March 2, 2006, Introduced by Reps. Van Regenmorter and David Law and referred to the Committee on Judiciary.
A bill to amend 1931 PA 328, entitled
"The Michigan penal code,"
by amending sections 49, 159j, and 535a (MCL 750.49, 750.159j, and
750.535a), section 49 as amended by 1998 PA 38, section 159j as
added by 1995 PA 187, and section 535a as amended by 1999 PA 185.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 49. (1) As used in this section, "animal" means a
vertebrate other than a human.
(2) A person shall not knowingly do any of the following:
(a) Own, possess, use, buy, sell, offer to buy or sell,
import, or export an animal for fighting or baiting, or as a target
to be shot at as a test of skill in marksmanship.
(b) Be a party to or cause the fighting, baiting, or shooting
of an animal as described in subdivision (a).
(c) Rent or otherwise obtain the use of a building, shed,
room, yard, ground, or premises for fighting, baiting, or shooting
an animal as described in subdivision (a).
(d) Permit the use of a building, shed, room, yard, ground, or
premises belonging to him or her or under his or her control for
any of the purposes described in this section.
(e) Organize, promote, or collect money for the fighting,
baiting, or shooting of an animal as described in subdivisions (a)
to (d).
(f) Be present at a building, shed, room, yard, ground, or
premises where preparations are being made for an exhibition
described in subdivisions (a) to (d), or be present at the
exhibition, knowing that an exhibition is taking place or about to
take place.
(g) Breed, buy, sell, offer to buy or sell, exchange, import,
or export an animal the person knows has been trained or used for
fighting as described in subdivisions (a) to (d), or breed, buy,
sell, offer to buy or sell, exchange, import, or export the
offspring of an animal the person knows has been trained or used
for fighting as described in subdivisions (a) to (d). This
subdivision does not prohibit owning, breeding, buying, selling,
offering to buy or sell, exchanging, importing, or exporting an
animal for agricultural or agricultural exposition purposes.
(h) Own, possess, use, buy, sell, offer to buy or sell,
transport, or deliver any device or equipment intended for use in
the fighting, baiting, or shooting of an animal as described in
subdivisions (a) to (d).
(3) A person who violates subsection (2)(a) to (e) is guilty
of a felony punishable by 1 or more of the following:
(a) Imprisonment for not more than 4 years.
(b) A fine of not less than $5,000.00 or more than $50,000.00.
(c) Not less than 500 or more than 1,000 hours of community
service.
(4) A person who violates subsection (2)(f) to (h) is guilty
of a felony punishable by 1 or more of the following:
(a) Imprisonment for not more than 4 years.
(b) A fine of not less than $1,000.00 or more than $5,000.00.
(c) Not less than 250 or more than 500 hours of community
service.
(5) The court may order a person convicted of violating this
section to pay the costs of prosecution.
(6) The court may order a person convicted of violating this
section to pay the costs for housing and caring for the animal,
including, but not limited to, providing veterinary medical
treatment.
(7) As part of the sentence for a violation of subsection (2),
the court shall order the person convicted not to own or possess an
animal of the same species involved in the violation of this
section for 5 years after the date of sentencing. Failure to comply
with the order of the court pursuant to this subsection is
punishable as contempt of court.
(8) If a person incites an animal trained or used for fighting
or an animal that is the first or second generation offspring of an
animal trained or used for fighting to attack a person and thereby
causes
the death of that person, the owner is guilty of a felony
and
shall be punished punishable
by imprisonment for life or by
imprisonment
for a maximum term of any term
of years greater
than 15 years.
(9) If a person incites an animal trained or used for fighting
or an animal that is the first or second generation offspring of an
animal trained or used for fighting to attack a person, but the
attack does not result in the death of the person, the owner is
guilty of a felony punishable by imprisonment for not more than 4
years or a fine of not more than $2,000.00, or both.
(10) If an animal trained or used for fighting or an animal
that is the first or second generation offspring of an animal
trained or used for fighting attacks a person without provocation
and causes the death of that person, the owner of the animal is
guilty
of a felony and shall be punished punishable by
imprisonment
for a maximum term of not
more than 15 years.
(11) If an animal trained or used for fighting or an animal
that is the first or second generation offspring of an animal
trained or used for fighting attacks a person without provocation,
but the attack does not cause the death of the person, the owner is
guilty of a misdemeanor punishable by imprisonment for not more
than 1 year or a fine of not more than $1,000.00, or both.
