HB-5798, As Passed Senate, December 4, 2018

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 5798

A bill to amend 1985 PA 87, entitled

"William Van Regenmorter crime victim's rights act,"

by amending sections 2, 31, and 61 (MCL 780.752, 780.781, and

780.811), section 2 as amended by 2014 PA 133, section 31 as

amended by 2014 PA 134, and section 61 as amended by 2014 PA 130.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 2. (1) Except as otherwise defined in this article, as

used in this article:

(a) "County juvenile agency" means that term as defined in

section 2 of the county juvenile agency act, 1998 PA 518, MCL

45.622.

(b) "Crime" means a violation of a penal law of this state for

which the offender, upon conviction, may be punished by

imprisonment for more than 1 year or an offense expressly

designated by law as a felony.

described in section 2 of 1976 PA 223, MCL 18.352.

(d) "Defendant" means a person charged with, convicted of, or

found not guilty by reason of insanity of committing a crime

against a victim.

(e) "Facility", as used in sections 6, 13a, 19a, and 20 only,

and not with reference to a juvenile facility, means that term as

defined in section 100b of the mental health code, 1974 PA 258, MCL

330.1100b.

(f) "Final disposition" means the ultimate termination of the

criminal prosecution of a defendant including, but not limited to,

dismissal, acquittal, or imposition of sentence by the court.

(g) "Juvenile" means a person within the jurisdiction of the

circuit court under section 606 of the revised judicature act of

1961, 1961 PA 236, MCL 600.606.

(h) "Juvenile facility" means a county facility, institution

operated as an agency of the county or the family division of

circuit court, or an institution or agency described in the youth

rehabilitation services act, 1974 PA 150, MCL 803.301 to 803.309,

to which a juvenile has been committed or in which a juvenile is

detained.

(i) "Hospital" means that term as defined in section 100b of

the mental health code, 1974 PA 258, MCL 330.1100b.

(j) "Person" means an individual, organization, partnership,

corporation, or governmental entity.

(k) "Prisoner" means a person who has been convicted and

sentenced to imprisonment or placement in a juvenile facility for

having committed a crime or an act that would be a crime if

committed by an adult against a victim.

(l) "Prosecuting attorney" means the prosecuting attorney for

a county, an assistant prosecuting attorney for a county, the

attorney general, the deputy attorney general, an assistant

attorney general, or a special prosecuting attorney.

(m) "Victim" means any of the following:

(i) An individual who suffers direct or threatened physical,

financial, or emotional harm as a result of the commission of a

crime, except as provided in subparagraph (ii), (iii), or (iv), or

(v).

(ii) The following individuals other than the defendant if the

victim is deceased, except as provided in subparagraph (v):

(A) The spouse of the deceased victim.

(B) A child of the deceased victim if the child is 18 years of

age or older and sub-subparagraph (A) does not apply.

and (B) do not apply.

(D) The guardian or custodian of a child of a the deceased

victim if the child is less than 18 years of age and sub-

subparagraphs (A) to (C) do not apply.

(E) A sibling of the deceased victim if sub-subparagraphs (A)

to (D) do not apply.

(F) A grandparent of the deceased victim if sub-subparagraphs

(A) to (E) do not apply.

(iii) A parent, guardian, or custodian of a the victim, ~~who~~ if

the victim is less than 18 years of age, ~~and~~ who is neither the

defendant nor incarcerated, if the parent, guardian, or custodian

so chooses. ~~For the purpose of making an impact statement only, a~~

~~parent, guardian, or custodian of a victim who is less than 18~~

~~years of age at the time of the commission of the crime and who is~~

~~neither the defendant nor incarcerated, if the parent, guardian, or~~

~~custodian so chooses.~~

(iv) A parent, guardian, or custodian of a victim who is

mentally or emotionally unable to participate in the legal process

if he or she is neither the defendant nor incarcerated.

(v) For the purpose of submitting or making an impact

statement only, if the victim as defined in subparagraph (i) is

deceased, is so mentally incapacitated that he or she cannot

meaningfully understand or participate in the legal process, or

consents to the designation as a victim of the following

individuals other than the defendant:

(A) The spouse of the victim.

(B) A child of the victim if the child is 18 years of age or

older.

(D) The guardian or custodian of a child of the victim if the

child is less than 18 years of age.

(E) A sibling of the victim.

(F) A grandparent of the victim.

(G) A guardian or custodian of the victim if the victim is

less than 18 years of age at the time of the commission of the

crime and that guardian or custodian is not incarcerated.

(2) If a victim as defined in subsection (1)(m)(i) is

physically or emotionally unable to exercise the privileges and

rights under this article, the victim may designate his or her

spouse, child 18 years of age or older, parent, sibling,

grandparent, or any other person 18 years of age or older who is

neither the defendant nor incarcerated to act in his or her place

while the physical or emotional disability continues. The victim

shall provide the prosecuting attorney with the name of the person

who is to act in his or her place. During the physical or emotional

disability, notices to be provided under this article to the victim

~~shall~~ must continue to be sent only to the victim.

