Michigan Criminal Law Legislation in 2011

The following is an outline of the new criminal law legislation in Michigan for the year of 2011;

I. New Crimes & Penalties

A. Bath Salts. 2011 PA 88. Effective Aug. 2, 2011. Adds bath salts that are sold under some of the following trade names to schedule 1; White Lighting, Scarface, Sonic, White Dove, Cloud Nine, Red Dove, Ocean, Ivory Wave, Hurricane Charlie, Charge Plus, and MDPV. MCL 333.7212(1)(m-r).

B. Criminal Sexual Conduct by Health Professionals. 2011 PA 222-224. Effective Nov. 15, 2011. Allows or permanent revocation of a medical professional’s license if convicted o 1st, 2nd, or 3rd degree criminal sexual conduct committed as part of their profession. MCL 333.16245. Revocation by licensing department is not mandatory. MCL 333.16226.

C. Ephedrine/Pseudoephedrine. 2011 PA 84-87. Effective July 15, 2011.

1. Prohibits the sale of more than 3.6 grams of pseudoephedrine in a day or more than 9 grams within a 30 day period. A violation is a misdemeanor, punishable by up to 93 days in jail, a $500 fine, or both. MCL 333.17766c.

2. Requires retailers to process all sales through the National Precurso Log Exchange by Jan. 1, 2012. This creates a real time electronic tracking system for purchases. Failure to use the system is a misdemeanor, punishable by a $500 fine. MCL 333.7340a.

D. Fireworks. 2011 PA 256-257. Effective Jan. 1, 2012. Creates the Michigan Fireworks Safety Act. The Act allows the sale, possession, and use of consumer fireworks. It provides for the following criminal/civil violations.

1. Selling consumer fireworks without a certificate from the Department of Licensing and Regulation is a misdemeanor, punishable by up to 2 years in prison, a $5,000 fine or both. MCL 28.454. It is a G felony under the sentencing guidelines. MCL 777.11b.

2. Failure to display the certificate at a retail location is a civil violation with a $100 per day fine. MCL 28.454(7).

3. Selling fireworks from a retail location that doesn’t meet safety standards is a civil violation with a $2,500 per day fine. MCL 28.455(2).

4. Selling fireworks without at least $10,000,000 in liability insurance is a civil violation with a $5,000 fine. MCL 28.455(3).

5. A fireworks safety fee of 6% shall be collected by the seller on each fireworks sale. Failure to collect or remit the fee to the state is a misdemeanor, punishable by a $10,000 fine. MCL 28.458.

6. Using fireworks on another person’s property without the permission of the owner is a state civil infraction with a fine of up to $500. MCL 28.462(2).

7. Selling fireworks to a minor is a state civil infraction with a fine of up to $500. MCL 28.462(2).

8. Violating the smoking prohibition of the appropriate national fire protection association regulation is a misdemeanor, punishable by up to 1 year in jail, a $1,000 fine, or both. MCL 28.462(4).

9. Any other knowing, intentional, or reckless violation of the Act is a misdemeanor, punishable, by up to 30 days in jail, a $1,000 fine, or both. MCL 28.468(1)(a).

a. If the violation causes property damage, the penalty is up to 90 days in jail, a $5,000 fine, or both. MCL 28.468(1)(b).

b. If the violation causes serious impairment of a bodily function, it is a felony punishable by up to 5 years in prison, a $5,000 fine, or both. MCL 28.468(1)(c). It is an E felony under the sentencing guidelines. MCL 777.11b.

c. If the violation causes death, it is a felony punishable by up to 15 years in prison, a $10,000 fine, or both. MCL 28.468(1)(d). It is a C felony under the guidelines. MCL 777.11b.

10. The person from whom any fireworks are seized shall be responsible for the cost of safe storage. MCL 28.465 & MCL 28.468(2).

E. Mortgage Fraud.

1. False Pretenses. 2011 PA 201 & 202. Effective Jan. 1, 2012. Increases penalties for false pretense violations.

a. Increases the penalty for obtaining $20,000 to $50,000 by false pretenses to imprisonment for up to 15 years, a $15,000 fine / 3 times the value of the property obtained, or both. MCL 750.218(5). It is a C felony under the sentencing guidelines. MCL 777.16L.

b. Creates the new crime of obtaining $50,000 to $100,000 by false pretenses or obtaining $20,000 to $50,000 with 2 prior false pretense convictions.

i. It is a felony punishable by imprisonment for up to 15 years, a $25,000 fine / up to 3 times the value of the property obtained, or both. MCL 750.218(6). It is a C felony under the sentencing guidelines. MCL 777.16L.

c. Creates the new crime of obtaining $100,000 or more by false pretenses or obtaining $50,000 to $100,000 with 2 prior false pretense convictions.

