Bill Text: MI HB5032 | 2017-2018 | 99th Legislature | Introduced

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Bill Title: Crimes; other; definition of consent in crime of embezzlement against vulnerable adults; establish and include elder adults as victims. Amends sec. 174a of 1931 PA 328 (MCL 750.174a).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2017-09-28 - Bill Electronically Reproduced 09/27/2017 [HB5032 Detail]

Download: Michigan-2017-HB5032-Introduced.html

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HOUSE BILL No. 5032

 

 

September 27, 2017, Introduced by Reps. Green, Farrington, Hertel, Schor, Sabo, Peterson, Yanez, Brann, Sowerby, Hughes, Lucido, Pagan, Maturen, Wittenberg, Ellison, Noble, Liberati, Chang, Yaroch, Lasinski, Geiss, Camilleri and Jones and referred to the Committee on Law and Justice.

 

     A bill to amend 1931 PA 328, entitled

 

"The Michigan penal code,"

 

by amending section 174a (MCL 750.174a), as amended by 2013 PA 34.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 174a. (1) A person shall not through fraud, deceit,

 

misrepresentation, coercion, or unjust enrichment, or without

 

consent obtain or use or attempt to obtain or use a vulnerable or

 

elder adult's money or property to directly or indirectly benefit

 

that person knowing or having reason to know the vulnerable adult

 

is a vulnerable adult.individual whose money or property the person

 

is attempting to obtain or use or has obtained or used is an elder

 

adult or vulnerable adult.

 

     (2) If the money or property used or obtained, or attempted to

be used or obtained, has a value of less than $200.00, the person

 

is guilty of a misdemeanor punishable by imprisonment for not more

 

than 93 days or a fine of not more than $500.00 or 3 times the

 

value of the money or property used or obtained or attempted to be

 

used or obtained, whichever is greater, or both imprisonment and a

 

fine.

 

     (3) If any of the following apply, the person is guilty of a

 

misdemeanor punishable by imprisonment for not more than 1 year or

 

a fine of not more than $2,000.00 or 3 times the value of the money

 

or property used or obtained or attempted to be used or obtained,

 

whichever is greater, or both imprisonment and a fine:

 

     (a) The money or property used or obtained, or attempted to be

 

used or obtained, has a value of $200.00 or more but less than

 

$1,000.00.

 

     (b) The person violates subsection (2) and has 1 or more prior

 

convictions for committing or attempting to commit an offense under

 

this section.

 

     (4) If any of the following apply, the person is guilty of a

 

felony punishable by imprisonment for not more than 5 years or a

 

fine of not more than $10,000.00 or 3 times the value of the money

 

or property used or obtained or attempted to be used or obtained,

 

whichever is greater, or both imprisonment and a fine:

 

     (a) The money or property used or obtained, or attempted to be

 

used or obtained, has a value of $1,000.00 or more but less than

 

$20,000.00.

 

     (b) The person violates subsection (3)(a) and has 1 or more

 

prior convictions for committing or attempting to commit an offense

under this section. For purposes of this subdivision, however, a

 

prior conviction does not include a conviction for a violation or

 

attempted violation of subsection (2) or (3)(b).

 

     (5) If any of the following apply, the person is guilty of a

 

felony punishable by imprisonment for not more than 10 years or a

 

fine of not more than $15,000.00 or 3 times the value of the money

 

or property used or obtained or attempted to be used or obtained,

 

whichever is greater, or both imprisonment and a fine:

 

     (a) The money or property used or obtained, or attempted to be

 

used or obtained, has a value of $20,000.00 or more but less than

 

$50,000.00.

 

     (b) The person violates subsection (4)(a) and has 2 or more

 

prior convictions for committing or attempting to commit an offense

 

under this section. For purposes of this subdivision, however, a

 

prior conviction does not include a conviction for a violation or

 

attempted violation of subsection (2) or (3)(b).

 

     (6) If any of the following apply, the person is guilty of a

 

felony punishable by imprisonment for not more than 15 years or a

 

fine of not more than $15,000.00 or 3 times the value of the money

 

or property used or obtained or attempted to be used or obtained,

 

whichever is greater, or both imprisonment and a fine:

 

     (a) The money or property used or obtained, or attempted to be

 

used or obtained, has a value of $50,000.00 or more but less than

 

$100,000.00.

 

     (b) The person violates subsection (5)(a) and has 2 or more

 

prior convictions for committing or attempting to commit an offense

 

under this section. For purposes of this subdivision, however, a

prior conviction does not include a conviction for a violation or

 

attempted violation of subsection (2) or (3)(b).

 

     (7) If any of the following apply, the person is guilty of a

 

felony punishable by imprisonment for not more than 20 years or a

 

fine of not more than $50,000.00 or 3 times the value of the money

 

or property used or obtained or attempted to be used or obtained,

 

whichever is greater, or both imprisonment and a fine:

 

     (a) The money or property used or obtained, or attempted to be

 

used or obtained, has a value of $100,000.00 or more.

