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2012 Michigan Criminal Law Legislation Part 3

E. Criminal Sexual Conduct. 2012 PA 372. Effective March 28, 2013. Prohibits sexual assaults by foster care employees on foster car residents.

1. Amends 1st degree and 2nd degree criminal sexual conduct to prohibit employees, contractual service providers, volunteers of a child care organization, or the person licensed to operate a foster family home or a foster family group home from having sex with residents between the ages of 13 to 16. MCL 750.520b(1)(b)(vi). & MCL 750.520c(1)(b)(vi).

2. Amends 3rd degree and 4th degree criminal sexual conduct to to prohibit employees, contractual service providers, volunteers of a child care organization, or the person licensed to operate a foster family home or a foster family group home from having sex with residents age 16 or older. MCL 750.520d(1)(g) & MCL 750.520e(1)(h).

a. Child care organization, foster family home, and foster family group are defined in MCL 722.111.

F. Emergency Removal. 2012 PA 163. Effective June 14, 2012. Allows a police officer to immediately take a child at risk of imminent harm into custody. MCL 712a.14a. Allows the Department of Human Services to obtain emergency removal orders by electronic means. MCL 712a.14b.

G. Juvenile Competency. 2012 PA 540-541. Effective March 28, 2012. Creates standards and procedures for determining juvenile competency.

1. A juvenile 10 years or older is presumed competent. A juvenile under 10 is presumed incompetent. MCL 712a.18n(1).

a. A juvenile is incompetent if the juvenile, based upon age appropriate norms, lacks a reasonable degree of rational and factual understanding of the proceeding, or is unable to do one or more of the following;

i. Consult with and assist his or her attorney in preparing his or her defense in a meaningful manner.

ii. Sufficiently understand the charges against him or her. MCL 712a.1(1)(g).

2. A competency hearing may be ordered at the request of the parties or on the court’s own motion. MCL 712a.18n(2).

3. The competency evaluation must be conducted by a qualified juvenile forensic mental health examiner. MCL 712a.180.

a. MCL 712a.1(1)(n) for definition of qualified juvenile forensic mental health examiner.

4. The parties must supply the forensic examiner with all materials relevant to competency within 10 days of the court order for an evaluation. MCL 712a.18p.(1-4).

5. The evaluation must be submitted to the court within 30 days of the court order for an evaluation. MCL 712a.18p(5). The report must include the following information.

a. A description of the nature, content, and extent of the examination, including, nut not limited to, all of the following;

i. A description of assessment procedures, techniques, and tests used.

ii. Available medical, educational, and court records reviewed.

iii. Social, clinical, developmental, and legal history available.

b. A clinical assessment, that includes, but is not limited to, the following;

i. A mental status examination.

ii. The diagnosis and functional impact of mental illness, developmental disability, or cognitive impairment. If the juvenile is taking medication, the impact of the medication on the juvenile’s mental state and behavior.

iii. An assessment of the juvenile’s intelligence.

iv. The juvenile’s age, maturity level, developmental stage, and decision making abilities.

v. Whether the juvenile has an other factor that affects competence.

c. A description of abilities and deficits in the following mental competency functions related to the juvenile’s competence to proceed.

i. The ability to factually as well as rationally understand and appreciate the nature and object of the proceedings, including, but not limited to, all of the following;

A. An ability to understand the role of the participants in the court process, including, the roles of the judge, the juvenile’s attorney, the probation officer, witnesses, and the jury, and to understand the adversarial nature of the process.

B. An ability to appreciate the charges and understand the seriousness of the charges.

C. An ability to understand and realistically appraise the likely outcomes.

D. An ability to extend thinking into the future.

ii. The ability to render meaningful assistance to the juvenile’s attorney in the preparation of the case, including, but not limited to, all of the following;

A. An ability to disclose to an attorney a reasonably coherent description of facts and events pertaining to the charge, as perceived by the juvenile.

B. An ability to consider the impact of his or her actions on others.

C. Verbal articulation abilities or the ability to express himself or herself in a coherent and reasonable manner.

D. Logical decision-making abilities, particularly, multi-factored problem-solving or the ability to take several factors into consideration in making a decision.

E. An ability to reason about available options by weighing the consequences, including weighing pleas, waivers, and strategies.

F. An ability to display appropriate courtroom behavior

6. The court shall hold a hearing within 30 days of receiving the report. MCL 712a.18q(1).

7. If the juvenile is found incompetent and there is a substantial probability that the juvenile will remain incompetent for the foreseeable future or for more than the 120 days allowed for restoration of competency, the charges shall be dismissed with prejudice. MCL 712a.18q(2); MCL 712a.18s(2)(b) & (3).