It is a felony punishable by up to 20 years in prison, a $35,000 fine / 3 times the value of the property obtained, or both. MCL 750.218(7). It is a B felony under the sentencing guidelines MCL 777.16L.

2. Forgery and Uttering and Publishing. 2011 PA 206 & 207. Creates new crimes regarding the forgery and uttering and publishing of documents affecting real estate.

a. Forgery or uttering and publishing of a deed, discharge of mortgage, a power of attorney or any other document affecting an interest in real property, with an intent to defraud, is a felony punishable by up to 14 years in prison. MCL 750.248b & MCL 750.249b.

b. They are C felonies under the sentencing guidelines. MCL 777.16n.

c. Venue is in the county where the forgery was performed, in the county where the false document was uttered or published, or in the county in which the rightful property resides. MCL 750.248b(3).

d. Upon conviction, the court shall enter an order stating that the forged document is invalid, and shall record the order at the appropriate register of deeds office. MCL 750.248b(4) & MCL 750.249b(3).

3. Notary Fraud. 2011 PA 204 & 208. Effective Jan. 2, 2012. Makes it a felony punishable by up to 4 years in prison, a $5,000 fine, or both, if a violation of the Michigan Notary Public Act involves a document relating to an interest in real property or a mortgage transaction. MCL 555.309(1)(B). It is an F felony under the sentencing guidelines. MCL 777.11c.

4. Residential Mortgage Fraud. 2011 PA 202 & 205. Effective Jan. 1, 2012. A person who knowingly and with intent to defraud does any of the following commits the new crime of residential mortgage fraud.

a. Makes a false statement or misrepresentation concerning a material fact during the mortgage lending process. MCL 750.219d(1)(a).

b. Deliberately conceals or fails to disclose a material fact during the mortgage lending process. MCL 750.219d(1)(a).

c. Makes or uses a false pretense, or uses or facilitates the use of another’s false pretense, concerning the person’s intent to perform a future event during the mortgage lending process. MCL 750.750.219d(1)(b).

d. Uses or facilitates the use of false statement or misrepresentation made by another person concerning a material fact during the mortgage lending process. MCL 750.219d(1)(c).

e. Deliberately uses or facilitates the use of another’s concealment or failure to disclose a material fact during the mortgage lending process. MCL 750.219d(1)(c).

f. Receives or attempts to receive any proceeds or any other money in connection with the mortgage lending process that the person knew resulted from a violation of MCL 750.219d. MCL 750.219d(1)(d).

g. Files or causes to be filed with the register of deeds a document involved in the mortgage lending process that he or she knew to contain a deliberate material misstatement, misrepresentation, or omission. MCL 750.219d(1)(e).

h. Fails to disburse funds in accordance with the settlement or closing statement for the mortgage loan. MCL 750.219d(1)(f).

i. Includes conspiracies and solicitations to violate MCL 750.219d. MCL 750.219d(1)(g) & (h).

i. If the violation involved $100,000 or less, it is a felony punishable by imprisonment for up to 15 years, a $100,000 fine, or both. MCL 750.219d(4)(a). It is a C felony under the sentencing guidelines. MCL 777.16L.

ii. If the violations involved more than $100,000 it is a felony punishable by imprisonment for up to 20 years, a $500,000 fine, or both. MCL 750.219d(4)(b). It is a B felony under the sentencing guidelines. MCL 777.16L.

j. Venue is in the county where the property is located, in the county in which the owner of the property resides, or in any county in which a material act was performed in furtherance of the violation. MCL 750.219d(3).

k. An affirmative defense is available when the violation is committed by an employee or agent if the employer has a written policy that prohibits and penalizes mortgage fraud. MCL 750.219d(7).

l. Property used in the violation or received from the violation is subject to forfeiture. MCL 750.219d(8).

m. Upon the request of the mortgagor, the court can issue an order to be filled with the appropriate register of deeds indicating that the mortgage and other documents involved in the mortgage process are invalid. MCL 750.219d(9).

n. If any of the fraudulent documents were recorded, the prosecutor must provide the court with the name of the county in which the documents were recorded and the liber and page number or other identifying number of the recorded documents. MCL 750.219d(9)(c).

5. Statute of Limitations. 2011 PA 203. Effective Oct. 20, 2011. Increases the statute of limitations for mortgage fraud, false pretenses involving real property, and forgery or uttering and publishing involving real property to 10 years. MCL 767.24(5).

F. Partial Birth Abortions. 2011 PA 168-169. Effective Jan. 1, 2012. Makes it a felony punishable by up to 2 years in prison, a $50,000 fine, or both, to perform a partial birth abortion. MCL 750.90h. It is a G felony under the sentencing guidelines. MCL 777.16d.

