Bill Text: MI HB4737 | 2009-2010 | 95th Legislature | Engrossed

Michigan House Bill 4737 (Prior Session Legislation)

Bill Title: Crime victims; rights; restitution of certain costs incurred by victims of identity theft; amend William Van Regenmorter crime victim's rights act to require. Amends secs. 4a, 16, 33b, 44, 64a & 76 of 1985 PA 87 (MCL 780.754a et seq.). TIE BAR WITH: HB 4736'09, HB 4738'09

Spectrum: Slight Partisan Bill (Democrat 4-2)

Status: (Introduced - Dead) 2009-09-10 - Referred To Committee On Judiciary [HB4737 Detail]

Download: Michigan-2009-HB4737-Engrossed.html

HB-4737, As Passed House, September 9, 2009

SUBSTITUTE FOR

HOUSE BILL NO. 4737

A bill to amend 1985 PA 87, entitled

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

by amending sections 4a, 16, 33b, 44, 64a, and 76 (MCL 780.754a,

780.766, 780.783b, 780.794, 780.814a, and 780.826), sections 4a,

33b, and 64a as added by 2004 PA 456 and sections 16, 44, and 76 as

amended by 2009 PA 28.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 4a. (1) To facilitate compliance with sections 11 and 13

of the identity theft protection act, 2004 PA 452, MCL 445.71 and

445.73, and 15 USC 1681g, a bona fide victim of identity theft is

entitled to file a police report with a law enforcement agency in a

jurisdiction where the alleged violation of identity theft may be

prosecuted as provided under section 10c of chapter II of the code

of criminal procedure, 1927 PA 175, MCL 762.10c, and to obtain a

copy of that report from that law enforcement agency.

(2) As used in this section, "identity theft" means that term

as defined in section 3 of the identity theft protection act, 2004

PA 452, MCL 445.63.

Sec. 16. (1) As used in this section only, "victim" means an

individual who suffers direct or threatened physical, financial, or

emotional harm as a result of the commission of a crime. As used in

subsections (2), (3), (6), ~~(8),~~ (9), (10), and ~~(13)~~ (14) only,

victim includes a sole proprietorship, partnership, corporation,

association, governmental entity, or any other legal entity that

suffers direct physical or financial harm as a result of a crime.

(2) Except as provided in subsection ~~(8)~~ (9), when sentencing

a defendant convicted of a crime, the court shall order, in

addition to or in lieu of any other penalty authorized by law or in

addition to any other penalty required by law, that the defendant

make full restitution to any victim of the defendant's course of

conduct that gives rise to the conviction or to the victim's

estate. For an offense that is resolved by assignment of the

defendant to youthful trainee status, by a delayed sentence or

deferred judgment of guilt, or in another way that is not an

acquittal or unconditional dismissal, the court shall order the

restitution required under this section.

(3) If a crime results in damage to or loss or destruction of

property of a victim of the crime or results in the seizure or

impoundment of property of a victim of the crime, the order of

restitution shall require that the defendant do 1 or more of the

following, as applicable:

(a) Return the property to the owner of the property or to a

person designated by the owner.

(b) If return of the property under subdivision (a) is

impossible, impractical, or inadequate, pay an amount equal to the

greater of subparagraph (i) or (ii), less the value, determined as of

the date the property is returned, of that property or any part of

the property that is returned:

(i) The fair market value of the property on the date of the

damage, loss, or destruction. However, if the fair market value of

the property cannot be determined or is impractical to ascertain,

then the replacement value of the property shall be utilized in

lieu of the fair market value.

(ii) The fair market value of the property on the date of

sentencing. However, if the fair market value of the property

cannot be determined or is impractical to ascertain, then the

replacement value of the property shall be utilized in lieu of the

fair market value.

(4) If a crime results in physical or psychological injury to

a victim, the order of restitution shall require that the defendant

do 1 or more of the following, as applicable:

(a) Pay an amount equal to the reasonably determined cost of

medical and related professional services and devices actually

incurred and reasonably expected to be incurred relating to

physical and psychological care.

