Destruction_of_Biometric_Data_and_Arrest

21.11Des truction of Biometric Data and Arrest Card

A.Petition Not Authorized, Release Without Charge, Finding of No Family Division Jurisdiction, or Finding of Not Guilty

If a petition is not authorized, the juvenile is released without being charged, or criminal contempt proceedings are not brought against the juvenile, the official taking or holding the juvenile’s biometric data and arrest card must immediately destroy the biometric data and arrest card. MCL 28.243(7). If the juvenile’s arrest card was forwarded to the Department of State Police (“department”), the law enforcement agency must notify the department in a manner prescribed by the department that a petition was not authorized or that a charge was not made against the juvenile. Id.

With the exception of certain offenses listed in MCL 28.243(14),⁸² if a juvenile is adjudicated and found not to be within the Family Division’s jurisdiction, or if the juvenile is found not guilty of an offense for which biometric data were collected, the biometric data and arrest card must be destroyed by the official holding those items. MCL 28.243(10). Additionally, “the clerk of the court entering the disposition shall notify the department of any finding of not guilty or nolle prosequi, if it appears that the biometric data of the accused were initially collected under [MCL 28.243], or of any finding that a juvenile alleged responsible for a juvenile offense^[⁸³] is not within the provisions of [MCL 712A.2(a)(1)].” MCL 28.243(10).

Similarly, MCR 3.936(D) provides:

“The court, on motion filed pursuant to MCL 28.243(10), shall issue an order directing the Department of State Police, or other official holding the information, to destroy the biometric data and arrest card of the juvenile pertaining to the offense, other than an offense as listed in MCL 28.243(14),^[⁸⁴^] when a juvenile has had biometric data collected for a juvenile offense and no petition on the offense is submitted to the court, the court does not authorize the petition, or the court has neither placed the case on the consent calendar nor taken jurisdiction of the juvenile under MCL 712A.2(a)(1).”

“[The] defendant was [not] required to file an action for mandamus [against the Michigan State Police] rather than a motion in the district court seeking the destruction of his fingerprints and arrest card[]” because “courts of this state routinely recognize a defendant’s ability to file a motion in a criminal case for the return or destruction of his or her biometric data and arrest card pursuant to MCL 28.243.” People v Guthrie, 317 Mich App 381, 387, 387-388 n 6, 390 (2016) (additionally noting that “[t]his conclusion is consistent with the fact that the State Court Administrative Office (SCAO) has approved court forms^[⁸⁵] that specifically pertain to these motions”).

B.Adjudication and Dismissal By Plea

“[T]he mere fact that the proceedings against [a juvenile] were later dismissed does not entitle [him or] her to destruction of [his or] her fingerprints and arrest cards.” In re Klocek, 291 Mich App 9, 16 (2010). In Klocek, 291 Mich App at 10-11, the respondent juvenile admitted the allegation against her and the court entered an order of adjudication and indicated that she was adjudicated by plea under a Cobbs ⁸⁶ agreement. Before disposition, the court either dismissed the petition or “warned and dismissed” the respondent under MCL 712A.18(1)(a) (the lower court’s record was unclear as to what occurred). Klocek, 291 Mich App at 10. The Court of Appeals rejected the respondent’s claim that she was entitled to destruction of her fingerprints and arrest card under the portion of [MCL 28.243(10)⁸⁷] requiring the court clerk to notify the Department of State Police of any “dismissal[.]” Klocek, 291 Mich App at 11-13. Rather, the Court explained:

“By the plain language of [MCL 28.243(10)], there are two classes of persons who are entitled to destruction of their fingerprints^[⁸⁸^] and arrest card: (1) a juvenile who ‘is adjudicated and found not to be within the provisions of [MCL 712A.2(a)(1)]’ (i.e., those found not to be within the jurisdiction of the family division of circuit court); and (2) an accused who ‘is found not guilty of an offense for which he or she was fingerprinted.’”

In Klocek, 291 Mich App at 16, the respondent admitted the allegation against her at an adjudication hearing, and the court entered an order of adjudication and indicated the respondent was adjudicated by a Cobbs plea. “Thus, [the] respondent was neither a juvenile found not to be within the family court’s jurisdiction nor an accused found not guilty.” Klocek, 291 Mich App at 15-16.

C.Charge(s) Dismissed Before Trial

MCL 28.243(8) provides:

“If an individual is arrested for any crime and the charge or charges are dismissed before trial, both of the following apply:

(a) The arrest record shall be removed from the internet criminal history access tool (ICHAT).

(b) If the prosecutor of the case agrees at any time after the case is dismissed, or if the prosecutor of the case or the judge of the court in which the case was filed does not object within 60 days from the date an order of dismissal was entered for cases in which the order of dismissal was entered after [June 12, 2018], both of the following apply:

(i) The arrest record, all biometric data, and fingerprints shall be expunged or destroyed, or both, as appropriate.

(ii) Any entry concerning the change shall be removed from the LEIN.”

“The department shall comply with the requirements listed in subsection (8) upon receipt of an appropriate order issued by the district court or the circuit court.” MCL 28.243(9).