II. Criminal Procedure

A. DNA.

1. 2011 PA 127. Effective July 21, 2011. Requires all current prison inmates to provide a DNA sample by Jan. 1, 2012. All new inmates must provide a sample with 90 days of entering prison, unless a sample has already been taken. MCL 791.233d.

2. 2011 PA 212. Effective Nov. 8, 2011. Extends the time for filing a post-conviction DNA petition to Jan. 1, 2016. MCL 770.16.

B. Expungement. 2011 PA 159. Effective June 23, 2011. Amends the expungement statute to allow a person to expunge an offense even if they have two 90 days misdemeanors convictions committed before the age of 21. MCL 780.621.

C. Forfeiture. 2011 PA 161. Effective Oct. 4, 2011. Changes the drug forfeiture law to allow forfeited funds to be used for any law enforcement purpose. MCL 333.7524(1)(b)(ii).

D. Parole. 2011 PA 165. Effective Oct. 6, 2011. Requires the Department of Corrections to provide electronic notice to the appropriate prosecuting attorney within 10 days of a parole board decision to grant parole. MCL 791.236.

E. Sex Offender Registry.

1. Conviction Defined.

a. A conviction in a criminal court, including tribal or military courts. MCL 28.722(b)(i).

b. A conviction that has been set aside under MCL 780.621-624. MCL 28.722(b)(i).

c. Being assigned to youthful trainee status:

i. Before Oct. 1, 2004, if the person did not successfully petition for removal from the registry before July 1, 2011. MCL 28.722(b)(ii)(a).

ii. Before Oct. 1, 2004, if the person is convicted of a felony after July 1, 2011. MCL 28.722(b)(ii)(b).

d. A juvenile disposition if the judvenile was age 14 or older and was adjudicated for a tier 3 offense. MCL 28.722(b)(iii).

2. Registration Tiers.

a. Tier 1

i. Tier 1 offenders will only be on the law enforcement registry. MCL 28.728(4)(c).

ii. Tier offenders will register for 15 years. MCL 28.725(10).

III. Tier 1 offenses include;

1. MCL 750.145c(4) – Knowing possession of child sexually abusive materials. MCL 28.722(s)(i).

2. MCL 750.335a(2)(b) – Indecent exposure with fondling if the victim is a minor. A minor is a person under 18 years of age. MCL 28.722(s)(ii).

3. MCL 750.349b – Unlawful imprisonment if the victim is a minor. MCL 28.722(s)(iii).

4. MCL 750.520e – 4th degree criminal sexual conduct if the victim is 18 or older. MCL 28.722(s)(iv).

5. MCL 750.520g(2) – Assault with intent to commit criminal sexual conduct (contact) if the victim is 18 years of older. MCL 28.722(s)(iv).

6. MCL 750.539j – Video voyeurism if the victim is a minor. MCL 28.722(s)(v).

7. Any other violation that by its nature constitutes a sexual offense against a minor. MCL 28.722(s)(vi).

8. An offense committed by a sexually delinquent person. MCL 28.722(s)(vii).

9. An attempt or conspiracy to commit a tier 1 offense. MCL 28.722(s)(viii).

10. An offense substantially similar to a tier 1 offense under the law of the United States, another state or country, or tribal or military law. MCL 28.722(s)(ix).

b. Tier 2

i. Tier 2 offenders will be on the public registry. MCL 28.728(4).

ii. Tier 2 offenders will register for 25 years. MCL 28.725(11).

iii. Tier 2 offenses are:

1. A tier offender subsequently convicted of another tier 1 offense. MCL 28.722(t)(i).

2. MCL 750.145a – Soliciting a person under the age of 16 for an immoral purpose. MCL 28.722(u)(i).

3. MCL 750.145b – Soliciting a person under the age of 16 for an immoral purpose; second offense. MCL 28.722(u)(ii).

4. MCL 750.145c(2) or (3) – Creation or distribution of child sexually abusive material. MCL 28.722(u)(iii).

5. MCL 750.145d(1)(a) – Using the internet to commit various crimes against a minor. MCL 28.722(u)(iv).

6. MCL 750.158 – Sodomy against a minor MCL 28.722(u)(v).

a. Unless the victim was between 13-16, and

b. The defendant was not more than 4 years older than the victim, and

c. The victim consented to the violation, or

d. The victim was 16 or 17 and was not under the custodial authority of the defendant at the time of the violation, and

e. The victim consented to the violation

7. MCL 750.338, MCL 750.338a, or MCL 750.33b – Gross indecency against a minor. MCL 28.722(u)(vi).

a. Unless the victim was between 13-16, and

b. The defendant was not more than 4 years older than the victim, and

c. The victim consented to the conduct, or

d. The victim was 16 or 17 and was not under the custodial authority of the defendant at the time of the violation, and

e. The victim consented to the conduct.

