HOUSE BILL No. 5337


     February 9, 2000, Introduced by Reps. Sanborn, Gosselin, Julian, Voorhees and Jansen and referred to the Committee on
Criminal Law and Corrections.


        A bill to amend 1949 PA 300, entitled

   "Michigan vehicle code,"

   by amending section 625a (MCL 257.625a), as amended by 1998 PA

   351.

               THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 1
           Sec. 625a.  (1) A peace officer may arrest a person without

 2
      a warrant under either of the following circumstances:

 3
           (a) The peace officer has reasonable cause to believe the

 4
      person was, at the time of an accident in this state, the opera-

 5
      tor of a vehicle involved in the accident and was operating the

 6
      vehicle in violation of section 625 or a local ordinance substan-

 7
      tially corresponding to section 625.

 8
           (b) The person is found in the driver's seat of a vehicle

 9
      parked or stopped on a highway or street within this state if any

10
      part of the vehicle intrudes into the roadway and the peace


   05165'99                                                 DRM
                                              2

 1
      officer has reasonable cause to believe the person was operating

 2
      the vehicle in violation of section 625 or a local ordinance sub-

 3
      stantially corresponding to section 625.

 4
           (2) A peace officer who has reasonable cause to believe that

 5
      a person was operating a vehicle upon a public highway or other

 6
      place open to the public or generally accessible to motor vehi-

 7
      cles, including an area designated for the parking of vehicles,

 8
      within this state and that the person by the consumption of

 9
      intoxicating liquor may have affected his or her ability to oper-

10
      ate a vehicle, or HAS reasonable cause to believe that a person

11
      was operating a commercial motor vehicle within the state while

12
      the person's blood, breath, or urine contained any measurable

13
      amount of alcohol or while the person had any detectable presence

14
      of intoxicating liquor, or HAS reasonable cause to believe that a

15
      person who is less than 21 years of age was operating a vehicle

16
      upon a public highway or other place open to the public or gener-

17
      ally accessible to motor vehicles, including an area designated

18
      for the parking of vehicles, within this state while the person

19
      had any bodily alcohol content as that term is defined in section

20
      625(6), may require the person to submit to a preliminary chemi-

21
      cal breath analysis.  The following provisions apply with respect

22
      to a preliminary chemical breath analysis administered under this

23
      subsection:

24
           (a) A peace officer may arrest a person based in whole or in

25
      part upon the results of a preliminary chemical breath analysis.

26
           (b) The results of a preliminary chemical breath analysis

27
      are admissible in a criminal prosecution for a crime enumerated



   05165'99
                                   3

 1
      in section 625c(1) or in an administrative hearing for 1 or more

 2
      of the following purposes:

 3
           (i) To assist the court or hearing officer in determining a

 4
      challenge to the validity of an arrest.  This subparagraph does

 5
      not limit the introduction of other competent evidence offered to

 6
      establish the validity of an arrest.

 7
           (ii) As evidence of the defendant's breath alcohol content,

 8
      if offered by the defendant to rebut testimony  elicited on

 9
      cross-examination of a defense witness  that the defendant's

10
      breath alcohol content was higher at the time of the charged

11
      offense than when a chemical test was administered under subsec-

12
      tion (6).

13
           (iii) As evidence of the defendant's breath alcohol content,

14
      if offered by the prosecution to rebut testimony  elicited on

15
      cross-examination of a prosecution witness  that the defendant's

16
      breath alcohol content was lower at the time of the charged

17
      offense than when a chemical test was administered under subsec-

18
      tion (6).

19
           (c) A person who submits to a preliminary chemical breath

20
      analysis remains subject to the requirements of sections 625c,

21
      625d, 625e, and 625f for purposes of chemical tests described in

22
      those sections.

23
           (d) Except as provided in subsection (5), a person who

24
      refuses to submit to a preliminary chemical breath analysis upon

25
      a lawful request by a peace officer is responsible for a civil

26
      infraction.





   05165'99
                                   4

 1
           (3) A peace officer shall use the results of a preliminary

 2
      chemical breath analysis conducted pursuant to this section to

 3
      determine whether to order a person out-of-service under

 4
      section 319d.  A peace officer shall order out-of-service as

 5
      required under section 319d a person who was operating a commer-

 6
      cial motor vehicle and who refuses to submit to a preliminary

 7
      chemical breath analysis as provided in this section.  This sec-

 8
      tion does not limit use of other competent evidence by the peace

 9
      officer to determine whether to order a person out-of-service

10
      under section 319d.

