New Criminal Laws in 2011 Part 2

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).

v. 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.

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).

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