8. MCL 750.448 – Soliciting a minor to become a prostitute. MCL 28.722(u)(vii).

9. MCL 750.455 – Pandering. MCL 28.722(u)(viii).

10. MCL 750.520c – 2nd degree criminal sexual conduct committed against a victim 13 years of age or older. MCL 28.722(u)(ix & x).

11. MCL 750.520e – 4th degree criminal sexual conduct committed against a victim between 13 and 18 years of age. MCL 28.722(u)(ix).

12. MCL 750.520g(2) – Assault with intent to commit criminal sexual conduct (contact) against a victim between 13 and 18 years of age. MCL 28.722(u)(ix).

13. An attempt or conspiracy to commit a tier 2 offense. MCL 28.722(u)(xi).

14. An offense substantially similar to a tier 2 offense under the law of the United States, another state or country, or tribal or military law. MCL 28.722(u)(xii).

c. Tier 3

i. Tier 3 offenders will be on the public registry MCL 28.728(4).

ii. Tier 3 offenders will register for life. MCL 28.725(12).

iii. Tier 3 offenses are;

1. A tier 2 offender subsequently convicted of another tier 1 or teir 2 offense. MCL 28.722(v)(i).

2. MCL 750.338, MCL 750.338a, MCL 750.338b – Gross indecency committed against a victim under the age of 13. MCL 28.722(w)(i).

3. MCL 750.349 – Kidnapping if the victim is a minor. MCL 28.722(w)(ii).

4. MCL 750.350 – Enticing a child under the age of 14. MCL 28.722(w)(iii.).

5. MCL 750.520b, MCL 750.520d, MCL 750.520g(1) – 1st degree criminal sexual conduct, 3rd degree sexual conduct, and assault with intent to commit sexual penetration. MCL 28.722(w)(iv).

a. Unless the victim was between 13-16, and

b. The defendant was not more than 4 years older than the victim, and

c. The victim consented to the conduct.

6. MCL 750.520c or MCL 750.520g – 2nd degree criminal sexual conduct or assault with intent to commit criminal sexual conduct (contact) against a victim under the age of 13. MCL 28.722(w)(v).

7. MCL 750.520e – 4th degree criminal sexual conduct if the defendant was over 17 and the victim is under 13. MCL 28.722(w)(viii).

8. An attempt to conspiracy to commit a tier offense. MCL 28.722(w)(vii).

9. An offense substantially similar to a tier 3 offense under the laws of the United States, another state or country, or tribal or military law. MCL 28.722(w)(viii).

3. Juvenile Offenders

a. Only juvenile offender who are 14 or older at the time of the offense are required to register, and for a tier 3 adjudication. MCL 28.722(b)(iii).

b. Juvenile offenders are only on the law enforcement registry. MCL 28.728(4)(b).

c. Juveniles convicted as an adult in circuit court are subject to adult registration rules. MCL 28.722(b)(i) & MCL 28.722(b)(iii).

d. Juveniles convicted in a designated proceeding in juvenile court are subject to adult registration rules. MCL 28.728.(4)(a).

4. Romeo and Juliet

a. If there is a dispute between the prosecution and defense regarding whether the defendant or juvenile is required to register because the defense claims the conduct falls within the Romeo and Juliet exception;

i. The court holds a post-conviction, pre-sentencing hearing or post-adjudication, pre-disposition hearing. MCL 28.723a(1).

ii. The defendant or juvenile must prove by a preponderance of the evidence that;

1. The victim was between the ages of 13 to 16.

2. The defendant or juvenile was not more than 4 years older than the victim.

3. The sexual conduct was consensual.

4. The victim was 16 or 17 and was not under the custodial authority of the defendant at the time of the violation, and

5. The victim consented to the conduct. MCL 28.723a(2).

iii. The rules of evidence, except those relating to privileges and the rape shield law, do not apply. MCL 28.723a(3).

iv. The victim has the right to attend and be heard, attend and be silent, or refuse to attend. MCL 28.723a(5).

v. The court’s decision is a final order, appealable by right to the Court of Appeals. MCL 28.723a(6).

5. Pending Cases – June 1, 2011

a. If a prosecution or juvenile proceeding is pending on July 1, the registration determination is made under Acts 17-19, and not the law in effect at the time of the offense. MCL 28.724(7).