11
           (4) A person who was operating a commercial motor vehicle

12
      and who is requested to submit to a preliminary chemical breath

13
      analysis under this section shall be advised that refusing a

14
      peace officer's request to take a test described in this section

15
      is a misdemeanor punishable by imprisonment for not more than 93

16
      days or a fine of not more than $100.00, or both, and will result

17
      in the issuance of a 24-hour out-of-service order.

18
           (5) A person who was operating a commercial motor vehicle

19
      and who refuses to submit to a preliminary chemical breath analy-

20
      sis upon a peace officer's lawful request is guilty of a misde-

21
      meanor punishable by imprisonment for not more than 93 days or a

22
      fine of not more than $100.00, or both.

23
           (6) The following provisions apply with respect to chemical

24
      tests and analysis of a person's blood, urine, or breath, other

25
      than preliminary chemical breath analysis:

26
           (a) The amount of alcohol or presence of a controlled

27
      substance or both in a driver's blood or urine or the amount of



   05165'99
                                   5

 1
      alcohol in a person's breath at the time alleged as shown by

 2
      chemical analysis of the person's blood, urine, or breath is

 3
      admissible into evidence in any civil or criminal proceeding.

 4
           (b) A person arrested for a crime described in

 5
      section 625c(1) shall be advised of all of the following:

 6
           (i) If he or she takes a chemical test of his or her blood,

 7
      urine, or breath administered at the request of a peace officer,

 8
      he or she has the right to demand that a person of his or her own

 9
      choosing administer 1 of the chemical tests.

10
           (ii) The results of the test are admissible in a judicial

11
      proceeding as provided under this act and will be considered with

12
      other admissible evidence in determining the defendant's inno-

13
      cence or guilt.

14
           (iii) He or she is responsible for obtaining a chemical

15
      analysis of a test sample obtained pursuant to his or her own

16
      request.

17
           (iv) If he or she refuses the request of a peace officer to

18
      take a test described in subparagraph (i), a test shall not be

19
      given without a court order, but the peace officer may seek to

20
      obtain a court order.

21
           (v) Refusing a peace officer's request to take a test

22
      described in subparagraph (i) will result in the suspension of

23
      his or her operator's or chauffeur's license and vehicle group

24
      designation or operating privilege and in the addition of 6

25
      points to his or her driver record.

26
           (c) A sample or specimen of urine or breath shall be taken

27
      and collected in a reasonable manner.  Only a licensed physician,



   05165'99
                                   6

 1
      or an individual operating under the delegation of a licensed

 2
      physician under section 16215 of the public health code, 1978 PA

 3
      368, MCL 333.16215, qualified to withdraw blood and acting in a

 4
      medical environment, may withdraw blood at a peace officer's

 5
      request to determine the amount of alcohol or presence of a con-

 6
      trolled substance or both in the person's blood, as provided in

 7
      this subsection.  Liability for a crime or civil damages predi-

 8
      cated on the act of withdrawing or analyzing blood and related

 9
      procedures does not attach to a licensed physician or individual

10
      operating under the delegation of a licensed physician who with-

11
      draws or analyzes blood or assists in the withdrawal or analysis

12
      in accordance with this act unless the withdrawal or analysis is

13
      performed in a negligent manner.

14
           (d) A chemical test described in this subsection shall be

15
      administered at the request of a peace officer having reasonable

16
      grounds to believe the person has committed a crime described in

17
      section 625c(1).  A person who takes a chemical test administered

18
      at a peace officer's request as provided in this section shall be

19
      given a reasonable opportunity to have a person of his or her own

20
      choosing administer 1 of the chemical tests described in this

21
      subsection within a reasonable time after his or her detention.

22
      The test results are admissible and shall be considered with

23
      other admissible evidence in determining the defendant's inno-

24
      cence or guilt.  If the person charged is administered a chemical

25
      test by a person of his or her own choosing, the person charged

26
      is responsible for obtaining a chemical analysis of the test

27
      sample.



   05165'99
                                   7

 1
           (e) If, after an accident, the driver of a vehicle involved

 2
      in the accident is transported to a medical facility and a sample

 3
      of the driver's blood is withdrawn at that time for medical

 4
      treatment, the results of a chemical analysis of that sample are

 5
      admissible in any civil or criminal proceeding to show the amount

 6
      of alcohol or presence of a controlled substance or both in the

 7
      person's blood at the time alleged, regardless of whether the

 8
      person had been offered or had refused a chemical test.  The med-

 9
      ical facility or person performing the chemical analysis shall

10
      disclose the results of the analysis to a prosecuting attorney

11
      who requests the results for use in a criminal prosecution as

12
      provided in this subdivision.  A medical facility or person dis-

13
      closing information in compliance with this subsection is not

14
      civilly or criminally liable for making the disclosure.