(b) Pay an amount equal to the reasonably determined cost of

physical and occupational therapy and rehabilitation actually

incurred and reasonably expected to be incurred.

income loss suffered by the victim as a result of the crime.

(d) Pay an amount equal to the reasonably determined cost of

psychological and medical treatment for members of the victim's

family actually incurred and reasonably expected to be incurred as

a result of the crime.

(e) Pay an amount equal to the reasonably determined costs of

homemaking and child care expenses actually incurred and reasonably

expected to be incurred as a result of the crime or, if homemaking

or child care is provided without compensation by a relative,

friend, or any other person, an amount equal to the costs that

would reasonably be incurred as a result of the crime for that

homemaking and child care, based on the rates in the area for

comparable services.

(f) Pay an amount equal to the cost of actual funeral and

related services.

(g) If the deceased victim could be claimed as a dependent by

his or her parent or guardian on the parent's or guardian's

federal, state, or local income tax returns, pay an amount equal to

the loss of the tax deduction or tax credit. The amount of

reimbursement shall be estimated for each year the victim could

reasonably be claimed as a dependent.

(h) Pay an amount equal to income actually lost by the spouse,

parent, sibling, child, or grandparent of the victim because the

family member left his or her employment, temporarily or

permanently, to care for the victim because of the injury.

(5) If a crime resulting in bodily injury also results in the

death of a victim or serious impairment of a body function of a

victim, the court may order up to 3 times the amount of restitution

otherwise allowed under this section. As used in this subsection,

"serious impairment of a body function of a victim" includes, but

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

(a) Loss of a limb or use of a limb.

(b) Loss of a hand or foot or use of a hand or foot.

(d) Loss or substantial impairment of a bodily function.

(e) Serious visible disfigurement.

(f) A comatose state that lasts for more than 3 days.

(g) Measurable brain damage or mental impairment.

(h) A skull fracture or other serious bone fracture.

(i) Subdural hemorrhage or subdural hematoma.

(j) Loss of a body organ.

(6) If the victim or victim's estate consents, the order of

restitution may require that the defendant make restitution in

services in lieu of money.

(7) If the victim is deceased, the court shall order that the

restitution be made to the victim's estate.

(8) If the victim is the victim of identity theft as that term

is defined in section 3 of the identity theft protection act, 2004

PA 452, MCL 445.63, then the court shall order restitution to

compensate the victim in full for the work done by the victim or

the victim's attorney, or both, to rectify the victim's financial

records and vital records and to ameliorate the effects of the

identity theft on the victim's financial affairs, including, but

not limited to, credit history, credit rating, or credit score.

(9) ~~(8)~~ The court shall order restitution to the crime victim

services commission or to any individuals, partnerships,

corporations, associations, governmental entities, or other legal

entities that have compensated the victim or the victim's estate

for a loss incurred by the victim to the extent of the compensation

paid for that loss. The court shall also order restitution for the

costs of services provided to persons or entities that have

provided services to the victim as a result of the crime. Services

that are subject to restitution under this subsection include, but

are not limited to, shelter, food, clothing, and transportation.

However, an order of restitution shall require that all restitution

to a victim or victim's estate under the order be made before any

restitution to any other person or entity under that order is made.

The court shall not order restitution to be paid to a victim or

victim's estate if the victim or victim's estate has received or is

to receive compensation for that loss, and the court shall state on

the record with specificity the reasons for its action.

(10) ~~(9)~~ Any amount paid to a victim or victim's estate under

an order of restitution shall be set off against any amount later

recovered as compensatory damages by the victim or the victim's

estate in any federal or state civil proceeding and shall reduce

the amount payable to a victim or a victim's estate by an award

from the crime victim services commission made after an order of

restitution under this section.

(11) ~~(10)~~ If not otherwise provided by the court under this

subsection, restitution shall be made immediately. However, the

court may require that the defendant make restitution under this

section within a specified period or in specified installments.

