New Forfeiture – Nuisance Statute Important to Potential Criminal Defendants.

House Bill 5230 amends 1961 Public Act 236 and becomes effective March 31, 2015.  It is found at Michigan Compiled Laws 600.3801.

It is a very broad tool for law enforcement under the guise of a nuisance statute. 

It permits the state to not merely seize but also forfeit personal and real property, such as a home of vehicle, when used for a very broad list of activities.  Those include any lewdness, assignation, prostitution, unlawful alcohol production, unlawful controlled substance production, or gambling. 

Why is it so broad?  Well, it does not define easily what is lewdness?  Does it apply to a single act gambling in a house?  Is the seizure and forfeiture excessive as compared the degree or nature of the offense? 

While some situations may seem reasonable, the breadth of such a statute can be concerning.  It is a big sword and how it is wielded and by whom depends upon individuals seeking to use its power.

If the real or personal property is used for any of these purposes, it can be labeled as a nuisance.

Another concern that arises is whether the one using the property for such activities is actually the legal owner.  The owner and user will both be named parties.  The state need not prove the owner knew the property was being used for such a purpose.  This in effect puts a burden on the owner or lessor to know what is going on in his/her property, but owners rarely have a right to enter a leased property.

The process for nuisance cases is much different than a typical civil suit.  There I no right to a jury.  The burden of proof is much less than proof beyond a reasonable doubt as in an actual criminal case.  There is no appointment of counsel.   The state need not wait until there is a conviction.  It need not prove actual guilt.  It need not prove that the property is still being used for that purpose.  It only needs to prove a general reputation that it was used for that purpose within the last 90 days. 

The property can then be taken and forfeited – sold.  The proceeds go to pay off secured liens, then costs incurred by the state to investigate and take the property, to sell the property, and remove the nuisance.  The rest goes to the state treasury.

Forfeiture of certain property in criminal cases is nothing new.  Vehicles in drinking and driving cases.  Firearms in weapons charges.  Those occur normally after a conviction.  In this case, a conviction is not necessary.

How this tool is used will be interesting to watch.