15
           (f) If, after an accident, the driver of a vehicle involved

16
      in the accident is deceased, a sample of the decedent's blood

17
      shall be withdrawn in a manner directed by the medical examiner

18
      to determine the amount of alcohol or the presence of a con-

19
      trolled substance, or both, in the decedent's blood.  The medical

20
      examiner shall give the results of the chemical analysis of the

21
      sample to the law enforcement agency investigating the accident

22
      and that agency shall forward the results to the department of

23
      state police.

24
           (g) The department of state police shall promulgate uniform

25
      rules in compliance with the administrative procedures act of

26
      1969, 1969 PA 306, MCL 24.201 to 24.328, for the administration

27
      of chemical tests for the purposes of this section.  An



   05165'99
                                   8

 1
      instrument used for a preliminary chemical breath analysis may be

 2
      used for a chemical test described in this subsection if approved

 3
      under rules promulgated by the department of state police.

 4
           (7) The provisions of subsection (6) relating to chemical

 5
      testing do not limit the introduction of any other admissible

 6
      evidence bearing upon the question of whether a person was

 7
      impaired by, or under the influence of, intoxicating liquor or a

 8
      controlled substance, or a combination of intoxicating liquor and

 9
      a controlled substance, or whether the person had an alcohol con-

10
      tent of 0.10 grams or more per 100 milliliters of blood, per 210

11
      liters of breath, or per 67 milliliters of urine, or if the

12
      person is less than 21 years of age, whether the person had any

13
      bodily alcohol content within his or her body.  As used in this

14
      section, "any bodily alcohol content" means either of the

15
      following:

16
           (a) An alcohol content of not less than 0.02 grams or more

17
      than 0.07 grams per 100 milliliters of blood, per 210 liters of

18
      breath, or per 67 milliliters of urine.

19
           (b) Any presence of alcohol within a person's body resulting

20
      from the consumption of intoxicating liquor, other than consump-

21
      tion of intoxicating liquor as a part of a generally recognized

22
      religious service or ceremony.

23
           (8) If a chemical test described in subsection (6) is admin-

24
      istered, the test results shall be made available to the person

25
      charged or the person's attorney upon written request to the

26
      prosecution, with a copy of the request filed with the court.

27
      The prosecution shall furnish the results at least 2 days before



   05165'99
                                   9

 1
      the day of the trial.  The prosecution shall offer the test

 2
      results as evidence in that trial.  Failure to fully comply with

 3
      the request bars the admission of the results into evidence by

 4
      the prosecution.

 5
           (9) Except in a prosecution relating solely to a violation

 6
      of section 625(1)(b) or (6), the amount of alcohol in the

 7
      driver's blood, breath, or urine at the time alleged as shown by

 8
      chemical analysis of the person's blood, breath, or urine gives

 9
      rise to the following presumptions:

10
           (a) If there were at the time 0.07 grams or less of alcohol

11
      per 100 milliliters of the defendant's blood, per 210 liters of

12
      the defendant's breath, or per 67 milliliters of the defendant's

13
      urine, it is presumed that the defendant's ability to operate a

14
      motor vehicle was not impaired due to the consumption of intoxi-

15
      cating liquor and that the defendant was not under the influence

16
      of intoxicating liquor.

17
           (b) If there were at the time more than 0.07 grams but less

18
      than 0.10 grams of alcohol per 100 milliliters of the defendant's

19
      blood, per 210 liters of the defendant's breath, or per 67 milli-

20
      liters of the defendant's urine, it is presumed that the

21
      defendant's ability to operate a vehicle was impaired within the

22
      provisions of section 625(3) due to the consumption of intoxicat-

23
      ing liquor.

24
           (c) If there were at the time 0.10 grams or more of alcohol

25
      per 100 milliliters of the defendant's blood, per 210 liters of

26
      the breath, or per 67 milliliters of the defendant's urine, it is





   05165'99
                                  10

 1
      presumed that the defendant was under the influence of

 2
      intoxicating liquor.

 3
           (10) A person's refusal to submit to a chemical test as pro-

 4
      vided in subsection (6) is admissible in a criminal prosecution

 5
      for a crime described in section 625c(1) only to show that a test

 6
      was offered to the defendant, but not as evidence in determining

 7
      the defendant's innocence or guilt.  The jury shall be instructed

 8
      accordingly.








































   05165'99          Final page.                            DRM