6. Reporting Requirements

a. A tier 1 offender must report once a year between Jan. 1-15. MCL 28.725(7).

b. A tier 2 offender must report once a year between Jan. 1-15 and July 1-15. MCL 28.725a(3)(b).

c. A tier 3 offender must report quarterly between Jan. 1-15, April 1-15, July 1-15, and Oct. 1-15. MCL 28.725a(3)(c).

d. When the person reports they must review and confirm or change their registration information. If their appearance has changed, they must obtain an updated photo. MCL 28.725a(4) & (5).

7. Registration Fees

a. The fee is increased from $35 to $50. MCL 28.725a(6).

b. $30 must be forwarded to the Michigan State Police for deposit in the sex offenders registration fund. $20 is retained by the collecting agency. MCL 28.725b(1).

c. The fee can be waived for 90 days if the offender is indigent. MCL 28.725b(3).

d. An offender is indigent if he or she;

i. Was found indigent by a court within the last 6 months, or

ii. Receives assistance under the Department of Human Services food assistance program, or

iii. Has an annual income below the current federal poverty guidelines. MCL 28.722(h).

8. Homeless People

a. A homeless person registers in the city, village, or township where the person spends the majority of his or her time. MCL 28722(p).

9. Nonresident Registration

a. A nonresident person who works or attends post secondary school in this state has to register and comply with all reporting and change of work or school address requirements. MCL 28.723(1), MCL 28.724a & MCL 28 28.725(2).

b. A nonresident who commits a tier 3 offense in this state must initially register, but he or she is non required to comply with continuing Sex Offender Reporting Act reporting requirements. MCL 28.723(3).

10. Registry Information

a. The Act creates two registries. A registry with information that is available only to law enforcement, and a public registry that can be accessed online with less information. The following information is available on the law enforcement registry. Information on the public registry is in italics.

i. Offender’s legal name, any aliases, nicknames, ethnic, or tribal names or any other names by which the individual is or has been known. MCL 28.728(1)(a). MCL 28.728(2)(a).

ii. Social security number and any alleged social security numbers previously used by the offender. MCL 28.728(1)(c). MCL 728(2)(b).

iii. Date of birth and any alleged dates previously used by the offender. MCL 28.728(1)(c). MCL 28.728(2)(b).

iv. The address where the offender resides or will reside. MCL 28.728(1)(d). MCL 28.728(2)(c).

v. Name and address of any temporary lodging that will be used for more than 7 days. MCL 28.728(1)(e).

vi. Name and address of the offender’s employer. MCL 28.728(1)(f). MCL 28.728(2)(d).

vii. Name and address of any post-secondary school the offender is attending. MCL 28.728(1)(g). MCL 28.728(2)(e).

viii. All phone numbers registered to the offender or routinely used by the offender. MCL 28.728(1)(h).

ix. All email or instant message addresses assigned to or routinely used by the offender, including all login names or identifiers. MCL 28.728(1)(i).

x. The license plate number, registration number, and description of any motor vehicle, aircraft, or vessel owned or regularly operated by the offender, including the location at which the item is habitually stored or kept. MCL 28.728(1)(j). MCL 28.728(2)(f).

xi. Driver license or state personal ID car number. MCL 28.728(1)(k).

xii. A digital copy of the offenders passport and other immigration documents. MCL 28.728(1)(1).

xiii. Any occupational or professional licensing information. MCL 28.728(1)(1).

xiv. A brief summary of the conviction, including where it occurred and the original charge if the conviction was for a lesser offense. MCL 28.728(1)(n). MCL 28.728(2)(h).

xv. A complete physical description of the offender. MCL 28.728(1)(o). MCL 28.728(2)(h).

xvi. A photograph. MCL 28.728(1)(p). MCL 28.728(2)(i).

xvii. Fingerprints and palm prints. MCL 28.728(1)(q).

xviii. An electronic copy of the offender’s driver license or state ID card, including a photograph. MCL 28.728(1)(r).

xix. The law text for the offender’s registration offense. MCL 28.728(1)(s). MCL 28.728(2)(j).

xx. Any outstanding arrest warrant information. MCL 28.728(1)(t).

xxi. Offender’s tier classification and registration status. MCL 28.728(1)(u). MCL 28.728(2)(k) & (l).

xxii. An indicator whether a DNA profile has been entered in CODIS. MCL 28.728(1)(v).

xxiii. Offender’s complete criminal history, including dates of all arrests and convictions. MCL 28.728(1)(w).

xxiv. Offender’s Michigan Department of Corrections number, and the status of his or her parole, probation or release. MCL 28.728(1)(x).

xxv. Offender’s FBI number. MCL 28.728(1)(y).

xxvi. Whether the offender’s conviction has been set aside. MCL 28.728(10).

