October 7, 2003, Introduced by Reps. Meisner and Van Regenmorter and referred to the Committee on Criminal Justice.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 81134 and 81136 (MCL 324.81134 and
324.81136), section 81134 as amended by 2001 PA 12 and section
81136 as amended by 1996 PA 175.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 81134. (1) A person who is under the influence of
2 intoxicating liquor or a controlled substance, as defined by
3 section 7104 of the public health code, 1978 PA 368, MCL
4 333.7104, or a combination of intoxicating liquor and a
5 controlled substance shall not operate an ORV.
6 (2) A person who has
an alcohol content of 0.10 0.08 grams
7 or more per 100 milliliters of blood, per 210 liters of breath,
8 or per 67 milliliters of urine shall not operate an ORV.
9 (3) A person who has in his or her body any amount of a
1 controlled substance listed in schedule 1 under section 7212 of
2 the public health code, 1978 PA 368, MCL 333.7212, or a rule
3 promulgated under that section, or of a controlled substance
4 described in section 7214(a)(iv) of the public health code, 1978
5 PA 368, MCL 333.7214, shall not operate an ORV.
6 (4) (3) The
owner or person in charge or in control of an
7 ORV shall not authorize or knowingly permit the ORV to be
8 operated by a person who
if any of the following apply:
9 (a) The person is under the influence of intoxicating liquor
10 or a controlled substance or a combination of intoxicating liquor
11 and a controlled substance.
12 (b) The person has an alcohol content of 0.08 grams or more
13 per 100 milliliters of blood, per 210 liters of breath, or per 67
14 milliliters of urine.
15 (c) The person's ability to operate an ORV is visibly
16 impaired due to the consumption of alcoholic liquor, a controlled
17 substance, or a combination of alcoholic liquor and a controlled
18 substance.
19 (5) (4) Except
as otherwise provided in this section, a
20 person who is convicted of a violation of subsection (1), (2),
21 or (3), or (4) is guilty of a misdemeanor,
punishable by
22 imprisonment for not more than 93 days, or a fine of not less
23 than $100.00 or more than $500.00, or both, together with costs
24 of the prosecution. As part of the sentence for a violation of
25 subsection (1), or
(2), or (3), the court shall order the
26 person convicted not to operate an ORV for a period of not less
27 than 6 months or more than 2 years.
1 (6) (5) On
a second conviction under subsection (1), or
2 (2), or (3) or a local ordinance substantially corresponding to
3 subsection (1), or
(2), or (3) within a period of 7 years, a
4 person is guilty of a misdemeanor, punishable by imprisonment for
5 not more than 1 year, or a fine of not more than $1,000.00, or
6 both. As part of the sentence, the court shall order the person
7 convicted not to operate an ORV for a period of not less than 1
8 year or more than 2 years.
9 (7) (6) On
a third or subsequent conviction within a period
10 of 10 years under
subsection (1), or (2), or (3) or a local
11 ordinance substantially
corresponding to subsection (1), or
12 (2), or (3), a person is guilty of a felony and shall be
13 sentenced to imprisonment for not less than 1 year or more than
14 5 years, or a fine of not less than $500.00 or more than $5,000,
15 or both. As part of the sentence, the court shall order the
16 person convicted not to operate an ORV for a period of not less
17 than 1 year or more than 2 years.
18 (8) (7) A
person who operates an ORV in violation of
19 subsection (1), or
(2), or (3) or section 81135 and by the
20 operation of that ORV causes the death of another person is
21 guilty of a felony punishable by imprisonment for not more than
22 15 years or a fine of not less than $2,500.00 or more than
23 $10,000.00, or both.
24 (9) (8) A
person who operates an ORV within this state in
25 violation of subsection
(1), or (2), or (3) or section 81135
26 and by the operation of that ORV causes a serious impairment of a
27 body function of another person is guilty of a felony punishable
1 by imprisonment for not more than 5 years or a fine of not less
2 than $1,000.00 or more than $5,000.00, or both. As used in this
3 subsection, "serious impairment of a body function" includes, but
4 is not limited to, 1 or more of the following:
5 (a) Loss of a limb or use of a limb.
6 (b) Loss of a hand, foot, finger, or thumb or use of a hand,
7 foot, finger, or thumb.
8 (c) Loss of an eye or ear or use of an eye or ear.
9 (d) Loss or substantial impairment of a bodily function.
10 (e) Serious visible disfigurement.
11 (f) A comatose state that lasts for more than 3 days.
12 (g) Measurable brain damage or mental impairment.
13 (h) A skull fracture or other serious bone fracture.
14 (i) Subdural hemorrhage or subdural hematoma.
15 (10) (9) As
part of the sentence for a violation of
16 subsection (1), or
(2), or (3), or a local ordinance
17 substantially
corresponding to subsection (1), or (2), or (3),
18 the court may order the person to perform service to the
19 community, as designated by the court, without compensation, for
20 a period not to exceed 12 days. The person shall reimburse the
21 state or appropriate local unit of government for the cost of
22 insurance incurred by the state or local unit of government as a
23 result of the person's activities under this subsection.
24 (11) (10) Before
imposing sentence for a violation of
25 subsection (1), or
(2), or (3) or a local ordinance
26 substantially
corresponding to subsection (1), or (2), or (3),
27 the court shall order the person to undergo screening and
1 assessment by a person or agency designated by the office of
2 substance abuse services, to determine whether the person is
3 likely to benefit from rehabilitative services, including alcohol
4 or drug education and alcohol or drug treatment programs. As
5 part of the sentence, the court may order the person to
6 participate in and successfully complete 1 or more appropriate
7 rehabilitative programs. The person shall pay for the costs of
8 the screening, assessment, and rehabilitative services.
