3.13Collection of Biometric Data

A.Biometric Data Collection Requirements

MCL 28.243 requires law enforcement agencies to collect an individual’s biometric data¹ upon arrest for a felony or other qualifying offense and to forward the biometric data to the Department of State Police.

MCL 28.243(1)-(2) provides, in part:

“(1) Except as provided in [MCL 28.243(3)], upon the arrest of a person for a felony or for a misdemeanor violation of state law for which the maximum possible penalty exceeds 92 days’ imprisonment or a fine of $1,000.00, or both, or a misdemeanor authorized for DNA collection under . . . [MCL 28.176(1)(b)],^[2] or for criminal contempt under . . . MCL 600.2950 [or MCL] 600.2950a, or criminal contempt for a violation of a foreign protection order that satisfies the conditions for validity provided in . . . MCL 600.2950i, or for a juvenile offense,^[3] other than a juvenile offense for which the maximum possible penalty does not exceed 92 days’ imprisonment or a fine of $1,000.00, or both, or for a juvenile offense that is a misdemeanor authorized for DNA collection under . . . [MCL 28.176(1)(b)], the arresting law enforcement agency in this state shall collect the person’s biometric data and forward the biometric data to the [Department of State Police (“department”)] within 72 hours after the arrest. The biometric data must be sent to the department on forms furnished by or in a manner prescribed by the department, and the department shall forward the biometric data to the director of the Federal Bureau of Investigation on forms furnished by or in a manner prescribed by the director.

(2) A law enforcement agency shall collect a person’s biometric data under [MCL 28.243(2)] if the person is arrested for a misdemeanor violation of state law for which the maximum penalty is 93 days or for criminal contempt under . . . MCL 600.2950 [or MCL] 600.2950a, or criminal contempt for a violation of a foreign protection order that satisfies the conditions for validity provided in . . . MCL 600.2950i, if the biometric data have not previously been collected and forwarded to the department under [MCL 28.243(1)]. A law enforcement agency shall collect a person’s biometric data under [MCL 28.243(2)] if the person is arrested for a violation of a local ordinance for which the maximum possible penalty is 93 days’ imprisonment and that substantially corresponds to a violation of state law that is a misdemeanor for which the maximum possible term of imprisonment is 93 days. If the person is convicted of any violation, the law enforcement agency shall collect the person’s biometric data before sentencing if not previously collected. The court shall forward to the law enforcement agency a copy of the disposition of conviction, and the law enforcement agency shall forward the person’s biometric data and the copy of the disposition of conviction to the department within 72 hours after receiving the disposition of conviction in the same manner as provided in [MCL 28.243(1)]. If the person is convicted of violating a local ordinance, the law enforcement agency shall indicate on the form sent to the department the statutory citation for the state law to which the local ordinance substantially corresponds.”

A person’s biometric data need not be collected solely because he or she has been arrested for violating MCL 257.904(3)(a) (individual’s first conviction of driving or allowing someone else to drive the individual’s motor vehicle with a suspended or revoked license or without a license) or a corresponding local ordinance. MCL 28.243(3).

B.District Court’s Obligation to Ensure Fingerprinting

When a defendant is arraigned on a felony charge or a misdemeanor charge punishable by more than one year of imprisonment, the district court must examine the court file to determine whether the defendant’s fingerprints have been taken as required by MCL 28.243.⁴ MCL 764.29(1). If the defendant has not had the required fingerprints taken before arraignment, the magistrate must order him or her to submit to the arresting agency or order him or her committed to the custody of the sheriff so that fingerprints may be taken. MCL 764.29(2)(a)-(b).

C.Forwarding Biometric Data to the Department of State Police

If a court orders the collection of a person’s biometric data, the law enforcement agency that collects the biometric data must forward the biometric data and arrest card to the Department of State Police. MCL 28.243(6).