D.C harges For Which Dest ruction of Biometric Data and Arrest Card Is Not Permitted

MCL 28.243(14) provides:

“The provisions of [MCL 28.243(10)] that require the destruction of the biometric data and the arrest card do not apply to a person who was arraigned for any of the following:

(a) The commission or attempted commission of a crime with or against a child under 16 years of age.

(b) Rape.

(d) Sodomy.

(e) Gross indecency.

(f) Indecent liberties.

(g) Child abusive commercial activities.

(h) A person who has a prior conviction, other than a misdemeanor traffic offense, unless a judge of a court of record, except the probate court, by express order on the record, orders the destruction or return of the biometric data and arrest card.

(i) A person arrested who is a juvenile charged with an offense that would constitute the commission or attempted commission of any of the crimes in [MCL 28.243(12] if committed by an adult.”

“[A]n arraignment in either district court or circuit court is sufficient for [MCL 28.243(14)⁸⁹] to apply[;]” therefore, under [MCL 28.243(14)(c)⁹⁰], a defendant who was arraigned in district court for second-degree criminal sexual conduct was not entitled to destruction of his biometric data and arrest card under [MCL 28.243(10)⁹¹] following entry of an order of nolle prosequi. People v Guthrie, 317 Mich App 381, 393-394 (2016) (concluding that the Legislature’s “deletion of the phrase ‘in circuit court or the family division of circuit court’ [by a 2012 amendment to MCL 28.243(14)] reflects the Legislature’s intent to change the statute’s scope[]”). Additionally, “given the clear and unambiguous language of the statute,” a trial court lacks “discretion to order the destruction or return of [a] defendant’s biometric data and arrest card in the interest of justice.” Guthrie, 317 Mich App at 394.

In People v Cooper (After Remand), 220 Mich App 368, 369-370 (1996), the Court of Appeals rejected the defendant’s Equal Protection challenge with respect to former MCL 28.243(9)(a), which, similarly to current MCL 28.243(14), provided that individuals who were charged with certain offenses, including criminal sexual conduct, were not entitled to the return of their fingerprints ⁹² and arrest cards following acquittal.⁹³ The Cooper Court, noting the particular difficulty in detecting, investigating, and prosecuting criminal sexual conduct offenses, held that a rational basis existed for prohibiting the return of fingerprints and arrest cards to persons acquitted of such charges while permitting return of those documents to persons acquitted of other serious crimes. Cooper, 220 Mich App at 371-375. See also People v Pigula, 202 Mich App 87, 91 (1993) (former MCL 28.243[9] did not violate the defendant’s right of privacy because “there is no right of privacy with regard to arrest records where the arrest was made properly[]”) (internal citations omitted).

82. See Section 21.11(D) for discussion of offenses listed in MCL 28.243(14).

83. See Section 21.9 for the applicable definition of “juvenile offense.”

84. See Section 21.11(D) for discussion of the offenses listed in MCL 28.243.

85. See SCAO Form MC 235, Motion for Destruction of Fingerprints and Arrest Card; SCAO Form MC 392, Order Regarding Destruction of Fingerprints and Arrest Card; SCAO Form MC 263, Motion/Order of Nolle Prosequi.

86. People v Cobbs, 443 Mich 276, 283 (1993).

87. At the time Klocek was decided, the provision discussed was MCL 28.243(8). It was renumbered by 2018 PA 67, effective 6/12/18.

88. Effective December 14, 2012, 2012 PA 374 amended MCL 28.243(8) and several related provisions governing the collection of fingerprints and other criminal history and juvenile history record information by law enforcement agencies to refer to “biometric data” rather than “fingerprints[.]” “Biometric data” includes fingerprint and palm print images, “[d]igital images recorded during the arrest or booking process,” and “descriptive data associated with identifying marks, scars, amputations, and tattoos.” MCL 28.241a(b).

89. At the time Guthrie was decided, the provision discussed was MCL 28.243(12). It was renumbered by 2018 PA 67, effective 6/12/18.

90. At the time Guthrie was decided, the provision discussed was MCL 28.243(12)(c). It was renumbered by 2018 PA 67, effective 6/12/18.

91. At the time Guthrie was decided, the provision discussed was MCL 28.243(8). It was renumbered by 2018 PA 67, effective 6/12/18.

92. Effective December 14, 2012, 2012 PA 374 amended MCL 28.243(12) and several related provisions governing the collection of fingerprints and other criminal history and juvenile history record information by law enforcement agencies to refer to “biometric data” rather than “fingerprints[.]” “Biometric data” includes fingerprint and palm print images, “[d]igital images recorded during the arrest or booking process,” and “descriptive data associated with identifying marks, scars, amputations, and tattoos.” MCL 28.241a(b).

93. Under the version of MCL 28.243 in effect at the time that Cooper, 220 Mich App 368, was decided, MCL 28.243(5) provided that an acquitted defendant was entitled to the “return” of his or her fingerprints and arrest card; however, MCL 28.243(9)(a) provided that return of the fingerprints and arrest card was not required if “[t]he person arrested was charged with the commission or attempted commission . . . of a crime with or against a child under 16 years of age or the crime of criminal sexual conduct in any degree, rape, sodomy, gross indecency, indecent liberties, or child abusive commercial activities.”