 

     (b) The person violates subsection (6)(a) and has 2 or more

 

prior convictions for committing or attempting to commit an offense

 

under this section. For purposes of this subdivision, however, a

 

prior conviction does not include a conviction for a violation or

 

attempted violation of subsection (2) or (3)(b).

 

     (8) Except as otherwise provided in this subsection, the

 

values of money or property used or obtained or attempted to be

 

used or obtained in separate incidents pursuant to a scheme or

 

course of conduct within any 12-month period may be aggregated to

 

determine the total value of money or personal property used or

 

obtained or attempted to be used or obtained. If the scheme or

 

course of conduct is directed against only 1 person, no time limit

 

applies to aggregation under this subsection.

 

     (9) The transfer of money or property valued in excess of

 

$10,000.00 at the time of the transfer, whether in a single

 

transaction or multiple transactions, by an elder adult to a

 

nonrelative whom the elder adult knew for fewer than 2 years before

 

the first transfer and for which the elder adult did not receive

the reasonably equivalent financial value in goods or services

 

creates a rebuttable presumption that the transfer was the result

 

of exploitation. This subsection applies whether or not the

 

transfer or transfers are denoted by the elder adult and

 

nonrelative as gift or a loan, except that it does not apply to a

 

valid loan evidenced in writing that includes definite repayment

 

dates. However, if repayment of such a loan is in default, in whole

 

or in part, for more than 65 days, the rebuttable presumption

 

created in this subsection applies. This subsection does not apply

 

to any of the following:

 

     (a) A person in the business of making loans.

 

     (b) Bona fide charitable donations to nonprofit organizations

 

that qualify for tax-exempt status under section 501(c)(3) of the

 

internal revenue code, 26 USC 501.

 

     (10) (9) If the prosecuting attorney intends to seek an

 

enhanced sentence based upon the defendant having 1 or more prior

 

convictions, the prosecuting attorney shall include on the

 

complaint and information a statement listing the prior conviction

 

or convictions. The existence of the defendant's prior conviction

 

or convictions shall must be determined by the court, without a

 

jury, at sentencing or at a separate hearing for that purpose

 

before sentencing. The existence of a prior conviction may be

 

established by any evidence relevant for that purpose, including,

 

but not limited to, 1 or more of the following:

 

     (a) A copy of the judgment of conviction.

 

     (b) A transcript of a prior trial, plea-taking, or sentencing.

 

     (c) Information contained in a presentence report.

     (d) The defendant's statement.

 

     (11) (10) If the sentence for a conviction under this section

 

is enhanced by 1 or more prior convictions, those prior convictions

 

shall must not be used to further enhance the sentence for the

 

conviction under section 10, 11, or 12 of chapter IX of the code of

 

criminal procedure, 1927 PA 175, MCL 769.10, 769.11, and 769.12.

 

     (12) (11) A financial institution or a broker or a director,

 

officer, employee, or agent of a financial institution or broker is

 

not in violation of this section while performing duties in the

 

normal course of business of a financial institution or broker or a

 

director, officer, employee, or agent of a financial institution or

 

broker.

 

     (13) The court may order a sentence imposed for a violation of

 

subsection (4), (5), (6), or (7) to be served consecutively to any

 

other sentence imposed for a violation of this section.term of

 

imprisonment imposed for a violation of this section to be served

 

consecutively to a term of imprisonment imposed for any other

 

crime, including any other violation of law arising out of the same

 

transaction as the violation of this section.

 

     (14) This section does not prohibit a person from being

 

charged with, convicted of, or punished for any other violation of

 

law the person commits while violating this section.

 

     (15) As used in this section:

 

     (a) "Broker" means that term as defined in section 8102 of the

 

uniform commercial code, 1962 PA 174, MCL 440.8102.

 

     (b) "Consent" means an informed decision-making consent, which

 

includes the ability to communicate all of the following:

     (i) The choice to engage in the decision or transaction.

 

     (ii) The cognitive ability to realize probable consequences

 

and to weigh them and the expenditure of appropriate mental effort

 

in doing so.

 

     (iii) An appreciation of the nature and effect of that choice.

 

     (iv) Freedom from duress and undue influence.

 

     (v) A rationale for the choice and reasoning around the

 

decision or transaction.

 

     (c) "Elder adult" means a person who is 65 years of age or

 

older.

 

     (d) (b) "Financial institution" means a bank, credit union,

 

saving bank, or a savings and loan chartered under state or federal

 

law or an affiliate of a bank, credit union, saving bank, or

 

savings and loan chartered under state or federal law.

 

     (e) (c) "Vulnerable adult" means that term as defined in

 

section 145m, whether or not the individual has been determined by

 

the court to be incapacitated.

 

     (16) If the office of services to the a local area agency on

 

aging becomes aware of a violation of this section, the office of

 

services to the local area agency on aging shall promptly report

 

the violation to the department of health and human services.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.