(12) ~~(11)~~ If the defendant is placed on probation or paroled

or the court imposes a conditional sentence as provided in section

3 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL

769.3, any restitution ordered under this section shall be a

condition of that probation, parole, or sentence. The court may

revoke probation or impose imprisonment under the conditional

sentence and the parole board may revoke parole if the defendant

fails to comply with the order and if the defendant has not made a

good faith effort to comply with the order. In determining whether

to revoke probation or parole or impose imprisonment, the court or

parole board shall consider the defendant's employment status,

earning ability, and financial resources, the willfulness of the

defendant's failure to pay, and any other special circumstances

that may have a bearing on the defendant's ability to pay.

(13) ~~(12)~~ Subject to subsection ~~(18)~~ (19), a defendant who is

required to pay restitution and who is not in willful default of

the payment of the restitution may at any time petition the

sentencing judge or his or her successor to modify the method of

payment. If the court determines that payment under the order will

impose a manifest hardship on the defendant or his or her immediate

family, and if the court also determines that modifying the method

of payment will not impose a manifest hardship on the victim, the

court may modify the method of payment.

(14) ~~(13)~~ An order of restitution entered under this section

remains effective until it is satisfied in full. An order of

restitution is a judgment and lien against all property of the

defendant for the amount specified in the order of restitution. The

lien may be recorded as provided by law. An order of restitution

may be enforced by the prosecuting attorney, a victim, a victim's

estate, or any other person or entity named in the order to receive

the restitution in the same manner as a judgment in a civil action

or a lien.

(15) ~~(14)~~ Notwithstanding any other provision of this section,

a defendant shall not be imprisoned, jailed, or incarcerated for a

violation of probation or parole or otherwise for failure to pay

restitution as ordered under this section unless the court or

parole board determines that the defendant has the resources to pay

the ordered restitution and has not made a good faith effort to do

so.

(16) ~~(15)~~ If the court determines that a juvenile is or will

be unable to pay all of the restitution ordered, after notice to

the juvenile's parent or parents and an opportunity for the parent

or parents to be heard the court may order the parent or parents

having supervisory responsibility for the juvenile at the time of

the acts upon which an order of restitution is based to pay any

portion of the restitution ordered that is outstanding. An order

under this subsection does not relieve the juvenile of his or her

obligation to pay restitution as ordered, but the amount owed by

the juvenile shall be offset by any amount paid by his or her

parent. As used in this subsection:

(a) "Juvenile" means a person within the court's jurisdiction

under section 2d or 4 of chapter XIIA of the probate code of 1939,

1939 PA 288, MCL 712A.2d and 712A.4.

(b) "Parent" does not include a foster parent.

(17) ~~(16)~~ If the court orders a parent to pay restitution

under subsection ~~(15)~~ (16), the court shall take into account the

parent's financial resources and the burden that the payment of

restitution will impose, with due regard to any other moral or

legal financial obligations the parent may have. If a parent is

required to pay restitution under subsection ~~(15)~~ (16), the court

shall provide for payment to be made in specified installments and

within a specified period of time.

(18) ~~(17)~~ A parent who has been ordered to pay restitution

under subsection ~~(15)~~ (16) may petition the court for a

modification of the amount of restitution owed by the parent or for

a cancellation of any unpaid portion of the parent's obligation.

The court shall cancel all or part of the parent's obligation due

if the court determines that payment of the amount due will impose

a manifest hardship on the parent and if the court also determines

that modifying the method of payment will not impose a manifest

hardship on the victim.

(19) ~~(18)~~ In each case in which payment of restitution is

ordered as a condition of probation, the court shall order any

employed defendant to make regularly scheduled restitution

payments. If the defendant misses 2 or more regularly scheduled

payments, the court shall order the defendant to execute a wage

assignment to pay the restitution. The probation officer assigned

to the case shall review the case not less than twice yearly to

ensure that restitution is being paid as ordered. If the

restitution was ordered to be made within a specific period of

time, the probation officer assigned to the case shall review the

case at the end of the specific period of time to determine if the

restitution has been paid in full. The final review shall be

conducted not less than 60 days before the probationary period

expires. If the probation officer determines at any review that

restitution is not being paid as ordered, the probation officer

shall file a written report of the violation with the court on a

form prescribed by the state court administrative office or shall

petition the court for a probation violation. The report or

petition shall include a statement of the amount of the arrearage

and any reasons for the arrearage known by the probation officer.

