SB-0863, As Passed Senate, September 23, 2014

SUBSTITUTE FOR

SENATE BILL NO. 863

A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

by amending section 6b of chapter V (MCL 765.6b), as amended by

2013 PA 54.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER V

Sec. 6b. (1) A judge or district court magistrate may release

~~under this section~~ a defendant under this subsection subject to

conditions reasonably necessary for the protection of 1 or more

named persons. If a judge or district court magistrate releases

~~under this section~~ a defendant under this subsection subject to

protective conditions, the judge or district court magistrate shall

make a finding of the need for protective conditions and inform the

defendant on the record, either orally or by a writing that is

personally delivered to the defendant, of the specific conditions

imposed and that if the defendant violates a condition of release,

he or she will be subject to arrest without a warrant and may have

his or her bail forfeited or revoked and new conditions of release

imposed, in addition to the penalty provided under section 3f of

chapter XI and any other penalties that may be imposed if the

defendant is found in contempt of court.

(2) An order or amended order issued under subsection (1)

shall contain all of the following:

(a) A statement of the defendant's full name.

(b) A statement of the defendant's height, weight, race, sex,

date of birth, hair color, eye color, and any other identifying

information the judge or district court magistrate considers

appropriate.

(d) A statement of the date on which the order will expire.

(e) A statement of the conditions imposed.

(3) An order or amended order issued under this subsection and

subsection (1) may impose a condition that the defendant not

purchase or possess a firearm. However, if the court orders the

defendant to carry or wear an electronic monitoring device as a

condition of release as described in subsection (6), the court

shall also impose a condition that the defendant not purchase or

possess a firearm.

(4) The judge or district court magistrate shall immediately

direct the issuing court or a law enforcement agency within the

jurisdiction of the court, in writing, to enter an order or amended

order issued under subsection (1) or subsections (1) and (3) into

~~the law enforcement information network as provided by the C.J.I.S.~~

~~policy council act, 1974 PA 163, MCL 28.211 to 28.215.~~ LEIN.

If the order or amended order is rescinded, the judge or district

court magistrate shall immediately order the issuing court or law

enforcement agency to remove the order or amended order from ~~the~~

~~law enforcement information network.~~LEIN.

(5) A The issuing court or a law enforcement agency within the

jurisdiction of the court shall immediately enter an order or

amended order into ~~the law enforcement information network as~~

~~provided by the C.J.I.S. policy council act, 1974 PA 163, MCL~~

~~28.211 to 28.215,~~ LEIN or shall remove the order or amended order

from the law enforcement information network upon expiration of the

order or as directed by the court under subsection (4).

(6) If a defendant who is charged with a crime involving

domestic violence, or any other assaultive crime, is released under

this ~~section,~~ subsection and subsection (1), the judge or district

court magistrate may order the defendant to wear an electronic

monitoring device as a condition of release. With the informed

consent of the victim, the court may also order the defendant to

provide the victim of the charged crime with an electronic receptor

device capable of receiving the global positioning system

information from the electronic monitoring device worn by the

defendant that notifies the victim if the defendant is located

within a proximity to the victim as determined by the judge or

district court magistrate in consultation with the victim. The

victim shall also be furnished with a telephone contact with the

local law enforcement agency to request immediate assistance if the

defendant is located within that proximity to the victim. In

addition, the victim may provide the court with a list of areas

from which he or she would like the defendant excluded. The court

shall consider the victim's request and shall determine which areas

the defendant shall be prohibited from accessing. The court shall

instruct the entity monitoring the defendant's position to notify

the proper authorities if the defendant violates the order. In

determining whether to order a defendant to wear an electronic

monitoring device, the court shall consider the likelihood that the

defendant's participation in electronic monitoring will deter the

defendant from seeking to kill, physically injure, stalk, or

otherwise threaten the victim prior to trial. The victim may

request the court to terminate the victim's participation in the

monitoring of the defendant at any time. The court shall not impose

sanctions on the victim for refusing to participate in monitoring

under this subsection. A defendant described in this subsection

shall only be released ~~under this section~~ if he or she agrees to

pay the cost of the device and any monitoring as a condition of

release or to perform community service work in lieu of paying that

cost. An electronic monitoring device ordered to be worn under this

~~section~~ subsection shall provide reliable notification of removal

or tampering. As used in this subsection:

(a) "Assaultive crime" means that term as defined in section

9a of chapter X.

