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2012 Michigan Criminal Law Legislation Part 4

V. Elder Abuse

A. Annuities. 2012 PA 544. Effective June, 2013. Regulates annuity sales to make sure the product is suitable to the purchaser.

1. Requires agents to complete an approved training course before selling annuities. MCL 500.4160.

2. Requires an agent or insurer to obtain information from the purchaser to determine whether the annuity would be suitable for him or her. MCL 500. 4155(1).

3. Precludes an insurer from issuing an annuity unless it has a reasonable basis to believe the annuity is suitable based upon the suitability information obtained from the purchaser. MCL 500.4155(3).

4. Requires insurers to develop a review process to insure that an annuity is suitable for the purchaser before issuing the contract. MCL 500.4158.

B. Conservator Bonds. 2012 PA 173. Effective June 19, 2012. 2012 PA 210. Effective Oct. 1, 2012.

1. Requires a guardian ad litem to report to the court the amount of cash and property readily convertible into cash that is in the individual’s estate. MCL 700.5305.

2. Requires a conservator to obtain a bond if the amount of cash and property readily convertible into cash exceeds the administration limits of MCL 700.3982. MCL 700.5410. Exceptions are;

a. The estate contains no property readily convertible to cash and the cash is in a restricted account with a financial institution. MCL 700.5410(1)(a).

b. The conservator has trust powers under the Banking Code. MCL 700.5410(1)(b).

c. Requiring a bond would impose a financial hardship on the estate. MCL 700.5410(1)(c).

d. The court states reasons on the record why a bond is unnecessary. MCL 700.5410(1)(d).

C. Criminal Complaints. 2012 PA 177. Effective June 19, 2012. Prohibits a magistrate from requiring a vulnerable adult to personally affirm a criminal complaint. MCL 764.1a.

D. Disinheriting the Abuser. 2012 PA 173. Effective June 19, 2012. A person who is convicted of a felony involving the abuse, neglect, or exploitation cannot inherit from his or her victim. MCL 700.2802-2404.

1. Abuse, neglect, or exploitation is defined as;

a. Child abuse. MCL 750.136b.

b. Vulnerable adult abuse. MCL 750.145m to MCL 750.145r.

c. Financial exploitation. MCL 750.147a.

d. An offense involving domestic violence as defined by MCL 768.27b.

e. A criminal act that constitutes abuse, neglect, or exploitation as defined in MCL 400.11.

2. These provisions don’t apply if the decedent executes a document after the crime and expresses a specific intent to allow the felon to inherit. MCL 700.2803(7).

E. Elder Death Review Teams. 2012 PA 171. Effective June 19, 2012. Allows a county medical examiner to establish an elder and vulnerable adult death review team and to refer cases to the team for its review. MCL 52.201c(2) & MCL 52.203(4).

1. Team members include;

a. Geriatric care specialists

b. Long term care health professionals

c. State and local law enforcement representatives.

d. Prosecutor’s office

e. Department of Human Services representatives involved with Adult Protective Services, adult foster care homes, and homes for the aged.

F. Financial Exploitation. 2012 PA 168, 169, & 172. Effective June 19, 2012.

1. Increases the penalties for embezzling from a vulnerable adult.

a. If the property has a value of $50,000 or more, by less than $100,000, it is a felony, punishable by up to 15 years in prison, a $15,000 fine / 3 times the value of the property, or both. MCL 750.174a(6). It is a C felony under the sentencing guidelines. MCL 777.16o.

b. If the property has a value of $100,000 or more, it is a felony, punishable by up to 20 years in prison, a $50,000 fine / 3 times the value of the property, or both. MCL 750.174a(7). It is a B felony under the sentencing guidelines. MCL 777.16o.

2. Amends the fraudulently obtaining a signature statute to eliminate the requirement that the signature relate to a financial document. MCL 750.273.

G. Medical Alert Act. 2012 PA 176. Effective June 19, 2012. Creates the “Mozelle senior or vulnerable adult medical alert act.”

H. Model Investigative Protocol. 2012 PA 175. Effective June 19, 2012.

1. Requires the Adult Protective Services to conduct an in person interview with an allegedly vulnerable adult. MCL 400.11b(9).

2. Requires the Michigan State Police, Attorney General, Department of Human Services, and the Office of Services to the Aging and a long term care provider representative to develop a model protocol for the investigation of vulnerable adult abuse. MCL 400.11(9).