The probation officer shall immediately provide a copy of the

report or petition to the prosecuting attorney. If a petition or

motion is filed or other proceedings are initiated to enforce

payment of restitution and the court determines that restitution is

not being paid or has not been paid as ordered by the court, the

court shall promptly take action necessary to compel compliance.

(20) ~~(19)~~ If a defendant who is ordered to pay restitution

under this section is remanded to the jurisdiction of the

department of corrections, the court shall provide a copy of the

order of restitution to the department of corrections when the

defendant is remanded to the department's jurisdiction.

(21) ~~(20)~~ The court shall not impose a fee on a victim,

victim's estate, or prosecuting attorney for enforcing an order of

restitution.

(22) ~~(21)~~ If a person or entity entitled to restitution under

this section cannot be located, refuses to claim the restitution

within 2 years after the date on which he or she could have claimed

the restitution, or refuses to accept the restitution, the

restitution to which that person or entity is entitled shall be

deposited in the crime victim's rights fund created under section 4

of 1989 PA 196, MCL 780.904, or its successor fund. However, a

person or entity entitled to that restitution may claim that

restitution any time by applying to the court that originally

ordered and collected it. The court shall notify the crime victim

services commission of the application and the commission shall

approve a reduction in the court's revenue transmittal to the crime

victim's rights fund equal to the restitution owed to the person or

entity. The court shall use the reduction to reimburse that

restitution to the person or entity.

(23) ~~(22)~~ The court may amend an order of restitution entered

under this section on a motion by the prosecuting attorney, the

victim, or the defendant based upon new information related to the

injury, damages, or loss for which the restitution was ordered.

(24) ~~(23)~~ A court that receives notice that a defendant who

has an obligation to pay restitution under this section has

declared bankruptcy shall forward a copy of that notice to the

prosecuting attorney. The prosecuting attorney shall forward the

notice to the victim at the victim's last known address.

(25) ~~(24)~~ If the victim is a minor, the order of restitution

shall require the defendant to pay to a parent of the victim an

amount that is determined to be reasonable for any of the following

that are actually incurred or reasonably expected to be incurred by

the parent as a result of the crime:

(a) Homemaking and child care expenses.

(b) Income loss not ordered to be paid under subsection

(4)(h).

(d) Lodging or housing.

(e) Meals.

(f) Any other cost incurred in exercising the rights of the

victim or a parent under this act.

Sec. 33b. (1) To facilitate compliance with sections 11 and 13

of the identity theft protection act, 2004 PA 452, MCL 445.71 and

445.73, and 15 USC 1681g, a bona fide victim of identity theft is

entitled to file a police report with a law enforcement agency in a

jurisdiction where the alleged violation of identity theft may be

prosecuted as provided under section 10c of chapter II of the code

of criminal procedure, 1927 PA 175, MCL 762.10c, and to obtain a

copy of that report from that law enforcement agency.

(2) As used in this section, "identity theft" means that term

as defined in section 3 of the identity theft protection act, 2004

PA 452, 445.63.

Sec. 44. (1) As used in this section only:

(a) "Offense" means a violation of a penal law of this state

or a violation of an ordinance of a local unit of government of

this state punishable by imprisonment or by a fine that is not a

civil fine.

(b) "Victim" means an individual who suffers direct or

threatened physical, financial, or emotional harm as a result of

the commission of an offense. As used in subsections (2), (3), (6),

~~(8),~~ (9), (10), and ~~(13)~~ (14) only, victim includes a sole

proprietorship, partnership, corporation, association, governmental

entity, or any other legal entity that suffers direct physical or

financial harm as a result of an offense.

