events occurs last:
(a) Imposition of the sentence for the conviction or convictions that the applicant seeks to set aside.
(b) Completion of probation imposed for the conviction or convictions that the applicant seeks to set aside.
(c) Discharge from parole imposed for the conviction that the applicant seeks to set aside, if applicable.
(d) Completion of any term of imprisonment imposed for the conviction or convictions that the applicant seeks to set aside.
(3) An application under section 1 to set aside 1 or more misdemeanor convictions, other than an application to set aside a serious misdemeanor, a first violation operating while intoxicated offense, or any other misdemeanor conviction for an assaultive crime, shall may only be filed 3 or more years after whichever of the following events occurs last:
(a) Imposition of the sentence for the conviction that the applicant seeks to set aside.
(b) Completion of any term of imprisonment imposed for the conviction that the applicant seeks to set aside.
(c) Completion of probation imposed for the conviction or convictions that the applicant seeks to set aside.
(4) For an application under section 1, a court shall not enter an order setting aside a conviction or convictions unless all both of the following apply:
(a) The applicable time period required under subsection (1), (2), or (3) has elapsed.
(b) There are no criminal charges pending against the applicant.
(c) The applicant has not been convicted of any criminal offense during the applicable time period required under subsection (1), (2), or (3).
(5) If a petition under this act is denied by the convicting court, a person shall not file another petition concerning the same conviction or convictions with the convicting court until 3 years after the date the convicting court denies the previous petition, unless the court specifies an earlier date for filing another petition in the order denying the petition.
(6) An application under section 1(3) may be filed at any time following the date of the conviction to be set aside. A person may apply to have more than 1 conviction set aside under section 1(3).
(7) An application under section 1 is invalid unless it contains the following information and is signed under oath by the person whose conviction is or convictions are to be set aside:
(a) The full name and current address of the applicant.
(b) A certified record of each conviction that is to be set aside.
(c) For an application under section 1(1), a statement that the applicant has not been convicted of an offense during the applicable time period required under subsection (1), (2), or (3).
(c) (d) A statement listing all actions enumerated in section 1(2) that were initiated against the applicant and have been dismissed.
(d) (e) A statement as to whether the applicant has previously filed an application to set aside this or other conviction and, if so, the disposition of the application.
(e) (f) A statement as to whether the applicant has any other criminal charge pending against him or her in any court in the United States or in any other country.
(f) (g) If the person is seeking to have 1 or more convictions set aside under section 1(3), a statement that he or she the person meets the criteria set forth in section 1(3), together with a statement of the facts supporting his or her the person's contention that the conviction was a direct result of his or her the person being a victim of human trafficking.
(g) (h) A consent to the use of the nonpublic record created under section 3 to the extent authorized by section 3.
(8) The applicant shall submit a copy of the application and 1 complete set of fingerprints to the department of state police. The department of state police shall compare those fingerprints with the records of the department, including the nonpublic record created under section 3, and shall forward an electronic copy of a complete set of fingerprints to the Federal Bureau of Investigation for a comparison with the records available to that agency. The department of state police shall report to the court in which the application is filed the information contained in the department's records with respect to any pending charges against the applicant, any record of conviction of the applicant, and the setting aside of any conviction of the applicant and shall report to the court any similar information obtained from the Federal Bureau of Investigation. The court shall not act upon the application until the department of state police reports the information required by this subsection to the court.
(9) The copy of the application submitted to the department of state police under subsection (8) must be accompanied by a fee of $50.00 payable to the state of Michigan that must be used by the department of state police to defray the expenses incurred in processing the application.
(10) A copy of the application must be served upon the attorney general and upon the office of each prosecuting attorney who prosecuted the crime or crimes the applicant seeks to set aside, and an opportunity must be given to the attorney general and to the prosecuting attorney to contest the application. If a conviction was for an assaultive crime or a serious misdemeanor, the prosecuting attorney shall notify the victim of the assaultive crime or serious misdemeanor of the application under section 22a or 77a of the William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.772a and 780.827a. The notice must be by first-class mail to the victim's last known address. The victim has the right to appear at any proceeding under this act concerning that conviction and to make a written or oral statement.
