SENATE BILL No. 863

 

 

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.