I. Mortaging / Pledging Property. 2012 PA 173. Effective June 19, 2012.

a. Precludes a conservator from mortgaing, pledging, or allowing a lien to be placed on the protected individual’s property without a court order. MCL 700.5423(3).

b. Unless the conservator has filed a copy of the court order with the register of deeds, or provided a copy to the purchaser, mortgagee, or lien holder, they cannot presume that the conservator had the power to sell, mortgage, or pledge the property. MCL 700.5422(3).

J. Nursing Home Reports. 2012 PA 174. Effective June 19, 2012.

1. Requires a nursing home employee to report suspected abuse directly to the Department of Community Health and their administrator. MCL 333.21771(1).

2. Requires the nursing home administrator to report the suspected abuse to both the Department of Community Health and a local law enforcement agency. MCL 333.21771(1).

a. If the abuse involved serious bodily injury to the patient, the report must be made within 2 hours. MCL 333.21771(8)(a).

b. All other abuse must be report within 24 hours. MCL 333.21771(8)(b).

K. Power of Attorney. 2012 PA 141. Effective May 22, 2012. Requires a person given a power of attorney to acknowledge the following limitations on his or her power. MCL 700.5501(4).

1. Except as provided in the durable power of attorney, to act in accordance with the standards of care applicable to fiduciaries acting under durable powers of attorney.

2. To take reasonable steps to follow the instructions of the principal.

3. Upon request of the principal, to keep the principal informed of his or her actions. To provide an accounting to the principal upon request.

4. To not make a gift from the principal’s property, unless provided for in the durable power of attorney or by judicial order.

5. Unless provided in the durable power of attorney or by judicial order, to not create an account or other asset in joint tenancy between the principal and attorney.

6. To maintain records of transaction as attorney-in-fact, including receipts, disbursements, and investments.

7. To be liable for any damage or loss to the principal, and to be subject to any other available remedy, for breach of fiduciary duty owed to the principal. In the durable power of attorney, the principal may exonerate him or her of any liability to the principal for breach of fiduciary duty except for actions committed in bad faith or with reckless indifference. An exoneration clause is not enforceable if inserted as the result of any abuse of a fiduciary or confidential relationship to the principal.

8. To be subject to civil or criminal penalties for violation of his or her duties to the principal.

L. Protected Individual’s Bill of Rights. 2012 PA 173. Effective June 19, 2012. Creates 33 specific rights for a protected individual and requires SCAO and the Office of Services to the Aging to prepare a form to be used to provide notice of those rights. MCL 700.5306a.

M. Testimonial Protections. 2012 PA 170. Effective June 19, 2012. Provides the following protections for vulnerable adults in some criminal prosecutions;

1. The ability to use anatomically correct dolls. MCL 600.2163a(3).

2. The availability of a support person. MCL 600.2163a(4).

3. To have a video recorded statement considered by the court in non-testimonial proceedings. MCL 600.2163a(5-8).

4. To exclude the public from the courtroom during the victim’s testimony. MCL 600.2163a(14-17).

5. To seat the defendant as far away from the witness stand as is reasonable, so that he or she is not directly in front of the victim. MCL 600.2163a(14-17).

6. To testify outside the presence of the defendant by closed circuit television or other electronic means. The Court must make a finding that the victim will be psychologically or emotionally unable to testify in court. MCL 600.2163a(18-19).

7. Prosecutions covered include; MCL 600.2163a(2)(b).

a. Any assaultive crime listed in MCL 770.9a.

b. Home invasion under MCL 750.110a.

c. Vulnerable adult abuse under MCL 750.145n, MCL 750.145o, and MCL 750.145p.

d. Embezzlement or financial exploitation under MCL 750.174 & MCL 750.174a.

VI. Vehicles

A. Cell Phones. 2012 PA 592. Effective March 28, 2013. Prohibits a person with a level 1 or 2 graduated license from using a cell phone while driving. MCL 257.602c.

1. Violations are civil infractions.

2. Emergency use or the use of a voice operated system that is integrated into the vehicle are not prohibited.

B. Commercial Drivers’ Licenses. 2012 PA 306. Effective Oct. 1, 2012. Requires certain license sanctions for commercial drivers’ license violations to run consecutively to other CDL sanctions. MCL 257.319b.

C. Driver Responsibility Fees. 2012 PA 203. Effective June 27, 2012. Gives a driver three chances to establish a payment schedule and lift his or her license suspension. MCL 257.732a(5).