11. Updating Registration Information

a. An offender must immediately report the following changes in person to the registering authority.

i. A change of residence. MCL 28.725(1)(a).

ii. A change in place of employment, or discontinuance of employment MCL 28.725(1)(b).

iii. Enrolls in an institution of higher education, or discontinues enrollment. MCL 28.725(1)(c).

iv. A name change. MCL 28.725(1)(d).

v. Temporarily reside at a place other than his or her residence for more than 7 days. MCL 28.725(1)(e).

vi. Establishing an e-mail address. MCL 28.725(1)(f).

vii. Purchases or begins to regularly operate a vehicle, or discontinues ownership or operation. MCL 28.725(1)(g).

viii. When he or she plans to change residence to another state. MCL 28.725(6).

b. Immediately is defined as within 3 business days. MCL 28.722(g).

c. The registering authority is the law enforcement agency or sheriff’s office having jurisdiction over the offender’s residence, place of employment or institution or higher learning, or the nearest Michigan State Police post. MCL 28.722(o).

d. If an offender is moving out of the country, or will be traveling to another country for more than 7 days, he or she must notify the registering authority at least 21 days before moving or traveling. MCL 28.725(7).

12. Notification of New Reporting Requirements

a. The Michigan State Police must mail a notice to every registrant before July 1, 2011. MCL 28.725a(1).

13. Retroactive Registration Provisions

a. If a person was previously convicted for an offense for which registration would now be required, the person is not required to register, unless he or she is convicted of a felony after July 1, 2011. MCL 28.724(5).

14. Law Enforcement Responsibilities

a. The registering agency must do all of the following;

i. Verify registration information at time of reporting. MCL 28.725a(5).

ii. Determine whether the offender has absconded or is otherwise unavailable. MCL 28.728a(1)(a).

iii. If notified by another state, U.S. territory, or Indian tribe that an offender was supposed to appear, register, or update information, and the offender does not appear, the registering agency must notify the Michigan State Police. MCL 28.728a(1)(b).

iv. Revise the information in the law enforcement registry that the offender has absconded or otherwise cannot be located. MCL 28.728a(1)(c).

v. See an arrest warrant if the legal requirements for obtaining a warrant are satisfied. MCL 28.728q(1)(d).

vi. Enter the offender into the National Crime Information Center. MCL 28.728a(1)(e).

b. After receiving notification from the registering agency, the Michigan State Police must do all of the following;

i. Notify the state, territory, or Indian tribe that the offender failed to register. MCL 28.728a(2)(a).

ii. Notify the U.S. Marshall’s Service. MCL 28.728a(2)(a).

iii. Update the National Sex Offender Registry of the offender’s status as an absconder or cannot be located. MCL 28.728a(2)(c).

15. Penalties

a. A willful violation of the act is a felony, punishable by up to 4 years in prison, a $2,000 fine, or both. MCL 28.729(1)(a). It is an F felony under the sentencing guidelines. MCL 777.11b.

i. A second offense is a felony, punishable by up to 7 years in prison, a $5,000 fine, or both. MCL 28.729(1)(b). It is a D felony under the sentencing guidelines. MCL 777.11b.

ii. A third offense is a felony, punishable by up to 10 years in prison, a $10,000 fine, or both. MCL 28.729(1)(b). It is a D felony under the sentencing guidelines. MCL 777.11b.

b. A failure to report is a misdemeanor, punishable by up to 2 years in prison, a $2,000 fine, or both. MCL 28.729(2). It is an F felony under the sentencing guidelines. MCL 777.11b.

c. A willful failure to sign a registration form and notice is a misdemeanor, punishable by up to 93 days in jail, a $1,000 fine, or both. MCL 28.729(3).

d. A willful refusal or failure to pay the registration fee is a misdemeanor, punishable by up to 90 days in jail. MCL 28.729(4).

e. Divulging, using, or publishing non-public Sex Offender Registry Act information is a misdemeanor, punishable by up to 93 days in jail, a $1,000 fine, or both. MCL 28.730.

16. Counting the Registration Period

a. The registration periods for tier 1, 2, or 3 offenses excludes any periods of incarceration or civil commitment. MCL 28.725(13).

b. If a person is required to register after July 1, 2011, for a conviction that occurred prior to July 1, any time from the date of that conviction to the date of registration, less time spent incarcerated, will county toward the applicable registration period. MCL 28.275(14).

17. Expired Registration

a. If the Michigan State Police determines a person’s registration period has expired, or that the offender is no longer required to register, the Michigan State Police must remove the offender within 7 days after making that determination. MCL 28.728(9).