(3) An individual who is charged with a crime arising out of

the same transaction from which the charge against the defendant

arose is not eligible to exercise the privileges and rights

established for victims under this article.

(4) An individual who is incarcerated is not eligible to

exercise the privileges and rights established for victims under

this article except that he or she may submit a written statement

to the court for consideration at sentencing.

Sec. 31. (1) Except as otherwise defined in this article, as

used in this article:

(a) "County juvenile agency" means that term as defined in

section 2 of the county juvenile agency act, 1998 PA 518, MCL

45.622.

(b) "Court" means the family division of circuit court.

described in section 2 of 1976 PA 223, MCL 18.352.

(d) "Designated case" means a case designated as a case in

which the juvenile is to be tried in the same manner as an adult

under section 2d of chapter XIIA of the probate code of 1939, 1939

PA 288, MCL 712A.2d.

(e) "Juvenile" means an individual alleged or found to be

within the court's jurisdiction under section 2(a)(1) of chapter

XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2, for an

offense, including, but not limited to, an individual in a

designated case.

(f) "Juvenile facility" means a county facility, an

institution operated as an agency of the county or the court, or an

institution or agency described in the youth rehabilitation

services act, 1974 PA 150, MCL 803.301 to 803.309, to which a

juvenile has been committed or in which a juvenile is detained.

(g) "Offense" means 1 or more of the following:

(i) A violation of a penal law of this state for which a

juvenile offender, if convicted as an adult, may be punished by

imprisonment for more than 1 year or an offense expressly

designated by law as a felony.

(ii) A violation of section 81 (assault and battery, including

domestic violence), 81a (assault; infliction of serious injury,

including aggravated domestic violence), 115 (breaking and entering

or illegal entry), 136b(7) (child abuse in the fourth degree), 145

(contributing to the neglect or delinquency of a minor), 145d

(using the internet or a computer to make a prohibited

communication), 233 (intentionally aiming a firearm without

malice), 234 (discharge of a firearm intentionally aimed at a

person), 235 (discharge of an intentionally aimed firearm resulting

in injury), 335a (indecent exposure), or 411h (stalking) of the

Michigan penal code, 1931 PA 328, MCL 750.81, 750.81a, 750.115,

750.136b, 750.145, 750.145d, 750.233, 750.234, 750.235, 750.335a,

and 750.411h.

(iii) A violation of section 601b(2) (injuring a worker in a

work zone) or 617a (leaving the scene of a personal injury

accident) of the Michigan vehicle code, 1949 PA 300, MCL 257.601b

and 257.617a, or a violation of section 625 (operating a vehicle

while under the influence of or impaired by intoxicating liquor or

a controlled substance, or with unlawful blood alcohol content) of

~~that act,~~ the Michigan vehicle code, 1949 PA 300, MCL 257.625, if

the violation involves an accident resulting in damage to another

individual's property or physical injury or death to another

individual.

(iv) Selling or furnishing alcoholic liquor to an individual

less than 21 years of age in violation of section 33 of the former

1933 (Ex Sess) PA 8, or section 701 of the Michigan liquor control

code of 1998, 1998 PA 58, MCL 436.1701, if the violation results in

physical injury or death to any individual.

(v) A violation of section 80176(1) or (3) (operating a vessel

while under the influence of or impaired by intoxicating liquor or

a controlled substance, or with unlawful blood alcohol content) of

the natural resources and environmental protection act, 1994 PA

451, MCL 324.80176, if the violation involves an accident resulting

in damage to another individual's property or physical injury or

death to any individual.

(vi) A violation of a local ordinance substantially

corresponding to a law enumerated in subparagraphs (i) to (v).

(vii) A violation described in subparagraphs (i) to (vi) that

is subsequently reduced to a violation not included in

subparagraphs (i) to (vi).

(h) "Person" means an individual, organization, partnership,

corporation, or governmental entity.

(i) "Prosecuting attorney" means the prosecuting attorney for

a county, an assistant prosecuting attorney for a county, the

attorney general, the deputy attorney general, an assistant

attorney general, a special prosecuting attorney, or, in connection

with the prosecution of an ordinance violation, an attorney for the

political subdivision that enacted the ordinance upon which the

violation is based.

(j) "Victim" means any of the following:

(i) A person who suffers direct or threatened physical,

financial, or emotional harm as a result of the commission of an

offense, except as provided in subparagraph (ii), (iii), or (iv),

or (v).

(ii) The following individuals other than the juvenile if the

victim is deceased, except as provided in subparagraph (v):

(A) The spouse of the deceased victim.