(12) Subsections (8) to (11) do not apply if the person
attacked was committing or attempting to commit an unlawful act on
the property of the owner of the animal.
(13) If an animal trained or used for fighting or an animal
that is the first or second generation offspring of a dog trained
or used for fighting goes beyond the property limits of its owner
without being securely restrained, the owner is guilty of a
misdemeanor punishable by imprisonment for not more than 90 days or
a fine of not less than $50.00 nor more than $500.00, or both.
(14) If an animal trained or used for fighting or an animal
that is the first or second generation offspring of a dog trained
or used for fighting is not securely enclosed or restrained on the
owner's property, the owner is guilty of a misdemeanor punishable
by imprisonment for not more than 90 days or a fine of not more
than $500.00, or both.
(15) Subsections (8) to (14) do not apply to any of the
following:
(a) A dog trained or used for fighting, or the first or second
generation offspring of a dog trained or used for fighting, that is
used by a law enforcement agency of the state or a county, city,
village, or township.
(b) A certified leader dog recognized and trained by a
national guide dog association for the blind or for persons with
disabilities.
(c)
A corporation licensed under the private security guard
act
of 1968 business and
security alarm act, 1968 PA 330, MCL
338.1051
to 338.1085 338.1083, when a dog
trained or used for
fighting, or the first or second generation offspring of a dog
trained or used for fighting, is used in accordance with the
private
security guard act of 1968 business and security alarm
act, 1968 PA 330, MCL 338.1051 to 338.1085
338.1083.
(16) An animal that has been used to fight in violation of
this section or that is involved in a violation of subsections (8)
to (14) shall be confiscated as contraband by a law enforcement
officer and shall not be returned to the owner, trainer, or
possessor of the animal. The animal shall be taken to a local
humane society or other animal welfare agency. If an animal owner,
trainer,
or possessor is convicted under of
violating subsection
(2) or subsections (8) to (14), the court shall award the animal
involved in the violation to the local humane society or other
animal welfare agency.
(17) Upon receiving an animal confiscated under this section,
or at any time thereafter, an appointed veterinarian, the humane
society, or other animal welfare agency may humanely euthanize the
animal if, in the opinion of that veterinarian, humane society, or
other animal welfare agency, the animal is injured or diseased past
recovery or the animal's continued existence is inhumane so that
euthanasia is necessary to relieve pain and suffering.
(18) A humane society or other animal welfare agency that
receives
an animal pursuant to under this section shall
apply to
the district court or municipal court for a hearing to determine
whether the animal shall be humanely euthanized because of its lack
of any useful purpose and the public safety threat it poses. The
court shall hold a hearing not more than 30 days after the filing
of the application and shall give notice of the hearing to the
owner of the animal. Upon a finding by the court that the animal
lacks any useful purpose and poses a threat to public safety, the
humane society or other animal welfare agency shall humanely
euthanize the animal. Expenses incurred in connection with the
housing, care, upkeep, or euthanasia of the animal by a humane
society or other animal welfare agency, or by a person, firm,
partnership, corporation, or other entity, shall be assessed
against the owner of the animal.
(19) Subject to subsections (16) to (18), all animals being
used or to be used in fighting, equipment, devices and money
involved in a violation of subsection (2) shall be forfeited to the
state. All other instrumentalities, proceeds, and substituted
proceeds of a violation of subsection (2) are subject to forfeiture
under chapter 47 of the revised judicature act of 1961, 1961 PA
236, MCL 600.4701 to 600.4709.
(20) The seizing agency may deposit money seized under
subsection (19) into an interest-bearing account in a financial
institution. As used in this subsection, "financial institution"
means a state or nationally chartered bank or a state or federally
chartered savings and loan association, savings bank, or credit
union whose deposits are insured by an agency of the United States
government and that maintains a principal office or branch office
located in this state under the laws of this state or the United
States.
(21) An attorney for a person who is charged with a violation
of subsection (2) involving or related to money seized under
subsection (19) shall be afforded a period of 60 days within which
to examine that money. This 60-day period shall begin to run after
notice of forfeiture is given but before the money is deposited
into a financial institution under subsection (20). If the attorney
general, prosecuting attorney, or city or township attorney fails
to sustain his or her burden of proof in forfeiture proceedings
under subsection (19), the court shall order the return of the
money, including any interest earned on money deposited into a
financial institution under subsection (20).