D. Motorcycle Helmets. 2012 PA 98. Effective April 13, 2012. Allows motorcycle operators age 21 or older to ride without a helmet if;

1. They have had a motorcycle endorsement for 2 or more years or have passed a motorcycle safety course, and;

2. They carry $20,000 or more in first party medical insurance. MCL 257.658.

E. Open Intoxicant in a Vehicle. 2012 PA 306. Effective Oct. 1, 2012. Specifies that an open alcohol container can be stored in a vehicle without a trunk by placing it in a locked glove compartment, or behind the last upright seat, or in an area not normally occupied by the operator or passenger. MCL 257.624a(2).

F. Operating While Impaired.

1. High Blood Alcohol Ordinances. 2012 PA 7-11. Effective February 15, 2012. Allows cities, townships, and villages to enact a high BAC ordinance with a maximum penalty of 180 days. MCL 117.3; MCL 42.21; MCL 41.181; MCL 66.2.

2. Huffing. 2012 PA 543. Effective March 31, 2013. Precludes operating while intoxicated or impaired by any intoxicating substance. MCL 257.625(1-3).

a. Intoxicating substance means any substance, preparation, or a combination of substances and preparations other than alcohol or a controlled substance that is either;

i. Recognized as a drug in official U.S. pharmacopoeias or the official national formulary, or

ii. A substance, other than food, taken into a person’s body, including, but not limited to, fumes or vapors, that is used in a manner or for a purpose for which it was not intended, and that may result in a condition of intoxication. MCL 257.625(25)(a).

G. Physician Reports. 2012 PA 354-355. Effective Dec. 13, 2012. Allows a physician or optometrist to submit a confidential report to the Secretary of State that it is unsafe to allow a person to continue to drive.

H. Recreational Vehicles. 2012 PA 80. Effective April 11, 2012. Limits the length of an RV plus trailer to 65 feet. If the operator has a commercial motor vehicle designation, the length can be 75 feet. MCL 257.719.

I. Restricted Licenses. 2012 PA 306. Effective Oct. 1, 2012.

1. Allow more destination to which a driver with a restricted license may travel to include court hearing, medical treatment, ignition interlock service provider, and court-ordered community service. MCL 257.304(4).

2. An operator with a restricted license must carry proof of destination and hours of employment, class, or other location and to produce it upon the request of a peace officer. MCL 257.304(5).

3. Prohibits a hearing officer from granting a restricted license until the offender has operated with an ignition interlock device for not less than 1 year and has satisfied other statutory and rule requirements. MCL 257.304(6).

4. A certificate of completion from DWI/sobriety program shall be considered positive evidence of the offender’s abstinence while a program participant. MCL 257.304(7).

J. Snow Removal Vehicles. 2012 PA 262. Effective July 2, 2012. Requires commercial snow removal vehicles to have a flashing, rotating, or oscillating yellow or amber light. MCL 257.628c.

1. A violation is a misdemeanor, punishable by up to 90 days in jail, a $500 fine, or both.

VII. Victim Rights

A. Parole. 2012 PA 564. Effective March 28, 2013. Allows any victim of the defendant’s course of conduct the following post-conviction rights;

1. Notice that the defendant has escaped. Notice shall be given within 24 hours of the reported escape. MCL 780.770.

2. Notice of any parole or commutation hearing. MCL 780.719(e).

3. Notice of the right to address the parole board and present exhibits or other documentary evidence. MCL 780.719(e).

4. Notice of whether a prisoner or parolee has died. MCL 780.719(n).

B. Prisoners Possessing Victim Items. 2012 PA 598. Effective March 28, 2013. Upon a victim’s request, the Department of Corrections must confiscate any of the following items possessed by a prison. MCL 791.269.

1. Any item belonging to the victim or that used to belong to the victim.

2. Any photograph, drawing, or other visual image or representation of the victim.

C. Privacy for Child Victims. 2012 PA 457. Effective 31, 2012. Makes the following information exempt from Freedom of Information Act for victims of child abuse, criminal sexual conduct, assault with intent to commit criminal sexual conduct. or a similar crime if the victim was under 18 years of age. MCL 780.758.

1. The victim’s name and address.

2. The name and address of an immediate family member or relative of the victim who has the same surname.

3. Any other information that would tend to reveal the identity of the victim, including a reference to the victim’s familial or other relationship to the accused.

VIII. Miscellaneous

A. Alcohol. 2012 PA 82. Effective April 11, 2012. Allows a liquor license to be revoked for 3 violations of furnishing alcohol to a minor within a 12 month period. MCL 436.1501.

B. Assistance Prosecutors. 2012 PA 72-73. Effective April 6, 2012. Removes the requirement of judicial approval of assistance prosecutor appointments. MCL 776.18 & MCL 49.41.

