21.10Collection of Biometric Data From Juveniles
A.Biometric Data Collection Requirements
MCL 28.243 requires law enforcement agencies to collect an individual’s “biometric data” upon arrest for a felony or other qualifying offense and to forward the biometric data to the Department of State Police. “‘Biometric data’ means all of the following:
(i) Fingerprint images recorded in a manner prescribed by the [Department of State Police (“department”)].
(ii) Palm print images, if the arresting law enforcement agency has the electronic capability to record palm print images in a manner prescribed by the department.
(iii) Digital images recorded during the arrest or booking process, including a full-face capture, left and right profile, and scars, marks, and tattoos, if the arresting law enforcement agency has the electronic capability to record the images in a manner prescribed by the department.
(iv) All descriptive data associated with identifying marks, scars, amputations, and tattoos.” MCL 28.241a(b).
MCL 28.243(1)-(2) provides, in part:
“(1) . . . [U]pon 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)],[1] 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,[2] 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)],[3] 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 juvenile’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).
An arrest record must be removed from the internet criminal history access tool (ICHAT) “if an individual is arrested for any crime and the charge or charges are dismissed before trial[.]” MCL 764.26a(1)(a). Additionally, “[i]f 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) [t]he arrest record, all biometric data, and fingerprints shall be expunged or destroyed as appropriate[;]
(ii) [a]ny entry concerning the charge shall be removed from LEIN[; and]
(iii) [u]nless 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.” MCL 764.26a(1)(b). See also MCL 28.243(8).
The department of state police must comply with the requirements set forth in MCL 764.26a upon receipt of an appropriate order of the district court or the circuit court. MCL 764.26a(2). See also MCL 28.243(9).
B.Family Division’s Obligation to Ensure Collection of Biometric Data
When authorizing a petition, and before entering an order of disposition or placing the case on the consent calendar, a court must examine the court file and determine whether the juvenile’s biometric data4 has been collected and forwarded to the Department of State Police as required by MCL 28.243. See MCR 3.932(C)(3); MCR 3.936(B). See also MCL 712A.11(5); MCL 712A.18(10). MCR 3.936(B) provides:
“At the time that the court authorizes the filing of a petition alleging a juvenile offense and before the court enters an order of disposition on a juvenile offense or places the case on the consent calendar, the court shall examine the confidential files and verify that the juvenile has had biometric data collected. If it appears to the court that the juvenile has not had biometric data collected, the court must:
(1) direct the juvenile to go to the law enforcement agency involved in the apprehension of the juvenile, or to the sheriff’s department, so biometric data may be collected; or
(2) issue an order to the sheriff’s department to apprehend the juvenile and to collect the biometric data of the juvenile.” MCL 712A.11(5) contains substantially similar requirements.
Similarly, MCR 3.943 requires the Family Division, before entering an order of disposition, to verify that the juvenile has had biometric data collected:
“The [Family Division] shall not enter an order of disposition for a juvenile offense until the court verifies that the juvenile has had biometric data collected. If the juvenile has not had biometric data collected, the court shall proceed as provided by MCR 3.936.” MCR 3.943(E)(4). MCL 712A.18(10) contains substantially similar requirements.
These biometric data collection requirements also apply to designated proceedings. See MCR 3.951(A)(2)(c)(i) and MCR 3.951(B)(2)(c)(i) (requiring the Family Division to comply with MCR 3.936 upon authorization of a petition in a designated case); MCR 3.955(E) (requiring the Family Division to comply with MCR 3.943 if it does not sentence a juvenile as an adult in a designated case).
Biometric data “must be placed in the confidential files, capable of being located and destroyed on court order.” MCR 3.932(C).
C.Court’s Obligation to Ensure Fingerprinting in Waiver Cases
If jurisdiction over a juvenile is waived to the court of general criminal jurisdiction, the district court must examine the court file at the time of arraignment to determine whether the juvenile has been fingerprinted as required by MCL 28.243.5 MCL 764.29(1). If the juvenile has not had the required fingerprints taken before arraignment, the magistrate must order the juvenile to submit himself or herself to the arresting agency or order the juvenile committed to the custody of the sheriff so that fingerprints may be taken. MCL 764.29(2)(a)-(b).
Similarly, at sentencing in an automatic waiver or traditional waiver case, the court must ensure that the juvenile’s fingerprints have been taken. MCL 769.1(2); MCL 769.16a(5). See also MCL 769.16a(6), which requires the sentencing court to comply with the fingerprinting requirements of the SORA.6
D.Forwarding Biometric Data to the Department of State Police
If a court orders the collection of a person’s biometric data under MCL 712A.11, MCL 712A.18, MCL 764.29, or MCL 769.1, 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).
E.Discretionary Collection of Biometric Data and Photographing
MCR 3.923(C) provides that, in addition to the collection of biometric data that is required by law, “[t]he [Family Division] may permit the collection of biometric data or photographing, or both, of a minor concerning whom a petition has been filed.”7 Any such biometric data and photographs “must be placed in the confidential files, capable of being located and destroyed on court order.” Id.
1 MCL 28.176(1) requires the Department of State Police to permanently retain a DNA identification profile obtained from a sample in the manner prescribed under the DNA Identification Profiling System Act, MCL 28.171 et seq., from offenders convicted or found responsible of the certain enumerated offenses. See Section 21.17(A); Section 21.17(B); Section 20.17(D)(1).
2 See Section 21.9 for the definition of “juvenile offense.”
3 MCL 28.176(1) requires the Department of State Police to permanently retain a DNA identification profile obtained from a sample in the manner prescribed under the DNA Identification Profiling System Act, MCL 28.171 et seq., from offenders convicted or found responsible of the certain enumerated offenses. See Section 21.17(A); Section 21.17(B); Section 20.17(D)(1).
4 “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).
5 Effective December 14, 2012, 2012 PA 374 amended MCL 28.243 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).
6 For detailed information on the SORA, including both general and juvenile-specific information, see the Michigan Judicial Institute’s Sexual Assault Benchbook, Chapter 9.
7 See Section 7.6.