December 8, 2016, Introduced by Reps. Lauren Plawecki, Lane, Liberati, Cochran, Brunner, Clemente, Driskell and Singh and referred to the Committee on Criminal 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
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.
(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) 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 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.
(10) If the sentence for a conviction under this section is
enhanced by 1 or more prior convictions, those prior convictions
shall 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.
(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.
(12) (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.
(13) (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.
(14) (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) (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.
(d) (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.
(15) (16)
If the office of services to the
aging becomes aware
of a violation of this section, the office of services to the aging
shall promptly report the violation to the department of human
services.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.