SB-0637, As Passed House, March 25, 2004

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 637

                                                                             A bill to amend 1998 PA 58, entitled                                              

"Michigan liquor control code of 1998,"                                     

by amending section 703 (MCL 436.1703), as amended by 1999 PA               

53.                                                                         

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

1       Sec. 703.  (1) A minor shall not purchase or attempt to                     

2   purchase alcoholic liquor, consume or attempt to consume                    

3   alcoholic liquor,  or  possess or attempt to possess alcoholic              

4   liquor, or have any bodily alcohol content, except as provided in           

5   this section.   Notwithstanding section 909, a A minor who                 

6   violates this subsection is guilty of a misdemeanor punishable by           

7   the following fines and sanctions  ,  and is not subject to the             

8   penalties prescribed in section 909:                                        

9       (a) For the first violation a fine of not more than $100.00,                

10  and may be ordered to participate in substance abuse prevention             

Senate Bill No. 637 (H-2) as amended February 12, 2004

1   services or substance abuse treatment and rehabilitation services           

2   as defined in section 6107 of the public health code, 1978 PA               

3   368, MCL 333.6107, and designated by the administrator of                   

4   substance abuse services, and may be ordered to perform community           

5   service and to undergo substance abuse screening and assessment             

6   at his or her own expense as described in subsection  (3) (4).             

7       (b) For a violation of this subsection following a prior                    

8   conviction or juvenile adjudication for a violation of this                 

9   subsection,  or  section 33b(1) of former 1933 (Ex Sess) PA 8, or           

10  a local ordinance substantially corresponding to this subsection            

11  or section 33b(1) of former 1933 (Ex Sess) PA 8, by imprisonment            

12  for not more than 30 days but only if the minor has been found by           

13  the court to have violated an order of probation[, failed to successfully complete any treatment, screening, or community service ordered by the court, or failed to pay any fine] for that                                                

14  conviction or juvenile adjudication, a fine of not more than                

15  $200.00, or both, and may be ordered to participate in substance            

16  abuse prevention services or substance abuse treatment and                  

17  rehabilitation services as defined in section 6107 of the public            

18  health code, 1978 PA 368, MCL 333.6107, and designated by the               

19  administrator of substance abuse services, to perform community             

20  service, and to undergo substance abuse screening and assessment            

21  at his or her own expense as described in subsection  (3) (4).             

22      (c) For a violation of this subsection following 2 or more                  

23  prior convictions or juvenile adjudications for a violation of              

24  this subsection,  or  section 33b(1) of former 1933 (Ex Sess) PA            

25  8, or a local ordinance substantially corresponding to this                 

26  subsection or section 33b(1) of former 1933 (Ex Sess) PA 8, by              

27  imprisonment for not more than 60 days but only if the minor has            

Senate Bill No. 637 (H-2) as amended February 12, 2004

1   been found by the court to have violated an order of probation[, failed to successfully complete any treatment, screening, or community service ordered by the court, or failed to pay any fine]

2   for that conviction or juvenile adjudication, a fine of not more            

3   than $500.00, or both, and may be ordered to participate in                 

4   substance abuse prevention services or substance abuse treatment            

5   and rehabilitation services as defined in section 6107 of the               

6   public health code, 1978 PA 368, MCL 333.6107, and designated by            

7   the administrator of substance abuse services, to perform                   

8   community service, and to undergo substance abuse screening and             

9   assessment at his or her own expense as described in subsection             

10  (3) (4).                                                                  

11      (2) A person who furnishes fraudulent identification to a                   

12  minor, or notwithstanding subsection (1) a minor who uses                   

13  fraudulent identification to purchase alcoholic liquor, is guilty           

14  of a misdemeanor punishable by imprisonment for not more than 93            

15  days or a fine of not more than $100.00, or both.                           