8. If the juvenile is found incompetent and the court finds the juvenile may be restored to competency within 120 days the court;

a. Shall dismiss if it is a traffic offense or non-serious misdemeanor. MCL 712a.18s(1)(a).

b. May dismiss the case o the charge is a serious misdemeanor. MCL 712a.18s(1)(b).

c. Suspend the proceedings and issue an initial 60 day restoration order. MCL 712a.18s(1)(c).

d. If the juvenile is not restored to competency within 60 days, and the juvenile does not turn 18, an additional 60 day restoration order may be entered. MCL 712a.18s(2) & (3).

e. If the juvenile is not restored to competency the court shall dismiss the charges and determine whether to direct the filing of civil commitment proceedings against the juvenile. MCL 712a.18s(4).

f. If the juvenile is unable to be restored to competency hearing due to serious emotional disturbance, the court may order that mental health services be provided to the juvenile for 60 days, plus an additional 60 day renewal period. MCL 712a.18s(5-6).

9. Any statements or evidence obtained during a competency evaluation are inadmissible for any purpose other than to determine competency. MCL 712a.18r(1-4).

a. All competency reports shall be sealed. MCL 712a.184(5).

H. Juvenile Expungement. 2012 PA 527. Effective Dec. 28, 2012. Makes the following changes to the juvenile expungement statute;

2. A juvenile with more than 3 adjudications, or more than 1 felony adjudications is not eligible to have any offenses expunged. MCL 712a.18e(1).

3. Multiple adjudications arising out of a series of acts that were in a continuous time sequence of 12 hours or less and that display a single intent and goal constitute one offense. MCL 712.18e(1).

a. Unless any of the adjudications was for;

i. An assaultive crime,

ii. An offense involving the use or possession of a weapon,

iii. An offense with the maximum penalty of 10 or more years.

4. A petition may be filed within 1 year after the completion of the disposition, or at age 18, whichever occurs later. MCL 712.18e(3).

I. Michigan Indian Family Preservation Act. 2012 PA 565. Effective Jan. 2, 2013. The Act requires special procedures involving an Indian child in the following procedures;

1. Status offenses under the juvenile code.

2. Consent and contested Adoption Proceedings.

3. Voluntary and involuntary guardianships.

4. Emergency removals.

5. Child protective proceedings.

6. Termination of parental rights.

J. Parenting Time. 2012 PA 600. Effective Jan. 1, 2013. Prohibits exercising parenting time in a country that is not a party to the Hague convention on the civil aspects of international child abduction. MCL 722.7a(9).

K. Paternity. 2012 PA 159-162. Effective Jan. 9, 2012. The “Revocation of Paternity Act.”

L. Sexual Abuse Task Force. 2012 PA 593-595. Effective Jan. 9, 2013.

1. Creates a task force on the prevention of sexual abuse of children in the Department of Human Services. MCL 722.632b.

a. A model for the protocol for the identification, investigation, and prevention of child sexual abuse. MCL 722.632b)3)(I).

b. Recommendations and guidelines for school policies on age appropriate education for children on sexual abuse and how the school will respond to students affected by sexual abuse. MCL 722.632b(3)(e-h).

2. Authorizes school districts and public school academies to adopt policies that are substantially consistent with the model policy and guidelines developed by the task force. MCL 380.1505.

III. Controlled Substances

A. Emergency Scheduling. 2012 PA 180-182. Effective June 19, 2012. Authorizes the Director of the Department of Community Health to issue an emergency rule scheduling a substance as a controlled substance.

B. Medical Marihuana.

1. Arrest Immunity. 2012 PA 512. Effective April 1, 2013. A patient or caregiver’s privilege only applies if they present their registry identification card and a valid driver license or government issued ID that has a photograph. MCL 333.26424.

2. Bona Fide Physician-Patient Relationship. 2012 PA 512. Effective April 1, 2013. Defines the relationship to mean a treatment or counseling relationship with all of the following;

a. The doctor has reviewed all relevant medical records and completed a full assessment of the patient’s medical history and current medical condition, including a relevant, in person, medical evaluation. MCL 333.26423(a)(1).

b. Records are created and maintained in accordance with medically accepted standards. MCL 333.26423(a)(2).

c. The doctor has a reasonable expectation to provide follow up care to the patient to monitor the efficacy of the treatment. MCL 333.26423(a)(3).

d. With the patient’s permission, the doctor informs the patient’s primary care physician regarding the patient’s debilitating medical condition and certification for medical marihuana. MCL 333.26423(a)(4).

e. The doctor’s certification must state that he or she did a full assessment of the patient’s medical history and current medical condition, including a relevant, in person, medical evaluation. MCL 333.26423(m).