(11) For an application under section 1(1), upon the hearing of the application the court may require the filing of affidavits and the taking of proofs as it considers proper.
(12) For an application under section 1(3), if the applicant proves to the court by a preponderance of the evidence that the conviction was a direct result of his or her the applicant being a victim of human trafficking, the court may, subject to the requirements of subsection (13), enter an order setting aside the conviction.
(13) If the court determines that the circumstances and behavior of an applicant under section 1(1) or (3), from the date of the applicant's conviction or convictions to the filing of the application warrant setting aside the conviction or convictions, and that setting aside the conviction or convictions is consistent with the public welfare, the court may enter an order setting aside the conviction or convictions.
(14) The setting aside of a conviction or convictions under this act is a privilege and conditional and is not a right.
Sec. 1e. (1) Beginning on January 1, 2020, April 11, 2021, a person convicted of 1 or more misdemeanor marihuana offenses may apply to set aside the conviction or convictions under this subsection.
(2) An application under subsection (1) must contain all of the following information:
(a) The full name and current address of the applicant.
(b) A certified record of each conviction that is to be set aside.
(3) A copy of the application under subsection (1) must be served upon the agency that prosecuted the offense or offenses the applicant seeks to set aside.
(4) A rebuttable presumption that a conviction for a misdemeanor marihuana offense sought to be set aside by an applicant was based on activity that would not have been a crime if committed on or after December 6, 2018 arises upon the filing of an application under subsection (1). The presumption described in this subsection may be rebutted by the presentation of evidence by the prosecuting agency that prosecuted the case that demonstrates by a preponderance of the evidence that the conduct on which the applicant's conviction was or convictions were based would constitute a criminal violation of the laws of this state or a political subdivision of this state if it had been committed on or after December 6, 2018. An answer made under this subsection must be filed no later than 60 days from the date of service of the application. If an answer is filed with the convicting court, the answering party must serve the answer upon the other parties to the matter.
(5) Upon the expiration of the 60-day period under subsection (4), if the prosecuting agency has not filed an answer to the application addressing the rebuttable presumption described in subsection (4), the convicting court must within 21 days enter an order setting aside the conviction or convictions and serve a copy of the order upon the applicant, the arresting agency, the prosecuting agency, and the department of the state police.
(6) If the prosecuting agency files an answer addressing the rebuttable presumption in subsection (4), the convicting court must promptly set the matter for a hearing no later than 30 days from its receipt of the answer, and serve a notice of the hearing upon the applicant. At the hearing, the prosecuting agency must prove by a preponderance of the evidence that a conviction or convictions sought to be set aside by an applicant were based upon conduct that would constitute a criminal violation of the laws of this state or a political subdivision of this state if it had been committed on or after December 6, 2018. An applicant is not required to present evidence that his or her the applicant's conviction was based upon conduct that would not constitute a criminal violation of the laws of this state or a political subdivision of this state on or after December 6, 2018. The evidentiary burden under this subsection rests solely on the objecting prosecuting agency. After a hearing under this subsection, the court shall enter an order denying or granting the application no later than 14 days after completion of the hearing and serve any written opinions and orders, including an order setting aside the conviction or convictions, upon the parties, including the department of state police. The rules of evidence do not apply to a hearing under this subsection.
(7) As used in this section, "misdemeanor marihuana offense" means a violation of section 7403(2)(d), 7404(2)(d), or a marihuana paraphernalia violation of section 7453 of the public health code, 1978 PA 368, MCL 333.7403, 333.7404, and 333.7453, or a violation of a local ordinance substantially corresponding to section 7403(2)(d), 7404(2)(d), or the prohibition regarding marihuana paraphernalia of section 7453 of the public health code, 1978 PA 368, MCL 333.7403, 333.7404, and 333.7453.