Monday, April 1, 2002

MCL 769.4A: Michigan's Loophole To The Lautenberg Amendment - Federal DV Gun Ban - 18 U.S.C. § 921

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"Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime."


18 U.S.C. § 921: Lautenberg Amendment; Federal Domestic Violence Gun Ban






THE CODE OF CRIMINAL PROCEDURE (EXCERPT)
Act 175 of 1927

769.4a Assault on spouse, former spouse, individual with child in common, dating relationship, or household resident; plea or finding of guilty; deferral of proceedings and order of probation; previous convictions; adjudication of guilt upon violation of probation; mandatory counseling program; costs; circumstances for entering adjudication of guilt; discharge and dismissal; limitation; nonpublic record; definitions.

Sec. 4a.
(1) When an individual who has not been convicted previously of an assaultive crime pleads guilty to, or is found guilty of, a violation of section 81 or 81a of the Michigan penal code, 1931 PA 328, MCL 750.81 and 750.81a, and the victim of the assault is the offender's spouse or former spouse, an individual who has had a child in common with the offender, an individual who has or has had a dating relationship with the offender, or an individual residing or having resided in the same household as the offender, the court, without entering a judgment of guilt and with the consent of the accused and of the prosecuting attorney in consultation with the victim, may defer further proceedings and place the accused on probation as provided in this section. However, before deferring proceedings under this subsection, the court shall contact the department of state police and determine whether, according to the records of the department of state police, the accused has previously been convicted of an assaultive crime or has previously availed himself or herself of this section. If the search of the records reveals an arrest for an assaultive crime but no disposition, the court shall contact the arresting agency and the court that had jurisdiction over the violation to determine the disposition of that arrest for purposes of this section.

(2) Upon a violation of a term or condition of probation, the court may enter an adjudication of guilt and proceed as otherwise provided in this chapter.

(3) An order of probation entered under subsection (1) may include any condition of probation authorized under section 3 of chapter XI of the code of criminal procedure, 1927 PA 175, MCL 771.3, including, but not limited to, requiring the accused to participate in a mandatory counseling program. The court may order the accused to pay the reasonable costs of the mandatory counseling program. The court also may order the accused to participate in a drug treatment court under chapter 10A of the revised judicature act of 1961, 1961 PA 236, MCL 600.1060 to 600.1082. The court may order the defendant to be imprisoned for not more than 12 months at the time or intervals, which may be consecutive or nonconsecutive and within the period of probation, as the court determines. However, the period of imprisonment shall not exceed the maximum period of imprisonment authorized for the offense if the maximum period is less than 12 months. The court may permit day parole as authorized under 1962 PA 60, MCL 801.251 to 801.258. The court may permit a work or school release from jail.

(4) The court shall enter an adjudication of guilt and proceed as otherwise provided in this chapter if any of the following circumstances exist:
(a) The accused commits an assaultive crime during the period of probation.
(b) The accused violates an order of the court that he or she receive counseling regarding his or her violent behavior.
(c) The accused violates an order of the court that he or she have no contact with a named individual.

(5) Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.

(6) There may be only 1 discharge and dismissal under this section with respect to any individual. The department of state police shall retain a nonpublic record of an arrest and discharge and dismissal under this section. This record shall be furnished to a court or police agency upon request pursuant to subsection (1) or to an office of prosecuting attorney for the purpose of showing that a defendant in a criminal action under section 81 or 81a of the Michigan penal code, 1931 PA 328, MCL 750.81 and 750.81a, or a local ordinance substantially corresponding to section 81 of that act has already once availed himself or herself of this section or for the purpose of determining whether the defendant in a criminal action is eligible for discharge and dismissal of proceedings by a drug treatment court under section 1076

(5) of the revised judicature act of 1961, 1961 PA 236, MCL 600.1076.

(7) As used in this section:
(a) "Assaultive crime" means 1 or more of the following:
(i) That term as defined in section 9a of chapter X.
(ii) A violation of chapter XI of the Michigan penal code, 1931 PA 328, MCL 750.81 to 750.90g.

(iii) A violation of a law of another state or of a local ordinance of a political subdivision of this state or of another state substantially corresponding to a violation described in subparagraph (i) or (ii).

(b) "Dating relationship" means frequent, intimate associations primarily characterized by the expectation of affectional involvement. This term does not include a casual relationship or an ordinary fraternization between 2 individuals in a business or social context.

History: Add. 1978, Act 353, Imd. Eff. July 14, 1978 ;-- Am. 1980, Act 471, Eff. Mar. 31, 1981 ;-- Am. 1994, Act 68, Eff. July 1, 1994 ;-- Am. 2001, Act 208, Eff. Apr. 1, 2002 ;-- Am. 2004, Act 220, Eff. Jan. 1, 2005 ;-- Am. 2006, Act 663, Imd. Eff. Jan. 10, 2007

© 2009 Legislative Council, State of Michigan

18 U.S.C. § 921, Lautenberg Amendment, Domestic Violence Gun Ban, MCL 769.4a, Michigan's loophole to the Lautenberg Amendment, MCL 750.81, MCL 750.81a, Michigan misdemeanor and felony domestic assault crimes dismissed under MCL 769.4a.

6 comments:

Anonymous said...

Is the record public while on probation or non public?

survivor said...

Yes, probation is public record, as it is a sentence. It is also public record when the probationer commits another crime while on probation; violates probation; or has their probation revoked.

Anonymous said...

So what does it mean if it is a non public record? I am trying to get a job while on probation with a 7694a if company does a background check will they see anything? Also I looked up my name in the court record database and nothing showed up.

survivor said...

A conviction under 769.4a is expunged only AFTER successful completion of the sentence / probation.

Anonymous said...

So what will show up on a employer background check while I am on probation?

survivor said...

A background check will show that you are currently on probation for the crime you committed.
Incidently, MCL 769.4a does not expunge your arrest record.