D.Destruction of Biometric Data and Arrest Card

1.Release Without Charge or Finding of Not Guilty

If a person whose biometric data were collected is released without being charged, or if criminal contempt proceedings are not brought, the official taking or holding the person’s biometric data and arrest card must immediately destroy the biometric data and arrest card. MCL 28.243(7). If the 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 charge was not made or that a criminal contempt proceeding was not brought against the person. Id.

With the exception of certain offenses listed in MCL 28.243(14),⁵ if the accused 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.]” MCL 28.243(10).

“[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^[6] that specifically pertain to these motions[]”).

2.Individual’s Charge(s) Is Dismissed Before Trial

MCL 764.26a states:

   “(1) 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 is entered after [June 12, 2018], all 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 charge shall be removed from LEIN.

(iii) Unless a DNA sample or profile, or both, is allowed or required to be retained by the department of state police under . . . MCL 28.176, the DNA sample or profile, or both, obtained from the individual shall be expunged or destroyed.

(2) The department of state police shall comply with the requirements listed in [MCL 764.26a(1)] upon receipt of an appropriate order of the district court or the circuit court.” See also MCL 28.243(8)-(9).

“MCL 28.176(1) provides that law enforcement shall permanently retain a DNA identification profile of an individual obtained from a sample if the individual is arrested for committing or attempting to commit a felony offense.” People v Cole, ___ Mich App ___, ___ (2024) (cleaned up). “However, MCL 28.176(4)(a) provides that the individual’s DNA sample or DNA identification profile, or both, must be destroyed or expunged, as appropriate, if the charge for which the sample was obtained has been dismissed or resulted in acquittal, or no charge was filed within the limitations period.” Cole, ___ Mich App at ___ (quotation marks omitted). “Likewise, MCL 28.176(10)(b) provides that the state police forensic laboratory shall dispose of a DNA sample or profile or both when the charge for which the sample was obtained has been dismissed or has resulted in an acquittal or that no charge was filed within the applicable limitations period.” Cole, ___ Mich App at ___ (quotation marks omitted).

In Cole, “[d]efendant’s DNA sample was obtained because he was arrested and charged with the felony of second-degree home invasion[.]” Id. at ___. “Defendant pleaded no contest to lesser offenses that do not trigger DNA collection under MCL 28.176, and the home invasion charge was dismissed.” Cole, ___ Mich App at ___. “The trial court determined . . . that even though the felony charge against defendant that gave rise to the police collecting defendant’s DNA profile and sample had been dismissed, the dismissal did not warrant destruction of his DNA profile and sample because defendant pleaded guilty to lesser offenses in lieu of the felony.” Id. at ___. However, the Cole Court held that MCL 28.176 “plainly states that DNA must be destroyed when the charge for which the sample was obtained has been dismissed.” Cole, ___ Mich App at ___ (quotation marks and citation omitted). “MCL 28.176(4)(a) and MCL 28.176(10)(b) specify that the dismissal refers to the charge for which the sample was obtained, not the action or claim.” Cole, ___ Mich App at ___. MCL 28.176 “does not in any way qualify the term ‘the charge for which the sample was obtained’ or the term ‘dismissed.’” Cole, ___ Mich App at ___. Instead, MCL 28.176 “requires the DNA profile and sample to be destroyed when the charge for which the sample was obtained has been dismissed.” Cole, ___ Mich App at ___ (holding that “the destruction of defendant’s DNA profile and sample [was] mandated” because the dismissal fell “squarely within the plain and ordinary meaning of the statutory language”).

3.Charges For Which Destruction of Biometric Data and Arrest Card Is Not Permitted

MCL 28.243(14) provides:

“Except as provided in [MCL 28.243(8)], 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.

(c) Criminal sexual conduct in any degree.

(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)⁷] to apply[;]” therefore, under [MCL 28.243(14)(c)], 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)⁸] 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 [former] MCL 28.243(12)] 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),⁹ provided that individuals who were charged with certain offenses, including criminal sexual conduct, were not entitled to the return of their fingerprints and arrest cards following acquittal.¹⁰ 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).