16  (3) When an individual who has not previously been convicted                

17  of or received a juvenile adjudication for a violation of                   

18  subsection (1) pleads guilty to a violation of subsection (1) or            

19  offers a plea of admission in a juvenile delinquency proceeding             

20  for a violation of subsection (1), the court, without entering a            

21  judgment of guilt in a criminal proceeding or a determination in            

22  a juvenile delinquency proceeding that the juvenile has committed           

23  the offense and with the consent of the accused, may defer                  

24  further proceedings and place the individual on probation upon              

25  terms and conditions that include, but are not limited to, the              

26  sanctions set forth in subsection (1)(a), payment of the costs              

27  including minimum state cost as provided for in section 18m of              

1   chapter XIIA of the probate code of 1939, 1939 PA 288, MCL                  

2   712A.18m, and section 1j of chapter IX of the code of criminal              

3   procedure, 1927 PA 175, MCL 769.1j, and payment of a probation              

4   supervision fee as prescribed in section 3c of chapter XI of the            

5   code of criminal procedure, 1927 PA 175, MCL 771.3c.  Upon                  

6   violation of a term or condition of probation or upon a finding             

7   that the individual is utilizing this subsection in another                 

8   court, the court may enter an adjudication of guilt, or a                   

9   determination in a juvenile delinquency proceeding that the                 

10  individual has committed the offense, and proceed as otherwise              

11  provided by law.  Upon fulfillment of the terms and conditions of           

12  probation, the court shall discharge the individual and dismiss             

13  the proceedings.  Discharge and dismissal under this section                

14  shall be without adjudication of guilt or without a determination           

15  in a juvenile delinquency proceeding that the individual has                

16  committed the offense and is not a conviction or juvenile                   

17  adjudication for purposes of this section or for purposes of                

18  disqualifications or disabilities imposed by law upon conviction            

19  of a crime, including the additional penalties imposed for second           

20  or subsequent convictions or juvenile adjudications under                   

21  subsection (1)(b) and (c).  There may be only 1 discharge or                

22  dismissal under this subsection as to an individual.  The court             

23  shall maintain a nonpublic record of the matter while proceedings           

24  are deferred and the individual is on probation under this                  

25  subsection.  The secretary of state shall retain a nonpublic                

26  record of a plea and of the discharge and dismissal under this              

27  subsection.  This record shall be furnished to any of the                   

1   following:                                                                  

2       (a) To a court, prosecutor, or police agency upon request for               

3   the purpose of determining if an individual has already utilized            

4   this subsection.                                                            

5   (b) To the department of corrections, a prosecutor, or a law                

6   enforcement agency, upon the department's, a prosecutor's, or a             

7   law enforcement agency's request, subject to all of the following           

8   conditions:                                                                 

9                                                                                (i) At the time of the request, the individual is an employee                       

10  of the department of corrections, the prosecutor, or the law                

11  enforcement agency, or an applicant for employment with the                 

12  department of corrections, the prosecutor, or the law enforcement           

13  agency.                                                                     

14      (ii) The record is used by the department of corrections, the                

15  prosecutor, or the law enforcement agency only to determine                 

16  whether an employee has violated his or her conditions of                   

17  employment or whether an applicant meets criteria for employment.

18  (4)  (3)  The court may order the person convicted of                       

19  violating subsection (1) to undergo screening and assessment by a           

20  person or agency as designated by the substance abuse                       

21  coordinating agency as defined in section 6103 of the public                

22  health code, 1978 PA 368, MCL 333.6103, in order to determine               

23  whether the person is likely to benefit from rehabilitative                 

24  services, including alcohol or drug education and alcohol or drug           

25  treatment programs.                                                         

26  (5)  (4)  The secretary of state shall suspend the operator's               

27  or chauffeur's license of an individual convicted of violating              

1   subsection (1) or (2) as provided in section 319 of the Michigan            

2   vehicle code, 1949 PA 300, MCL 257.319.                                     

3   (6)  (5)  A peace officer who has reasonable cause to believe               

4   a minor has consumed alcoholic liquor or has any bodily alcohol             

5   content may require the person to submit to a preliminary                   

6   chemical breath analysis.  A peace officer may arrest a person              

7   based in whole or in part upon the results of a preliminary                 

8   chemical breath analysis.  The results of a preliminary chemical            

9   breath analysis or other acceptable blood alcohol test are                  

10  admissible in a criminal prosecution to determine whether the               

11  minor has consumed or possessed alcoholic liquor or had any                 

12  bodily alcohol content.  A minor who refuses to submit to a                 

13  preliminary chemical breath test analysis as required in this               

14  subsection is responsible for a state civil infraction and may be           

15  ordered to pay a civil fine of not more than $100.00.                       