C. Burning Household Waste. 2012 PA 102. Effective April 19, 2012. Prohibits the open burning of household waste that contains plastic, rubber, foam, chemically treated wood, textiles, electronics, chemicals, or hazardous materials. The violation is a civil infraction. MCL 324.11522.

D. Court concurrent jurisdiction plans. 2012 PA 338. Effective Jan. 1, 2013. Requires the judges within a judicial circuit to adopt a plan for concurrent jurisdiction, unless a majority of the judges vote not to adopt any plan. All plans must be approved by the Michigan Supreme Court. MCL 400.601.

E. Fingerprinting Fees. 2012 PA 318. Continues the authority of the Michigan State Police to charge a fee for fingerprinting and criminal record checks until Oct. 1, 2015. MCL 28.273.

F. Firearms.

1. Carrying a Concealed Weapon Permit. Allows a person to petition for renewal of a CCW license within 6 months of the expiration of their current license. MCL 28.425l.

2. Out of State Purchases. 2012 PA 378. Effective Dec. 18, 2012. Allows Michigan residents to purchase a rifle or shotgun out of state, or for an out of state resident to purchase a rifle or shotgun in Michigan, so long as they comply with federal law. MCL 3.111 & MCL 3.112.

3. Pistol Purchase Permits. 2012 PA 377. Effective Dec. 18, 2012. Eliminates the pistol permit requirement if the purchaser has a carrying a concealed weapon license, is a federally licensed firearms dealer, or the pistol is purchased from a federally licensed dealer. MCL 28.422a.

4. Pistol Size. 2012 PA 242-244. Effective Jan. 1, 2013. Reduces the allowable length of a pistol from 30 to 26 inches. MCL 750.222e. Allows individuals who previously registered a pistol between 26 and 30 inches in length to continue to treat it as a legal pistol. MCL 750.228.

5. Sporting Clays. 2012 PA 145. Effective Oct. 16, 2012. Allows a person to transport or possess an unloaded firearm in a vehicle on a sporting clays range. MCL 324.40111.

6. Transporting. 2012 PA 427. Effective Dec. 21, 2012. Deletes the lawful purpose definitions for transporting a firearm. The definitions used to limit a lawful purpose for transport to hunting, target shooting, repair, inspection, and moving. MCL 750.231a.

G. Fishing. 2012 PA 145. Effective July 2, 2012. Regulates the taking of fish with a crossbow. MCL 324.48703.

H. Hunters with a Disability. 2012 PA 246. Effective July 2, 2012. Allows a disabled person to hunt from a vehicle, other than a truck, in a state licensed game bird hunting preserve. MCL 324.40111.

I. Judicial Positions.

1. Trial Judges. 2012 PA 16-23. Effective Feb. 22, 2013. 2012 PA 33-38. Effective Feb. 28, 2012. Reduces by attrition numerous judicial positions around the state.

2. Court of Appeals. 2012 PA 40. Effective March 25, 2012. Redistricts the Court of Appeals, and reduces through attrition the number of judges from 28 to 24. MCL 600.301.

J. Municipal Jails. 2012 PA 136. Effective May 16, 2012. Allows municipalities in counties under 500,000 in population to seek reimbursement from municipal jail inmates. MCL 801.312.

K. Nursing Jurors. 2012 PA 69. Effective May 1, 2012. Allows nursing mothers to claim an exemption from jury service. MCL 600.1307a.

L. Open Meetings Act. 2012 PA 528. Effective Dec. 28, 2012. Requires posting of rescheduled or special meetings under the Open Meetings Act on the public body’s website. MCL 15.265.

M. Prisoner Re-entry. 2012 PA 24-27. Effective Feb. 23, 2012. Describes actions a prisoner and the Department of Corrections must take to assist a prisoner to obtain identity documents. MCL 791.234c.

N. Private Persons. 2012 PA 599. Effective Mach 28, 2013. Allows the Department of Corrections to contract with a privately owned correctional facility. MCL 791.220j.

O. Spear Fishing. 2012 PA 301. Effective Sep. 25, 2012. Repeals the prohibition on spear fishing in Houghton Lake. MCL 324.48501.

P. Veterans Treatment Courts. 2012 PA 334-335. Effective Oct. 16, 2012. Allows circuit and district courts to establish veterans’ treatment courts. Essentially similar to drug treatment courts.

Q. Violent Tenants. 2012 PA 139-140. Effective May 22, 2012. Allows a landlord to evict a tenant after 7 days notice if the tenant has caused or threatened physical injury to another person. MCL 600.5714.

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Sam Bernstein is an Ypsilanti Criminal Lawyer.

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