18. Petitions for Removal

a. A tier 1 offender with a clean record can petition for removal after 10 years. MCL 28.728c(1) & (12).

b. A tier offender with a clean record, who is on the registry for a juvenile adjudication, can petition after 25 years. MCL 28.728(2) & (13).

c. An offender who is on the registry under any of the following circumstances can petition immediately for removal from the registry. The court shall grant the petition if the offender proves any of the following. MCL 28.728c(3) & MCL 28.728c(14) & (15).

i. That he or she meets the Romeo & Juliet exception. MCL 28.728c(14)(a) & (b).

ii. That he or she was convicted of gross indecency or 2nd degree criminal sexual conduct by a department of corrections employee, the victim was 16 or older, the act was consensual, and the victim was not under the offender’s custodial authority. MCL 28.728c(14)(c).

iii. That he or she was under 14 at the tie of the offense, and was adjudicated as a juvenile. MCL 28.728c(15)(a).

iv. That he or she is on the registry for an offense that no longer requires registration. MCL 28.728c(15)(b).

1. Those offenses would be indecent exposure and juveniles adjudicated for an offense that is not on tier 3.

d. The petition is filed in the county of conviction, or if the offender was convicted in another state or territory, in the county of the offender’s residence. MCL 28.728c(4) & (7).

e. The prosecuting attorney must be served with the petition. MCL 28.728c(7).

f. A false statement in a petition is perjury. MCL 28.728c(6).

g. If the victim is known, the prosecuting attorney must notify the victim. MCL 28.728c(8).

i. The victim has the right to attend any hearing and make a statement. A victim cannot be required to attend a hearing against his or her will. MCL 28.728c(10).

h. The court may reduce the registration period to 10 years for a 1 offender or to 25 years for a juvenile offender if the court finds the following;

i. The appropriate time period has elapsed. MCL 728.8c(12)(a) & (13)(a).

ii. The offender has not been convicted of a felony. MCL 28.728c(12)(b) & (13)(b).

iii. The offender has not been convicted of a listed offense. MCL 28.728c(12)(c) & (13)(c).

iv. The offender has successfully completed probation, parole, or supervised release without any revocation. MCL 28.728c(12)(d) & (13)(d).

v. The offender successfully completed a sex offender treatment program. This requirement may be waived if such programming was not a condition of probation, parole, or supervised release. MCL 28.728c(12)(e) & (13)(e).

vi. The petition shall not be granted if the court determine that the offender is a continuing threat to the public. MCL 28.728c(11).

F. Victim Rights. 2011 PA 293-296. Effective April 1, 2012. Makes the following changes to the costs convicted defendants must pay.

1. Requires everyone convicted of a misdemeanors to pay a $75 victim rights assessment. MCL 780.905.

2. Removes the distinction between serious misdemeanors, specified misdemeanors, and other misdemeanors when assessing state minimum costs. Everyone convicted of a misdemeanor will be assessed $50 as a minimum state cost. MCL 769.1j; MCL 600.8381; MCL 712a.18md.

III. Vehicles

A. Authorized Emergency Vehicles. 2011 PA 231. Effective Nov. 22, 2011. Expands the definition of “authorized emergency vehicle” to include privately owned vehicles of volunteer members of an emergency rescue unit. MCL 257.2.

B. Commercial Motor Vehicles. 2011 PA 158-160. Effective Sept. 30, 2011. Makes the following changes to the Motor Vehicle Code.

1. Requires a resident holding a commercial driver’s license endorsement from another state to apply or a license transfer within 30 days of establishing residence. MCL 257.301(1).

2. Allows the Secretary of State to refuse to issue a commercial driver’s license if the person does not meet federal requirements or fails to present valid medical certification. MCL 257.303(6).

3. A person applying for a hazardous material endorsement must be approved by the Transportation Security Administration. MCL 257.306(6).

4. The Secretary of State must verify documents indicating a non-citizen’s legal presence. MCL 257.307(1)(b).

5. Increases the minimum civil fines for violating out of service orders to $2,500 for a first offense, $5,000 for a second offense on the operator, and from $2,750 to $25,000 on an employer who knowingly allows an employee to violate an out of service order. MCL 257.907(2).

C. Driver Responsibility Fees. 2011 PA 255. Effective Oct. 1, 2012. Removes the $150 driver responsibility fee for operating a vehicle without an operator’s license and the $200 fee for no proof of insurance. MCL 28.732a(2)(c) & (d).

D. Graduated Drivers Licenses. 2011 PA 124. Effective July 20, 2011. Level 2 restrictions were changed as follows;

1. Cannot operate a vehicle between 10 pm and 5 am except when driving to, from or in the course of employment, to or from an authorized activity, or accompanied by a parent, guardian or authorized person over age 21. MCL 257.310e.