(22) (20)
This section does not apply to conduct that is
permitted by and is in compliance with any of the following:
(a)
Part 401 (wildlife conservation) of
the natural
resources and environmental protection act, 1994 PA 451, MCL
324.40101 to 324.40119.
(b)
Part 435 (hunting and fishing licensing) of
the natural
resources and environmental protection act, 1994 PA 451, MCL
324.43501
to 324.44106 324.43561.
(c)
Part 427 (breeders and dealers) of
the natural resources
and environmental protection act, 1994 PA 451, MCL 324.42701 to
324.42714.
(d)
Part 417 (private shooting preserves) of
the natural
resources and environmental protection act, 1994 PA 451, MCL
324.41701 to 324.41712.
(23) (21)
This section does not prohibit a person from being
charged with, convicted of, or punished for any other violation of
law that is committed by that person while violating this section.
Sec. 159j. (1) A person who violates section 159i is guilty of
a felony punishable by imprisonment for not more than 20 years or a
fine of not more than $100,000.00, or both.
(2) In addition to any penalty imposed under subsection (1),
the court may do 1 or more of the following with respect to a
person convicted under section 159i:
(a) Order the person to pay court costs.
(b) Order the person to pay to the state or local law
enforcement agency that handled the investigation and prosecution
the costs of the investigation and prosecution that are reasonably
incurred.
(3) The court shall hold a hearing to determine the amount of
court costs and other costs to be imposed under subsection (2).
(4) The court shall order a person convicted of a violation of
section 159i to criminally forfeit to the state any real, personal,
or intangible property in which he or she has an interest and that
was used in the course of, intended for use in the course of,
derived from, or realized through conduct in violation of section
159i, including any property constituting an interest in, means of
control over, or influence over the enterprise involved in the
violation and any property constituting proceeds derived from the
violation. The court's authority under this subsection also
includes, but is not limited to, the authority to do any of the
following:
(a) Order the convicted person to divest himself or herself of
any interest, direct or indirect, in the enterprise.
(b) Impose reasonable restrictions on the future activities or
investments of the convicted person, including prohibiting the
convicted person from engaging in the same type of endeavor as the
enterprise engaged in.
(c) Order the dissolution or reorganization of an enterprise
upon finding that, for the prevention of future criminal activity,
the public interest requires the dissolution or reorganization.
This
subdivision shall does
not apply to the extent such
action
that an order of dissolution or reorganization is preempted by
chapter
7 of the national labor relations act,
29 U.S.C. 151 et
seq
USC 141 to 187.
(d) Order the suspension or revocation of a license, permit,
or prior approval granted to an enterprise by any agency of the
state, county, or other political subdivision upon finding that,
for the prevention of future criminal activity, the public interest
requires the suspension or revocation.
(e) Order the surrender of the charter of a corporation
organized under the laws of this state or the revocation of a
certificate authorizing a foreign corporation to conduct business
within this state upon finding that the board of directors or a
managerial agent acting on behalf of the corporation, in conducting
the affairs of the corporation, authorized or engaged in
racketeering and, for the prevention of future criminal activity,
that the public interest requires that the charter or certificate
of the corporation be surrendered or revoked.
(5)
A sentence ordering criminal forfeiture
pursuant to
under this section shall not be entered unless the indictment or
information alleges the extent of the property subject to
forfeiture, or unless the sentence requires the forfeiture of
property that was not reasonably foreseen to be subject to
forfeiture at the time of the indictment or information, if the
prosecuting agency gave prompt notice to the defendant of the
property not reasonably foreseen to be subject to forfeiture when
it was discovered to be forfeitable.
(6) Reasonable attorney fees for representation in an action
under this chapter are not subject to criminal forfeiture under
this chapter.
(7) At sentencing and following a hearing, the court shall
determine the extent of the property subject to forfeiture, if any,
and shall enter an order of forfeiture. The court may base its
determination on evidence in the trial record.
(8)
If any property included in the order of forfeiture
pursuant
to under this section cannot be located or has been sold
to a bona fide purchaser for value, placed beyond the jurisdiction
of the court, substantially diminished in value by the conduct of
the defendant, or commingled with other property that cannot be
divided without difficulty or undue injury to innocent persons, the
court shall order forfeiture of any other reachable property of the
defendant up to the value of the property that is unreachable.
(9)
All property ordered forfeited pursuant to under this
section shall be retained by the law enforcement agency that seized
it for disposal pursuant to section 159r.