(B) A child of the deceased victim if the child is 18 years of

age or older and sub-subparagraph (A) does not apply.

(B) do not apply.

(D) The guardian or custodian of a child of a deceased victim

if the child is less than 18 years of age and sub-subparagraphs (A)

to (C) do not apply.

(E) A sibling of the deceased victim if sub-subparagraphs (A)

to (D) do not apply.

(F) A grandparent of the deceased victim if sub-subparagraphs

(A) to (E) do not apply.

(iii) A parent, guardian, or custodian of a victim who is less

than 18 years of age and who is neither the ~~defendant~~ juvenile nor

incarcerated, if the parent, guardian, or custodian so chooses. ~~For~~

~~the purpose of making an impact statement only, a parent, guardian,~~

~~or custodian of a victim who is less than 18 years of age at the~~

~~time of the commission of the crime and who is neither the~~

~~defendant nor incarcerated, if the parent, guardian, or custodian~~

~~so chooses.~~

(iv) A parent, guardian, or custodian of a victim who is

mentally or emotionally unable to participate in the legal process

if he or she is neither the ~~defendant~~ juvenile nor incarcerated.

(v) For the purpose of submitting or making an impact

statement only, if the victim as defined in subparagraph (i) is

deceased, is so mentally incapacitated that he or she cannot

meaningfully understand or participate in the legal process, or

consents to the designation as a victim of the following

individuals other than the juvenile:

(A) The spouse of the victim.

(B) A child of the victim if the child is 18 years of age or

older.

(D) The guardian or custodian of a child of the victim if the

child is less than 18 years of age.

(E) A sibling of the victim.

(F) A grandparent of the victim.

(G) A guardian or custodian of the victim if the victim is

less than 18 years of age at the time of the commission of the

crime and that guardian or custodian is not incarcerated.

(2) If a victim as defined in subsection (1)(j)(i) is

physically or emotionally unable to exercise the privileges and

rights under this article, the victim may designate his or her

spouse, child 18 years of age or older, parent, sibling,

grandparent, or any other person 18 years of age or older who is

neither the defendant nor incarcerated to act in his or her place

while the physical or emotional disability continues. The victim

shall provide the prosecuting attorney with the name of the person

who is to act in his or her place. During the physical or emotional

disability, notices to be provided under this article to the victim

~~shall~~ must continue to be sent only to the victim.

(3) An individual who is charged with an offense arising out

of the same transaction from which the charge against the defendant

arose is not eligible to exercise the privileges and rights

established for victims under this article.

Sec. 61. (1) Except as otherwise defined in this article, as

used in this article:

(a) "Serious misdemeanor" means 1 or more of the following:

(i) A violation of section 81 of the Michigan penal code, 1931

PA 328, MCL 750.81, assault and battery, including domestic

violence.

(ii) A violation of section 81a of the Michigan penal code,

1931 PA 328, MCL 750.81a, assault; infliction of serious injury,

including aggravated domestic violence.

(iii) A violation of section 115 of the Michigan penal code,

1931 PA 328, MCL 750.115, breaking and entering or illegal entry.

(iv) A violation of section 136b(7) of the Michigan penal

code, 1931 PA 328, MCL 750.136b, child abuse in the fourth degree.

(v) A violation of section 145 of the Michigan penal code,

1931 PA 328, MCL 750.145, contributing to the neglect or

delinquency of a minor.

(vi) A misdemeanor violation of section 145d of the Michigan

penal code, 1931 PA 328, MCL 750.145d, using the internet or a

computer to make a prohibited communication.

(vii) A violation of section 233 of the Michigan penal code,

1931 PA 328, MCL 750.233, intentionally aiming a firearm without

malice.

(viii) A violation of section 234 of the Michigan penal code,

1931 PA 328, MCL 750.234, discharge of a firearm intentionally

aimed at a person.

(ix) A violation of section 235 of the Michigan penal code,

1931 PA 328, MCL 750.235, discharge of an intentionally aimed

firearm resulting in injury.

(x) A violation of section 335a of the Michigan penal code,

1931 PA 328, MCL 750.335a, indecent exposure.

(xi) A violation of section 411h of the Michigan penal code,

1931 PA 328, MCL 750.411h, stalking.

(xii) A violation of section 601b(2) of the Michigan vehicle

code, 1949 PA 300, MCL 257.601b, injuring a worker in a work zone.

(xiii) A violation of section 617a of the Michigan vehicle

code, 1949 PA 300, MCL 257.617a, leaving the scene of a personal

injury accident.

(xiv) A violation of section 625 of the Michigan vehicle code,

1949 PA 300, MCL 257.625, operating a vehicle while under the

influence of or impaired by intoxicating liquor or a controlled

substance, or with an unlawful blood alcohol content, if the

violation involves an accident resulting in damage to another

individual's property or physical injury or death to another

individual.