3. Caregivers. 2012 PA 512. Effective April 1, 2013. Prohibits the registration of caregivers who have felony conviction. MCL 333.26423(h).

a. For 10 years if they have a felony conviction.

b. Permanently if they have any felony conviction for an assaultive crime as defined in MCL 770.9a or one involving illegal drugs.

4. Enclosed Locked facility. 2012 PA 512. Effective April 1, 2013. Defines an enclosed locked facility for outdoors. MCL 333.26423(d).

a. The plants are not visible to the naked eye when viewed from ground level or a structure on adjacent property.

b. They must be in a stationary structure that is enclosed on all sides except for the base by chain link fencing, wooden slats, or similar material that is anchored to the ground.

c. It must be on land owned or leased by either the registered patient or registered care giver.

d. It must have locks or other security devices that restrict access to only the patient or caregiver.

e. A vehicle qualifies only when transporting plants to a new permanent location, and only if no one other than the patient or caregiver is in the vehicle.

5. Medical Review Panel. 2012 PA 514. Effective April 1, 2013. Requires the appointment of a panel to review petitions to add medical conditions to the list of debilitating medical conditions. MCL 333.26426(k).

6. Personal Protection Insurance Benefits. 2012 PA 542. Effective Jan. 2, 2013. An insurer is not required to provide no fault insurance coverage for the medical use of marihuana. MCL 500.3107.

7. Proof of Residency. 2012 PA 514. Effective April 1, 2013. Requires applicants to provide proof of Michigan residency. MCL 333.26426(a)(6).

8. Sentencing Guidelines. 2012 PA 513. Effective April, 2013. Makes selling marihuana in violation of the Michigan Medical Marihuana Act a G felony under the sentencing guidelines. MCL 777.13n.

9. Transporting. 2012 PA 460. Effective Dec. 27, 2012. Medical marihuana must be enclosed in a case and carried in the trunk, or if there is no trunk, the case can’t be readily accessible from the interior of the vehicle.

a. A violation is a misdemeanor punishable by up to 93 days in jail, a $500 fine, or both. MCL 750.474.

10. Worker’s Compensation. 2012 PA 481. Effective Dec. 28, 2012. Precludes worker’s compensation payments for medical marihuana treatment. MCL 418.315a.

C. Prescriptions.

1. Electronic Prescription System. 2012 PA 44. Effective March 27, 2012. Allows health care insurers to access the state’s electronic prescription system to monitor patient care and to prevent fraud. MCL 333.7333a.

2. Unused Prescriptions. 2012 PA 383-384. Effective Dec. 19, 2012. Creates the program for the utilization of unused prescription drugs. MCL 333.17775.

D. Synthetic Marijuana and Bath Salts. 2012 PA 183. Effective July 1, 2012. Creates new definitions of synthetic cannabinoids and synthetic cathinones as schedule 1 substances. MCL 333.7212(1)(e) & (x).

1. Both definitions include a very broad catch all provision to cover new synthetic chemical compounds that act like the specifically described compounds. MCL 333.7212(1)(e)(x) and MCL 333.7212(1)(x).

2. Makes it a felony punishable by up to 4 years in prison, a $20,000 fine, or both to sell a product that is represented to have the same effect as a schedule 1 substance. MCL 333.7417.

IV. Criminal Procedure

A. Animal Fighting. 2012 PA 352. Effective Dec. 13, 2012. Allows any place used for a violation of MCL 750.49, animal fighting, to be declared a nuisance. MCL 600.3801.

B. Biometric Data. 2012 PA 374. Effective Dec. 14, 2012. Allows the Central Record Division of the Michigan State Police to obtain and maintain biometric data on arrested and convicted individuals.

1. Biometric data includes;

a. Fingerprint and palm prints. MCL 28.241a(b)(i) & (ii).

b. Digital images recorded during the arrest or booking process. MCL 28.241a(b)(iii).

c. All descriptive data associated with identifying marks, scars, amputations, and tattoos. MCL 28.241a(b)(iv).

C. Boot Camps. 2012 PA 259. Effective July 2, 2012. Eliminates the sunset on the prison boot camp program. MCL 791.234a.

D. Deferred Convictions. 2012 PA 547-550. Effective April 1, 2013. Standardizes the conviction deferral procedures for drug treatment courts, parental kidnapping, section 7411, and domestic violence deferrals.