(10) The seizing agency may deposit money seized under this
section into an interest-bearing account in a financial
institution. As used in this subsection, "financial institution"
means a state or nationally chartered bank or a state or federally
chartered savings and loan association, savings bank, or credit
union whose deposits are insured by an agency of the United States
government and that maintains a principal office or branch office
located in this state under the laws of this state or the United
States.
(11) An attorney for a person who is charged with a violation
of section 159i involving or related to money seized by a law
enforcement agency that is subject to criminal forfeiture under
this section shall be afforded a period of 60 days within which to
examine that money. This 60-day period shall begin to run after
notice of forfeiture is given but before the money is deposited
into a financial institution under subsection (10). If the
prosecuting agency fails to sustain its burden of proof in criminal
proceedings under section 159i, the court shall order the return of
the money, including any interest earned on money deposited into a
financial institution under subsection (10).
(12) (10)
An order of criminal forfeiture entered under this
section shall authorize an appropriate law enforcement agency to
seize the property declared criminally forfeited under this section
upon those terms and conditions relating to the time and manner of
seizure the court determines proper.
(13) (11)
Criminal penalties under this section are not
mutually exclusive and do not preclude the application of any other
criminal or civil remedy under this section or any other provision
of law.
Sec. 535a. (1) As used in this section:
(a) "Bona fide purchaser for value" means a person who
purchases property for value in good faith and without notice of
any adverse claim to the property.
(b) "Chop shop" means any of the following:
(i) Any area, building, storage lot, field, or other premises
or place where 1 or more persons are engaged or have engaged in
altering, dismantling, reassembling, or in any way concealing or
disguising the identity of a stolen motor vehicle or of any major
component part of a stolen motor vehicle.
(ii) Any area, building, storage lot, field, or other premises
or place where there are 3 or more stolen motor vehicles present or
where there are major component parts from 3 or more stolen motor
vehicles present.
(c) "Major component part" means 1 of the following parts of a
motor vehicle:
(i) The engine.
(ii) The transmission.
(iii) The right or left front fender.
(iv) The hood.
(v) A door allowing entrance to or egress from the passenger
compartment of the vehicle.
(vi) The front or rear bumper.
(vii) The right or left rear quarter panel.
(viii) The deck lid, tailgate, or hatchback.
(ix) The trunk floor pan.
(x) The cargo box of a pickup.
(xi) The frame, or if the vehicle has a unitized body, the
supporting structure or structures that serve as the frame.
(xii) The cab of a truck.
(xiii) The body of a passenger vehicle.
(xiv) An airbag or airbag assembly.
(xv) A wheel or tire.
(xvi) Any other part of a motor vehicle that the secretary of
state determines is comparable in design or function to any of the
parts listed in subparagraphs (i) to (xv).
(d) "Motor vehicle" means either of the following:
(i) A device in, upon, or by which a person or property is or
may be transported or drawn upon a highway that is self-propelled
or that may be connected to and towed by a self-propelled device.
(ii) A land-based device that is self-propelled but not
designed for use upon a highway, including, but not limited to,
farm machinery, a bulldozer, or a steam shovel.
(2) Except as provided in subsection (3), a person who
knowingly owns, operates, or conducts a chop shop or who knowingly
aids and abets another person in owning, operating, or conducting a
chop shop is guilty of a felony punishable by imprisonment for not
more than 10 years or a fine of not more than $250,000.00, or both.
(3) Upon a second or subsequent conviction under this section,
the person convicted may be imprisoned for not more than 10 years
and shall be fined not less than $10,000.00 or more than
$250,000.00, or both.
(4) In addition to any other punishment, a person convicted of
violating this section shall be ordered to make restitution to the
rightful owner of a stolen motor vehicle or of a stolen major
component part, or to the owner's insurer if the owner has already
been compensated for the loss by the insurer, for any financial
loss sustained as a result of the theft of the motor vehicle or a
major component part. Restitution shall be imposed in addition to,
but not instead of, any imprisonment or fine imposed.
(5) All of the following are subject to seizure and, if a
person is charged with a violation or attempted violation of
subsection (2) and is convicted of a violation or attempted
violation of subsection (2) or section 415, 416, 535, or 536a,
subject to forfeiture:
(a) An engine, tool, machine, implement, device, chemical, or
substance used or designed for altering, dismantling, reassembling,
or in any other way concealing or disguising the identity of a
stolen motor vehicle or any major component part.
(b) A stolen motor vehicle or major component part found at
the site of a chop shop or a motor vehicle or major component part
for which there is probable cause to believe that it is stolen.
