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Opinion No. 5292

April 13, 1978


Traffic offenses and misdemeanors

Willingness to submit to fingerprints as a condition


Willingness to submit to being fingerprinted as a condition of bail

A magistrate must allow bail to an individual charged with a misdemeanor even though the person refuses to submit to fingerprinting.

Honorable H. Lynn Jondahl

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion upon the following question:

'When a person is arrested for a misdemeanor within the jurisdiction of a Justice of the Peace, and offers to post bail, is there any authority for conditioning his/her release upon his/her willingness to submit to being fingerprinted?

The Office of the Justice of the Peace has been abolished and its functions transferred to the district court. RJA 9921(1) and 9922, MCLA 600.9921(a) and 600.9922; MSA 27A.9921(a) and 27A.-9922. A district court judge or magistrate has the authority to fix bail in criminal cases over which he has jurisdiction. RJA 8311 as amended by 1969 PA 261, Sec. 1, MCLA 600.8311(c); MSA 27A.-8311(c), Sec. 8511 as amended by 1976 PA 402, MCLA 600.8511(c); MSA 27A.8511(c). See also City of Center Line v Thirty-Seventh District Judge, 74 Mich App 97; 253 NW2d 669 (1977).

1966 PA 257, Sec. 6, MCLA 780.66; MSA 28.872(56), states in pertinent part:

'(1) The person for whom bail has been set shall execute a bail bond and deposit with the clerk of the court before which the proceeding is pending a sum of money equal to ten dollars.

'(2) Upon depositing this sum, the person shall be released from custody subject to the conditions of the bail bond.' [Emphasis added]

The only conditions set forth in 1966 PA 257 are contained in section 9 thereof which states:

'(1) If a person is admitted to bail before conviction the conditions of the bail bond shall be that he will:

'(a) Appear to answer the charge in the court having jurisdiction on a day certain and thereafter as ordered by the court until discharged or final order of the court.

'(b) Submit himself to the orders and process of the court.

'(c) Not depart this state without leave.

'(2) If the defendant is admitted to bail after conviction the conditions of the bail bond shall be that he will:

'(a) Duly prosecute his appeal.

'(b) Appear at such time and place as the court may direct.

'(c) Not depart this state without leave of the court.

'(d) If the judgment is affirmed or the cause reversed and remanded for a new trial, forthwith surrender to the officer from whose custody he was bailed.'

The title to 1966 PA 257, supra, states that it is an act to provide for bail of persons arrested for or accused of criminal offenses involving traffic offenses or misdemeanors. In keeping within the scope of this title, 1966 PA 257, supra, Sec. 2 provides that:

'When from all the circumstances involving traffic offenses in violation of state law, township traffic ordinances or municipal traffic ordinances or any misdemeanor offense, the court is of the opinion that the accused will appear as required either before or after conviction the accused may be released on his own recognizance. A failure to appear as required by such recognizance is a misdemeanor and any obligated sum fixed in the recognizance shall be forfeited and collected in accordance with section 6.

'This section shall be liberally construed to effectute the purpose of relying upon criminal sanctions instead of financial loss to assure the appearance of the accused.'

In one decision the Court of Appeals stated:

'We hold that a person accused of committing a traffic offense or a misdemeanor has an absolute statutory right to post bail under the ten percent bail deposit act and that he may not be required to furnish a surety bond.' [Emphasis added] Pressley v Wayne Sheriff, 30 Mich App 300, 312; 186 NW2d 412 (1971).

In another case in which a defendant was cited for making an illegal left turn in violation of an Ann Arbor City Ordinance, the district court clerk refused him permission to post the statutory ten percent cash bail. The Court of Appeals disapproved of this practice stating:

'The clerk, under such circumstances, has a ministerial duty to apply the schedule and was without discretion to require the defendant to seek the judge's specific approval, for we hold in such cases a defendant has an absolute right to post bail in accordance with the provisions of MCLA 780.66; MSA 28.872(56). [Emphasis added] Cahill v Fifteenth District Judge, 70 Mich App 1, 4; 245 NW2d 381 (1976), see also 393 Mich 137; 224 NW2d 24 (1974).

Since defendants charged with a traffic ordinance or misdemeanor violation have an absolute statutory right to post bail under the above-mentioned statute and section, the question is whether this right may be precluded by their refusal to submit to fingerprinting. The statute allowing police officers in this State to fingerprint felons and misdemeanents states in pertinent part:

'It is hereby made the duty of the sheriffs of the several counties of this state, chiefs of police of the cities, and village marshalls, immediately upon the arrest of any person for a felony or a misdemeanor not cognizable by a justice of the peace, to take his fingerprints, . . ..' [Emphasis added] 1951 PA 99, Sec. 1 as amended by 1959 PA 176, Sec. 1, MCLA 28.243; MSA 4.463.

The Legislature has also provided for a misdemeanor penalty for any person who refuses to have his or her fingerprints taken under the above-mentioned section:

'Any person required to have his fingerprints taken under Sec. 3 who refuses to allow or resists the taking of his fingerprints is guilty of a misdemeanor. Such person must be advised that his refusal constitutes a misdemeanor.' 1968 PA 174, Sec. 3a, MCLA 28.243a; MSA 4.463(1).

Although OAG, 1977-1978, No 5032, p ___ (April 14, 1977), held that persons do not have a constitutional right to the return of their fingerprints nor a right under the Fifth Amendment of the United States Constitution not to have their fingerprints taken, I OAG, 1959-1960, No 3299, p 48 (March 9, 1959), different considerations apply to the question at hand. It must initially be noted that no police officer in this State has the authority to take the fingerprints of an individual who is not arrested for a felony or '. . . a misdemeanor not cognizable by a justice of the peace. . . .' 1951 PA 99, Sec. 1, supra. Secondly, an individual who is arrested for a traffic ordinance or any misdemeanor violation is given a statutory right to post bail. 1966 PA 257, supra, Pressley v Wayne Sheriff, supra; Cahill v Fifteenth District Judge, supra. Finally, no authority exists within the language of 1966 PA 257, supra, for a district court magistrate or a police agency which may have arrested a person on a traffic ordinance charge or any misdemeanor, to condition his or her right to post bond upon that individual's submission to being fingerprinted.

It must be remembered that the terms of 1966 PA 257, supra, apply to offenses involving township, municipal, or state traffic ordinances, or any misdemeanor. I recognize that police officers in this State, after the arrest of a person for a felony or a misdemeanor not cognizable by a justice of the peace, may take that individual's fingerprints. 1951 PA 99, Sec. 1 as amended. However, the language of 1966 PA 257, and the interpretative case law, leave no doubt that an individual charged with any misdemeanor has an absolute statutory right to post bond. Furthermore, this statute gives the magistrate no discretion on the question of whether or not to set bail.

It is therefore my opinion that a magistrate must allow bail to an individual charged with a misdemeanor even though the person refuses to submit to fingerprinting.

Frank J. Kelley

Attorney General