1. All proceedings become confidential when deferred status is granted.

2. If charges are dismissed, the Michigan State Police will keep a non-public record. The record can be accessed by the following;

a. Courts, law enforcement, and prosecutors for use in the performance of their duties.

b. TO show whether a defendant has previously been granted a deferral and dismissal.

c. By the Department of Corrections for ascertaining pre-employment criminal history, or criminal history of a current employee.

d. By the Department of Human Services for enforcing child protection laws or vulnerable adult protection laws, or for ascertaining pre-employment criminal history of a person who will be engaged in enforcing those laws.

E. Interrogations. 2012 PA 479. Effective March 28, 2013. Requires recording of in-custody interrogations in the following circumstances;

1. The person must be in custody in a place of detention for a major felony. MCL 763.7.

a. A place of detention means a police station, correctional facility, prisoner holding facility, or another governmental facility where an individual may be held in connection with a criminal charge. MCL 763.7(f).

b. A major felony means 3rd degree criminal sexual conduct or a felony with a maximum penalty with a maximum penalty of 20 years or more. MCL 763.7(d).

2. Law enforcement does not have to inform the person that the interrogation is being recorded, and can record the interrogation over the person’s objection. MCL 763.8.

3. The defense is entitled to a copy of the recording. The court cannot require the prosecution to prepare transcripts. MCL 763.8(5).

4. The recording is exempt from Freedom of Information Act until conviction or acquittal. MCL 763.8(6).

5. The failure to record a statement does not require its exclusion. The jury will receive a special instruction regarding the failure to record. MCL 763.9.

6. Within 120 days of March 28, 2013, the Michigan Commission on Law Enforcement Standards must develop standards for the recording process and equipment. It must also determine the cost of funding the equipment. MCL 763.11(1).

7. If the legislature does not appropriate funds for the equipment, then an agency without appropriate equipment is not required to record. MCL 763.11(2 &3).

8. If funds are appropriated, the local agency must implement recording within 120 days of receiving the funds. MCL 763.11(3).

9. If an agency already has appropriate equipment, then an agency must implement recording within 60 days of the adoption of the MCOLES standards. MCL 763.11(4).

F. Minor in Possession. 2012 PA 125. Effective June 1, 2012. Counts a successful minor in possession deferral as a prior offense for enhancement purposes. MCL 436.1703(4). Provides immunity from a minor in possession charge under the following circumstances;

1. The minor voluntarily presents himself or herself to a health facility for treatment. MCL 436.1703(10)(a).

2. The minor accompanies another minor who voluntarily presents himself or herself to a health facility for treatment. MCL 436.1703(10)(c).

3. The minor initiates contact with a peace officer or emergency medical services personnel for the purpose of obtaining medical assistance for a legitimate health care concern. MCL 436.1703(10)(c).

4. If the minor is under 18, the health facility must notify his or her parents or guardian. MCL 436.1703(11).

G. Notary Public. 2012 PA 425. Effective Dec. 21, 2012. Requires a notary public to notify the Secretary of State within 10 days of being convicted of a crime. MCL 55.301.

H. Parolee Searches. 2012 PA 624. Effective Jan. 9, 2013. Requires every parolee as a condition of parole to consent to a search of his or her person or property upon demand by a peace officer or a parole officer. MCL 791.236(19).

1. Consent does not authorize a search that is conducted with the sole intent to harass or intimidate.

I. Security Guards. 2012 PA 591. Effective March 28, 2013. Requires private security guards to notify law enforcement if they reasonably suspect the following crimes have been committed. MCL 338.1067a.

1. An assaultive crime as defined in MCL 770.9a.

2. Child sexually abusive activity. MCL 750.145c.

3. Surveilling an unclothed person. MCL 750.539j.

J. Statute of Limitations. 2012 PA 363. Effective March 28, 2013. Extends the statute of limitations for kidnapping, extortion, assault with intent to commit murder, attempted murder, manslaughter, or 1st degree home invasion under the following circumstances. MCL 767.24.

1. If the offense was reported to the police within 1 year of the commission of the crime, and the perpetrator s unknown, the 10 year statute of limitations doesn’t start until the perpetrator’s legal name is known.

K. Swift and Sure Sanctions. 2012 PA 616-617. Effective Jan. 1, 2013. Creates the “Probation Swift and Sure Sanctions Act” to apply to felony probationers.

1. Places all Court of Appeals fees in a fund for grants to circuit court that implement a program under this act. MCL 600.321. SCAO will administer the fund.

2. Authorizes SCAO to develop model programs.

3. Program requirements are;

a. Probationers must be informed of the terms of their probation and consequences for violations.

b. Probationers must be closely monitored.

c. Every violation must be reported to the court.

d. Probationers must be arrested as soon as a violation has been detected and brought before the court within 72 hours.

e. There must be an imposition of a SCAO approved sanction.

f. Continued violations are to be addressed by increasing sanctions.

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