(c) A wrecker, car hauler, or any other motor vehicle that is
used or has been used to convey or transport a stolen motor vehicle
or major component part.
(d) Any book, record, money, negotiable instrument, or other
personal property or real property, except real property that is
the primary residence of the spouse or a dependent child of the
owner, that is or has been used in a chop shop operation.
(6) Except as provided in subsection (7), property described
in subsection (5) may be seized by a state or local law enforcement
agency upon process issued by the recorder's court of the city of
Detroit or the district or circuit court having jurisdiction over
the property. Seizure without process may be made in any of the
following cases:
(a) The seizure is incident to an arrest or pursuant to a
search warrant or an inspection under an administrative inspection
warrant.
(b) The property subject to seizure has been the subject of a
prior judgment in favor of this state in a forfeiture proceeding
based upon this section.
(c) Exigent circumstances exist that preclude obtaining
process and there is probable cause to believe that the property
was used or is intended to be used in violation of this section.
(7) To retain property for which seizure and forfeiture are
sought under this section pending the forfeiture hearing, a
licensed used or secondhand vehicle parts dealer or the owner may
post a bond in the amount of 1-1/2 times the value of the property.
This subsection does not apply to a motor vehicle or major
component part that is to be used as evidence in a criminal
proceeding.
(8) If property other than real property is seized under
subsection (6), the seizing law enforcement agency shall do 1 or
more
of the following, subject to subsection
(9) (10):
(a) Place the property under seal.
(b) Remove the property to a designated storage area.
(c)
Petition the recorder's court of the city of Detroit or
the
district or circuit court to appoint a custodian to
take
custody of the property and to remove it to an appropriate location
for disposition in accordance with law.
(9) The seizing agency may deposit money seized under
subsection (8) into an interest-bearing account in a financial
institution. As used in this subsection, "financial institution"
means a state or nationally chartered bank or a state or federally
chartered savings and loan association, savings bank, or credit
union whose deposits are insured by an agency of the United States
government and that maintains a principal office or branch office
located in this state under the laws of this state or the United
States.
(10) An attorney for a person who is charged with a violation
of this section involving or related to money seized by a law
enforcement agency under this section shall be afforded a period of
60 days within which to examine that money. This 60-day period
shall begin to run after notice is given under subsection (12) but
before the money is deposited into a financial institution under
subsection (9). If the attorney general or prosecuting attorney
fails to sustain his or her burden of proof in criminal proceedings
under this section, the court shall order the return of the money,
including any interest earned on money deposited into a financial
institution under subsection (9).
(11) (9)
If property is seized without process under
subsection (6), within 14 days after the seizure, the seizing
agency shall return the property to the person from whom it was
seized unless a hearing has been scheduled to determine whether the
seizure was proper and reasonable notice of the hearing has been
given.
(12) (10)
The rightful owner of any property that is to be
forfeited under subsection (5) shall be served notice at least 10
days before the matter is to be heard regarding the forfeiture and,
if the rightful owner did not know of and did not consent to the
commission of the crime, the property shall be returned to the
rightful owner. If the rightful owner of the property is not known
or cannot be found, notice may be served by publishing notice of
the forfeiture hearing not less than 10 days before the date of the
hearing in a newspaper of general circulation in the county where
the hearing is to be held. The notice shall contain a general
description of the property and any serial or registration numbers
on the property.
(13) (11)
A forfeiture of property encumbered by a bona fide
security interest is subject to the interest of the secured party
who did not know of or consent to the act or omission in violation
of this section.
(14) (12)
Any property seized under subsection (6) that was
stolen shall be returned to its rightful owner if that ownership
can be established to the satisfaction of the seizing law
enforcement agency. Any stolen property that is unclaimed after
seizure may be sold as provided by law.
(15) (13)
Any property forfeited under this section may be
sold pursuant to an order of the court. The proceeds of the sale
shall be distributed by the court having jurisdiction over the
forfeiture proceeding to the entity having budgetary authority over
the seizing law enforcement agency. If more than 1 law enforcement
agency was substantially involved in effecting the forfeiture, the
court having jurisdiction over the forfeiture proceeding shall
distribute equitably the proceeds of the sale among the entities
having budgetary authority over the seizing law enforcement
agencies. Twenty-five percent of the money received by an entity
under this subsection shall be used to enhance law enforcement
efforts pertaining to this section.
(16) (14)
This section does not apply to a person who is a
bona fide purchaser for value of the motor vehicle or major
component parts described in subsection (1).