March 11, 2014, Introduced by Senators PAVLOV, JANSEN, ROBERTSON, BOOHER, PROOS, BRANDENBURG and CASPERSON and referred to the Committee on Judiciary.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending section 1 of chapter III, section 6b of chapter V, and
section 22 of chapter VIII (MCL 763.1, 765.6b, and 768.22), section
6b of chapter V as amended by 2013 PA 54.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER III
Sec. 1. On the trial of every indictment or other criminal
accusation, the party accused shall be allowed to be heard by
counsel
and may defend himself or herself, and he shall have or she
has a right to produce witnesses and proofs in his or her favor,
and
meet the witnesses who are produced against him face to face.or
her. Nothing in this section prohibits the use of video
communication equipment as authorized under this act.
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.
(c) A statement of the date the conditions become effective.
(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 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 law enforcement agency to remove the order or
amended
order from the law enforcement information network.LEIN.
(5) 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.
(c) "Electronic monitoring device" includes any electronic
device or instrument that is used to track the location of an
individual, 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 chemical test and that test reveals the
presence of a controlled substance. 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 or of a controlled substance 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 trial.
(8) The judge or district court magistrate shall immediately
direct 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.
(9) 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 judge or district
court magistrate shall immediately order the law enforcement agency
to remove the order or amended order from LEIN upon expiration of
the order as directed by the court 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 act, 1974
PA 163, MCL 28.211 to 28.215, or by the department of state police.
CHAPTER VIII
Sec.
22. (1) The All applicable
rules of evidence in civil
actions ,
insofar as the same are applicable, shall govern in all
criminal and quasi-criminal proceedings, except as otherwise
provided by law.
(2)
In prosecutions a
prosecution charging a second or
subsequent
offense under Act No. 300 of the Public Acts of 1949, as
amended,
being sections 257.1 to 257.923 of the Compiled Laws of
1948,
the Michigan vehicle code,
1949 PA 300, MCL 257.1 to 257.923,
a certification by a judge or clerk of a court under the seal of
the court of a prior conviction for the same offense is admissible
and is prima facie evidence of the fact of conviction. The
certification shall include the person's full name, address, date
of birth, operator's or chauffeur's license number and vehicle
registration
number, if such that information is available to the
person so certifying, and the dates of the offense and the
conviction thereof.
(3) In a prosecution charging a violation of section 625 or
625m of the Michigan vehicle code, 1949 PA 300, MCL 257.625 and
257.625m, the court may allow an expert witness to be sworn and
testify concerning chemical testing and custody of evidence by
video communication equipment that permits all the individuals
appearing or participating to hear and speak to each other in the
court, chambers, or other suitable place. A verbatim record of the
testimony shall be taken in the same manner as for other testimony.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No. 865
of the 97th Legislature is enacted into law.