(2) Except as provided in subsection ~~(8)~~ (9), at the

dispositional hearing or sentencing for an offense, the court shall

order, in addition to or in lieu of any other disposition or

penalty authorized by law, that the juvenile make full restitution

to any victim of the juvenile's course of conduct that gives rise

to the disposition or conviction or to the victim's estate. For an

offense that is resolved informally by means of a consent calendar

diversion or by another informal method that does not result in a

dispositional hearing, by assignment to youthful trainee status, by

a delayed sentence or deferred judgment of guilt, or in another way

that is not an acquittal or unconditional dismissal, the court

shall order the restitution required under this section.

(3) If an offense results in damage to or loss or destruction

of property of a victim of the offense or results in the seizure or

impoundment of property of a victim of the offense, the order of

restitution shall require that the juvenile do 1 or more of the

following, as applicable:

(a) Return the property to the owner of the property or to a

person designated by the owner.

(b) If return of the property under subdivision (a) is

impossible, impractical, or inadequate, pay an amount equal to the

greater of subparagraph (i) or (ii), less the value, determined as of

the date the property is returned, of that property or any part of

the property that is returned:

(i) The fair market value of the property on the date of the

damage, loss, or destruction. However, if the fair market value of

the property cannot be determined or is impractical to ascertain,

then the replacement value of the property shall be utilized in

lieu of the fair market value.

(ii) The fair market value of the property on the date of

disposition. However, if the fair market value of the property

cannot be determined or is impractical to ascertain, then the

replacement value of the property shall be utilized in lieu of the

fair market value.

(4) If an offense results in physical or psychological injury

to a victim, the order of restitution shall require that the

juvenile do 1 or more of the following, as applicable:

(a) Pay an amount equal to the reasonably determined cost of

medical and related professional services and devices actually

incurred and reasonably expected to be incurred relating to

physical and psychological care.

(b) Pay an amount equal to the reasonably determined cost of

physical and occupational therapy and rehabilitation actually

incurred and reasonably expected to be incurred.

income loss suffered by the victim as a result of the offense.

(d) Pay an amount equal to the reasonably determined cost of

psychological and medical treatment for members of the victim's

family actually incurred or reasonably expected to be incurred as a

result of the offense.

(e) Pay an amount equal to the reasonably determined costs of

homemaking and child care expenses actually incurred or reasonably

expected to be incurred as a result of the offense or, if

homemaking or child care is provided without compensation by a

relative, friend, or any other person, an amount equal to the costs

that would reasonably be incurred as a result of the offense for

that homemaking and child care, based on the rates in the area for

comparable services.

(f) Pay an amount equal to the cost of actual funeral and

related services.

(g) If the deceased victim could be claimed as a dependent by

his or her parent or guardian on the parent's or guardian's

federal, state, or local income tax returns, pay an amount equal to

the loss of the tax deduction or tax credit. The amount of

reimbursement shall be estimated for each year the victim could

reasonably be claimed as a dependent.

(h) Pay an amount equal to income actually lost by the spouse,

parent, sibling, child, or grandparent of the victim because the

family member left his or her employment, temporarily or

permanently, to care for the victim because of the injury.

(5) If an offense resulting in bodily injury also results in

the death of a victim or serious impairment of a body function of a

victim, the court may order up to 3 times the amount of restitution

otherwise allowed under this section. As used in this subsection,

"serious impairment of a body function of a victim" includes, but

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

(a) Loss of a limb or use of a limb.

(b) Loss of a hand or foot or use of a hand or foot.

(d) Loss or substantial impairment of a bodily function.

(e) Serious visible disfigurement.

(f) A comatose state that lasts for more than 3 days.

(g) Measurable brain damage or mental impairment.

(h) A skull fracture or other serious bone fracture.

(i) Subdural hemorrhage or subdural hematoma.

(j) Loss of a body organ.

(6) If the victim or victim's estate consents, the order of

restitution may require that the juvenile make restitution in