2. Cannot operate at any time with more than 1 passenger under the age of 21 unless the additional passengers are family members, or it is part of employment, an authorized activity, or accompanied by a parent, guardian, or authorized person over the age of 21. MCL 257.310e.

E. Private Roads. 2011 PA 115. Effective July 20, 2011. Allows a county to contract with the owner of a private road for traffic enforcement on that road. MCL 257.601a.

F. School Bus Zones. 211 PA 59 & 60. Effective July 1, 2011. Make it a crime to commit a 3 point or higher moving violation in a school bus zone that results in injury or death. MCL 257.601b.

1. The crime is a misdemeanor, punishable by up to 1 year in jail, a $1,000 fine, or both, for an injury, and a felony, punishable by up to 15 years in prison, a $7,500 fine, or both, for a death. It is a C felony under the sentencing guidelines. MCL 777.12e.

G. Slasher Saw Tables. 2011 PA 151. Effective Sept. 21, 2011. Exempts a slasher saw table from having brakes under the Motor Vehicle Code. MCL 257.705(4).

IV. Miscellaneous

A. Alcohol. 2011 PA 27. Effective May 16, 2011. Allows local communities to continue to prohibit Sunday alcohol sales. MCL 436.2111.

B. Bullying. 2011 PA 241. Effective Dec 6, 2011. Requires every school district and public school academy to have a policy prohibiting bullying at school. MCL 380.1310b.

C. Children.

1. Adoption. 2011 PA 29-31. Effective May 29, 2011. Allows for a designee of the Superintendent of the Michigan Children’s Institute to consent to adoptions, marriages, guardianships, or emancipations of state wards.

2. Child Deaths.

a. 2011 PA 67. Effective June 28, 2011. Requires the Department of Human Services to notify the court, appropriate state legislators, and the children’s ombudsman whenever a child under the court’s jurisdiction dies. MCL 722.627k.

b. 2011 PA 68. Effective June 28, 2011. Requires a citizen review panel to review the circumstances of the death of every child who is under court jurisdiction. MCL 722.627b.

c. 2011 PA 69 & 89. Effective June 28, 2011. Requires the Department of Human Services to establish a child death registry containing information on children who die while under court jurisdiction, or from abuse and neglect in situations where the parent had at least one Child Protective Services complain within the previous 2 years, or when the child was within the jurisdiction of DHS in the previous 12 months. MCL 722.627b.

d. 2011 PA 70. Effective June 28, 2011. Allows a court within jurisdiction over a child’s death to access private central registry reports. MCL 722.627.

e. 2011 PA 89. Effective July 15, 2011. Requires a representative of the local court to be on the child fatality review team. MCL 722.627b.

3. Hunting. 2011 PA 109 & 120. Effective Sept. 1, 2011. Allows children under the age of hunt 10 to hunt with a mentored youth hunting license. MCL 333.43250.

4. Working. 2011 PA 197. Effective Oct. 18, 2011. Increases the number of hours a minor can work while attending school to 24 hours. MCL 409.111.

5. Youth Adult Foster Care. 2011 PA 225-230. Effective Nov. 22, 2011. Creates the “Young Adult Voluntary Foster Care Act.” The Act allows the Department of Human Services to continue to provide services to young adults between the ages of 18-21 who would otherwise age out of the foster care system at age 18.

D. Jails. 2011 PA 211. Effective Nov. 8, 2011. Authorizes a sheriff to place multiple inmates in a cell provided there is a 25 square feet per inmate, or 35 square feet per inmate if the inmate will be in the cell for 10 or more hours a day. The cells must have been constructed after Jan. 1, 1988. MCL 791.262c.

E. Lien. 2011 PA 198-199. Effective Oct. 18, 2011. Requires the Michigan State Police and the Department of Human Services to develop a computer interface by July 1, 2013, that would allow each department to determine if a person wanted on a felony warrant is on public assistance. MCL 400.10c.

F. Michigan Public Safety Communications System. 2011 PA 146. Effective Sept. 21, 2011. Allocates $7,000,000 to the Michigan State Police from the 9-1-1 fund in fiscal year 2011-2012 to fund the Department’s costs for the Michigan Public Safety Communications System. MCL 484.1408(6).

G. Prescriptions. 2011 PA 108. Effective July 20, 2011. Allows practitioners access to the electronic system for monitoring schedule 2-5 drugs to determine if prescriptions authorized by that person have been dispensed. MCL 333.733a(2)(h).

Contact ArborYpsi Law at 734-883-9584 or at bernstein@arborypsilaw.com to speak with attorney Sam Bernstein

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