(xv) Selling or furnishing alcoholic liquor to an individual

less than 21 years of age in violation of section 701 of the

Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1701, if

the violation results in physical injury or death to any

individual.

(xvi) A violation of section 80176(1) or (3) of the natural

resources and environmental protection act, 1994 PA 451, MCL

324.80176, operating a vessel while under the influence of or

impaired by intoxicating liquor or a controlled substance, or with

an unlawful blood alcohol content, if the violation involves an

accident resulting in damage to another individual's property or

physical injury or death to any individual.

(xvii) A violation of a local ordinance substantially

corresponding to a violation enumerated in subparagraphs (i) to

(xvi).

(xviii) A violation charged as a crime or serious misdemeanor

enumerated in subparagraphs (i) to (xvii) but subsequently reduced

to or pleaded to as a misdemeanor. As used in this subparagraph,

"crime" means that term as defined in section 2.

(b) "Crime victim services commission" means that term as

described in section 2 of 1976 PA 223, MCL 18.352.

having committed a serious misdemeanor against a victim.

(d) "Final disposition" means the ultimate termination of the

criminal prosecution of a defendant including, but not limited to,

dismissal, acquittal, or imposition of a sentence by the court.

(e) "Person" means an individual, organization, partnership,

corporation, or governmental entity.

(f) "Prisoner" means a person who has been convicted and

sentenced to imprisonment for having committed a serious

misdemeanor against a victim.

(g) "Prosecuting attorney" means the prosecuting attorney for

a county, an assistant prosecuting attorney for a county, the

attorney general, the deputy attorney general, an assistant

attorney general, a special prosecuting attorney, or, in connection

with the prosecution of an ordinance violation, an attorney for the

political subdivision that enacted the ordinance upon which the

violation is based.

(h) "Victim" means any of the following:

(i) An individual who suffers direct or threatened physical,

financial, or emotional harm as a result of the commission of a

serious misdemeanor, except as provided in subparagraph (ii),

(iii), or (iv), or (v).

(ii) The following individuals other than the defendant if the

victim is deceased, except as provided in subparagraph (v):

(A) The spouse of the deceased victim.

(B) A child of the deceased victim if the child is 18 years of

age or older and sub-subparagraph (A) does not apply.

(B) do not apply.

(D) The guardian or custodian of a child of a deceased victim

if the child is less than 18 years of age and sub-subparagraphs (A)

to (C) do not apply.

(E) A sibling of the deceased victim if sub-subparagraphs (A)

to (D) do not apply.

(F) A grandparent of the deceased victim if sub-subparagraphs

(A) to (E) do not apply.

(iii) A parent, guardian, or custodian of a victim who is less

than 18 years of age and who is neither the defendant nor

incarcerated, if the parent, guardian, or custodian so chooses. ~~For~~

~~the purpose of making an impact statement only, a parent, guardian,~~

~~or custodian of a victim who is less than 18 years of age at the~~

~~time of the commission of the crime and who is neither the~~

~~defendant nor incarcerated, if the parent, guardian, or custodian~~

~~so chooses.~~

(iv) A parent, guardian, or custodian of a victim who is so

mentally incapacitated that he or she cannot meaningfully

understand or participate in the legal process if he or she is not

the defendant and is not incarcerated.

(v) For the purpose of submitting or making an impact

statement only, if the victim as defined in subparagraph (i) is

deceased, is so mentally incapacitated that he or she cannot

meaningfully understand or participate in the legal process, or

consents to the designation as a victim of the following

individuals other than the defendant:

(A) The spouse of the victim.

(B) A child of the victim if the child is 18 years of age or

older.

(D) The guardian or custodian of a child of the victim if the

child is less than 18 years of age.

(E) A sibling of the victim.

(F) A grandparent of the victim.

(G) A guardian or custodian of the victim if the victim is

less than 18 years of age at the time of the commission of the

crime and that guardian or custodian is not incarcerated.

(2) If a victim as defined in subsection (1)(h)(i) is

physically or emotionally unable to exercise the privileges and

rights under this article, the victim may designate his or her

spouse, child 18 years of age or older, parent, sibling, or

grandparent or any other person 18 years of age or older who is

neither the defendant nor incarcerated to act in his or her place

while the physical or emotional disability continues. The victim

shall provide the prosecuting attorney with the name of the person

who is to act in place of the victim. During the physical or

emotional disability, notices to be provided under this article to

the victim ~~shall~~ must continue to be sent only to the victim.

(3) An individual who is charged with a serious misdemeanor, a

crime as defined in section 2, or an offense as defined in section

31 arising out of the same transaction from which the charge

against the defendant arose is not eligible to exercise the

privileges and rights established for victims under this article.

(4) An individual who is incarcerated is not eligible to

exercise the privileges and rights established for victims under

this article except that he or she may submit a written statement

to the court for consideration at sentencing.

Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.