(b) "Domestic violence" means that term as defined in section

1 of 1978 PA 389, MCL 400.1501.

device or instrument that is used to track the location of an

individual or to monitor an individual's blood alcohol content, but

does not include any technology that is implanted or violates the

corporeal body of the individual.

(d) "Informed consent" means that the victim was given

information concerning all of the following before consenting to

participate in electronic monitoring:

(i) The victim's right to refuse to participate in that

monitoring and the process for requesting the court to terminate

the victim's participation after it has been ordered.

(ii) The manner in which the monitoring technology functions

and the risks and limitations of that technology, and the extent to

which the system will track and record the victim's location and

movements.

(iii) The boundaries imposed on the defendant during the

monitoring program.

(iv) Sanctions that the court may impose on the defendant for

violating an order issued under this subsection.

(v) The procedure that the victim is to follow if the

defendant violates an order issued under this subsection or if

monitoring equipment fails to operate properly.

(vi) Identification of support services available to assist the

victim to develop a safety plan to use if the court's order issued

under this subsection is violated or if the monitoring equipment

fails to operate properly.

(vii) Identification of community services available to assist

the victim in obtaining shelter, counseling, education, child care,

legal representation, and other help in addressing the consequences

and effects of domestic violence.

(viii) The nonconfidential nature of the victim's communications

with the court concerning electronic monitoring and the

restrictions to be imposed upon the defendant's movements.

(7) A judge or district court magistrate may release under

this subsection a defendant subject to conditions reasonably

necessary for the protection of the public if the defendant has

submitted to a preliminary roadside analysis that detects the

presence of alcoholic liquor, a controlled substance, or other

intoxicating substance, or any combination of them, and that a

subsequent chemical test is pending. The judge or district court

magistrate shall inform the defendant on the record, either orally

or by a writing that is personally delivered to the defendant, of

all of the following:

(a) That if the defendant is released under this subsection,

he or she shall not operate a motor vehicle under the influence of

alcoholic liquor, a controlled substance, or another intoxicating

substance, or any combination of them, as a condition of release.

(b) That if the defendant violates the condition of release

under subdivision (a), he or she will be subject to arrest without

a warrant, shall have his or her bail forfeited or revoked, and

shall not be released from custody prior to arraignment.

(8) The judge or district court magistrate shall immediately

direct the issuing court or a law enforcement agency within the

jurisdiction of the court, in writing, to enter an order or amended

order issued under subsection (7) into LEIN. If the order or

amended order is rescinded, the judge or district court magistrate

shall immediately order the issuing court or law enforcement agency

to remove the order or amended order from LEIN.

(9) The issuing court or a law enforcement agency within the

jurisdiction of the court shall immediately enter an order or

amended order into LEIN. If the order or amended order is

rescinded, the court or law enforcement agency shall immediately

remove the order or amended order from LEIN upon expiration of the

order under subsection (8).

(10) ~~(7)~~ This section does not limit the authority of judges

or district court magistrates to impose protective or other release

conditions under other applicable statutes or court rules,

including ordering a defendant to wear an electronic monitoring

device.

(11) As used in this section, "LEIN" means the law enforcement

information network regulated under the C.J.I.S. policy council

act, 1974 PA 163, MCL 28.211 to 28.215, or by the department of

state police.

Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.

Enacting section 2. This amendatory act does not take effect

unless House Bill No. 5385 of the 97th Legislature is enacted into

law.