Bill Summary – FastDemocracy

HOUSE BILL NO. 4656
     May 24, 2023, Introduced by Reps. Hope, Wilson, Meerman, Price, Byrnes, Hood, O'Neal,
       Pohutsky, Hoskins, Grant, Weiss, Tyrone Carter, Churches, Morse, Rheingans, Andrews,
       Rogers, McKinney, Tsernoglou, Brabec, Edwards, Young and Scott and referred to the
       Committee on Criminal Justice.
          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
PA 316, and by adding section 6f to chapter V.
                    THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
                                       CHAPTER V
       Sec. 6b. (1) A judge or district court magistrate may release
 a defendant under this subsection subject to conditions reasonably
 necessary for the protection of 1 or more named persons. If a judge
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 or district court magistrate releases a defendant under this
 subsection subject to protective conditions, subject to conditions
 in excess of the standard conditions listed in section 6 of this
 chapter, including, but not limited to, conditions reasonably
 necessary for the protection of 1 or more reasonably identifiable
 persons or the community at large, the judge or district court
 magistrate shall make a finding of the need for protective the
 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 the defendant 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. Before imposing a condition under this section, the court
 shall do both of the following:
       (a) Consider whether a referral to the relevant pretrial
 services agency to provide support and supervision would be
 sufficient to address any pretrial risks posed by the defendant,
 and, if sufficient, refer the defendant to the pretrial services
 agency.
       (b) State on the record the reasoning for imposing each
 condition, including an explanation indicating the reason the
 condition is necessary and why it is the least restrictive means of
 addressing any risk posed by the defendant's release.
       (2) If the court imposes a condition that constitutes a
 significant liberty restraint, the defendant may request a hearing
 to reevaluate the condition after being in compliance with the
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 condition for not less than 60 days.
       (3) Upon request by the defendant under subsection (2), the
 court must conduct a hearing to reevaluate the condition that
 constitutes a significant liberty restraint.
       (4) Unless 1 or more of the following circumstances apply,
 there is a rebuttable presumption that a significant liberty
 restraint must be discontinued if the defendant has demonstrated
 compliance with the significant liberty restraint for not less than
 60 days:
       (a) The defendant is charged with an assaultive crime.
       (b) The defendant is charged with a listed offense.
       (c) The defendant is charged with an offense related to
 domestic violence.
       (5) The prosecutor of the case may overcome the presumption
 under subsection (4) if the prosecutor shows the significant
 liberty restraint remains necessary by clear and convincing
 evidence, notwithstanding the defendant's compliance with it, to
 prevent the defendant from absconding or to address a risk of
 personal harm to another reasonably identifiable person or harm to
 the community at large.
       (6) Nothing in subsection (2), (3), (4), or (5) prevents the
 court from reevaluating, amending, or discontinuing conditions at
 the court's discretion.
       (7) (2) An order or amended order issued under subsection (1)
 shall must 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
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 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.
         (f) A statement of the necessity of each condition imposed.
         (8) (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), (9), 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
 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.
         (5) The issuing court or a law enforcement agency within the
 jurisdiction of the court shall immediately enter an order or
 amended order into 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).
         (9) (6) If a The court may order a defendant to wear an
 electronic monitoring device for the purpose of location monitoring
 only if both of the following circumstances apply:
         (a) The defendant who is charged with a crime involving
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 domestic violence, or any other assaultive crime, is released under
 this 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. or a listed offense.
       (b) The court finds by clear and convincing evidence that the
 defendant poses a risk of absconding or of personal harm to another
 reasonably identifiable person or harm to the community at large.
       (10) 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 must 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 the victim would like the defendant
 excluded. The court shall consider the victim's request and shall
 determine which areas the defendant shall must 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 for the purpose
 of location monitoring, 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 before trial. The victim
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 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 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
 subsection shall must 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 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 "informed consent" means that the victim was
 given information concerning all of the following before consenting
 to participate in electronic monitoring:
       (a) (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.
       (b) (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.
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       (c) (iii) The boundaries imposed on the defendant during the
 monitoring program.
       (d) (iv) Sanctions that the court may impose on the defendant
 for violating an order issued under this subsection.
       (e) (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.
       (f) (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.
       (g) (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.
       (h) (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.
       (11) If an order in excess of the standard conditions of
 release listed in section 6 of this chapter includes a no-contact
 order, electronic monitoring imposed under subsection (9), or
 another condition required for the protection of 1 or more named
 persons, 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 such an order or
 amended order into LEIN. The entry into LEIN required under this
 subsection must include the statement of the conditions imposed
 under the order. If the order or amended order is rescinded, the
 judge or district court magistrate must immediately order the
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 issuing court or law enforcement agency to remove the order or
 amended order from LEIN.
       (12) The issuing court or a law enforcement agency within the
 jurisdiction of the court must immediately enter an order or
 amended order into LEIN or must remove the order or amended order
 from LEIN upon expiration of the order or as directed by the court
 under subsection (11).
       (13) (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 the defendant 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 the defendant 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.
       (14) (8) The judge or district court magistrate shall
 immediately direct the issuing court or a law enforcement agency
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 within the jurisdiction of the court, in writing, to enter an order
 or amended order issued under subsection (7) (13) 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.
       (15) (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).(13).
       (16) (10) This Except for the limitations on the use of
 significant liberty restraints, 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.
       (17) (11) As used in this section: ,
       (a) "Assaultive crime" includes any of the following:
       (i) A violation described in section 9a of chapter X.
       (ii) A violation of chapter XI of the Michigan penal code, 1931
 PA 328, MCL 750.81 to 750.90h, not otherwise included in
 subparagraph (i).
       (iii) A violation of section 110a, 136b, 234a, 234b, 234c, 349b,
 or 411h of the Michigan penal code, 1931 PA 328, MCL 750.110a,
 750.136b, 750.234a, 750.234b, 750.234c, 750.349b, and 750.411h, or
 any other felony which involves a violent act or threat of a
 violent act against any other person.
       (b) "Clear and convincing" means that the evidence is highly
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 and substantially more likely to be true than untrue. This standard
 of proof requires that the fact finder must be convinced that the
 contention is highly probable. Clear and convincing evidence may be
 established by any of the following:
       (i) Established past conduct.
       (ii) Testimony, including hearsay testimony, from a reliable
 witness.
       (iii) Review of police reports, witness statements, criminal
 history information, or any other documentation in court records.
       (c) "Domestic violence" means that term as defined in section
 1 of 1978 PA 389, MCL 400.1501.
       (d) "Electronic monitoring device" includes any electronic
 device or instrument that is used to monitor the location of a
 person or to monitor or detect a person's blood alcohol content. A
 condition of release must not include any technology that is
 implanted or violates the corporeal body of the person.
       (e) "Harm to the community at large" means that clear and
 convincing evidence demonstrates that the defendant's conduct would
 likely result in personal harm to another person, even if that
 person cannot be specifically identified.
       (f) "LEIN" means the law enforcement information network
 regulated under the C.J.I.S. policy council act, 1974 PA 163, MCL
 2