New Criminal Laws in 2011 Part 1

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).

• Part 2
• Part 3