16  (7)  (6)  A law enforcement agency, upon determining that a                 

17  person less than 18 years of age who is not emancipated under               

18  1968 PA 293, MCL 722.1 to 722.6, allegedly consumed, possessed,             

19  purchased alcoholic liquor,  or  attempted to consume, possess,             

20  or purchase alcoholic liquor, or had any bodily alcohol content

21  in violation of subsection (1) shall notify the parent or                   

22  parents, custodian, or guardian of the person as to the nature of           

23  the violation if the name of a parent, guardian, or custodian is            

24  reasonably ascertainable by the law enforcement agency.  The                

25  notice required by this subsection shall be made not later than             

26  48 hours after the law enforcement agency determines that the               

27  person who allegedly violated subsection (1) is less than 18                

1   years of age and not emancipated under 1968 PA 293, MCL 722.1 to            

2   722.6.  The notice may be made by any means reasonably calculated           

3   to give prompt actual notice including, but not limited to,                 

4   notice in person, by telephone, or by first-class mail.  If an              

5   individual less than 17 years of age is incarcerated for                    

6   violating subsection (1), his or her parents or legal guardian              

7   shall be notified immediately as provided in this subsection.               

8   (8)  (7)  This section does not prohibit a minor from                       

9   possessing alcoholic liquor during regular working hours and in             

10  the course of his or her employment if employed by a person                 

11  licensed by this act, by the commission, or by an agent of the              

12  commission, if the alcoholic liquor is not possessed for his or             

13  her personal consumption.                                                   

14  (9)  (8)  This section does not limit the civil or criminal                 

15  liability of the vendor or the vendor's clerk, servant, agent, or           

16  employee for a violation of this act.                                       

17  (10)  (9)  The consumption of alcoholic liquor by a minor who               

18  is enrolled in a course offered by an accredited postsecondary              

19  educational institution in an academic building of the                      

20  institution under the supervision of a faculty member is not                

21  prohibited by this act if the purpose of the consumption is                 

22  solely educational and is a requirement of the course.                      

23  (11)  (10)  The consumption by a minor of sacramental wine in               

24  connection with religious services at a church, synagogue, or               

25  temple is not prohibited by this act.                                       

26  (12)  (11)  Subsection (1) does not apply to a minor who                    

27  participates in either or both of the following:                            

Senate Bill No. 637 (H-2) as amended March 25, 2004

1       (a) An undercover operation in which the minor purchases or                 

2   receives alcoholic liquor under the direction of the person's               

3   employer and with the prior approval of the local prosecutor's              

4   office as part of an employer-sponsored internal enforcement                

5   action.                                                                     

6       (b) An undercover operation in which the minor purchases or                 

7   receives alcoholic liquor under the direction of the state                  

8   police, the commission, or a local police agency as part of an              

9   enforcement action unless the initial or contemporaneous purchase           

10  or receipt of alcoholic liquor by the minor was not under the               

11  direction of the state police, the commission, or the local                 

12  police agency and was not part of the undercover operation.                 

13  (13)  (12)  The state police, the commission, or a local                    

14  police agency shall not recruit or attempt to recruit a minor for           

15  participation in an undercover operation at the scene of a                  

16  violation of subsection (1), section 801(2), or section 701(1).             

[(14) In a criminal prosecution for the violation of subsection (1) concerning a minor having any bodily alcohol content, it is an affirmative defense that the minor consumed the alcoholic liquor in a venue or location where that consumption is legal.

17  (15)] As used in this section, "any bodily alcohol content"                 

18  means either of the following:                                              

19      (a) An alcohol content of 0.02 grams or more per 100                        

20  milliliters of blood, per 210 liters of breath, or per 67                   

21  milliliters of urine.                                                       

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

23  from the consumption of alcoholic liquor, other than consumption            

24  of alcoholic liquor as a part of a generally recognized religious           

25  service or ceremony.

26      Enacting section 1.  This amendatory act takes effect                       

27  September 1, 2004.                                                          

1       Enacting section 2.  This amendatory act does not take                      

2   effect unless House Bill No. 5120 of the 92nd Legislature is                

3   enacted into law.