9 (12) (11) Before
accepting a plea of guilty under this
10 section, the court shall advise the accused of the statutory
11 consequences possible as the result of a plea of guilty in
12 respect to suspension of the person's right to operate an ORV and
13 the penalty imposed for violation of this section.
14 (13) (12) Each
municipal judge and each clerk of a court of
15 record shall keep a full record of every case in which a person
16 is charged with a violation of this section. The municipal judge
17 or clerk of the court of record shall prepare and immediately
18 forward to the secretary of state an abstract of the court of
19 record for each case charging a violation of this section.
20 Sec. 81136. (1) In a criminal prosecution for violating
21 section 81134 or 81135 or a local ordinance substantially
22 corresponding to section 81134 or 81135, or in a criminal
23 prosecution for negligent homicide or manslaughter resulting from
24 the operation of an ORV while the operator is alleged to have
25 been impaired by or under the influence of intoxicating liquor or
26 a controlled substance or a combination of intoxicating liquor
27 and a controlled substance, or to have had a blood alcohol
1 content of 0.10 0.08
grams or more per 100 milliliters of
2 blood, per 210 liters of breath, or per 67 milliliters of urine,
3 the amount of alcohol or type or amount of a controlled substance
4 in the operator's blood at the time alleged as shown by chemical
5 analysis of the operator's blood, urine, or breath shall be
6 admissible into evidence.
7 (2) If a chemical test of an operator's blood, urine, or
8 breath is given, the results of the test shall be made available
9 to the person charged with an offense enumerated in subsection
10 (1) or the person's attorney upon written request to the
11 prosecution, with a copy of the request filed with the court.
12 The prosecution shall furnish the report at least 2 days before
13 the day of the trial and the results shall be offered as evidence
14 by the prosecution in a criminal proceeding. Failure to fully
15 comply with the request shall bar the admission of the results
16 into evidence by the prosecution.
17 (3) Except in a
prosecution relating solely to a violation
18 of section 81134(2),
the amount of alcohol in the operator's
19 blood at the time
alleged as shown by chemical analysis of the
20 operator's blood,
urine, or breath shall give rise to the
21 following
presumptions:
22 (a) If at the time
the operator had an alcohol content of
23 0.07 grams or less per
100 milliliters of blood, per 210 liters
24 of breath, or per 67
milliliters of urine, it shall be presumed
25 that the operator was
not under the influence of intoxicating
26 liquor.
27 (b) If at the time
the operator had an alcohol content of
1 more than 0.07 grams
but less than 0.10 grams per 100 milliliters
2 of blood, per 210
liters of breath, or per 67 milliliters of
3 urine, it shall be
presumed that the operator's ability to
4 operate an ORV was
impaired within the provisions of section
5 81135 due to the
consumption of intoxicating liquor.
6 (c) If at the time
the operator had an alcohol content of
7 0.10 grams or more per
100 milliliters of blood, per 210 liters
8 of breath, or per 67
milliliters of urine, it shall be presumed
9 that the operator was
under the influence of intoxicating
10 liquor.
11 (3) (4) A
sample or specimen of urine or breath shall be
12 taken and collected in a reasonable manner. Only a licensed
13 physician, or a licensed nurse or medical technician under the
14 direction of a licensed physician and qualified to withdraw blood
15 acting in a medical environment, at the request of a peace
16 officer, may withdraw blood for the purpose of determining the
17 alcoholic content of the blood under this part. Liability for a
18 crime or civil damages predicated on the act of withdrawing blood
19 and related procedures shall not attach to a qualified person who
20 withdraws blood or assists in the withdrawal in accordance with
21 this part unless the withdrawal is performed in a negligent
22 manner.
23 (4) (5) A
person arrested for a crime enumerated in
24 subsection (1) who takes a chemical test administered at the
25 request of a peace officer, as provided in this part, shall be
26 given a reasonable opportunity to have a person of his or her own
27 choosing administer 1 of the chemical tests described in this
1 section within a reasonable time after his or her detention, and
2 the results of the test shall be admissible and shall be
3 considered with other competent evidence in determining the
4 defendant's innocence or guilt of a crime enumerated in
5 subsection (1). If the person arrested is administered a
6 chemical test by a person of his or her own choosing, the person
7 arrested shall be responsible for obtaining a chemical analysis
8 of the test sample. The person shall be informed that he or she
9 has the right to demand that a person of his or her choosing
10 administer 1 of the chemical tests described in this section,
11 that the results of the test shall be admissible and shall be
12 considered with other competent evidence in determining the
13 innocence or guilt of the defendant, and that the person arrested
14 shall be responsible for obtaining a chemical analysis of the
15 test sample.
16 (5) (6) A
person arrested shall be advised that if the
17 person refuses the request of a peace officer to take a test
18 described in this section, a test shall not be given without a
19 court order. The person arrested shall also be advised that the
20 person's refusal of the request of a peace officer to take a test
21 described in this section shall result in the suspension of the
22 person's right to operate an ORV.
23 (6) (7) This
section shall not be construed as limiting the
24 introduction of any other competent evidence bearing upon the
25 question of whether or not the defendant was impaired by or under
26 the influence of intoxicating liquor or a controlled substance,
27 or a combination of intoxicating liquor and a controlled
1 substance, or whether the person had a blood alcohol content of
2 0.10 0.08 grams or more per 100 milliliters of blood,
per 210
3 liters of breath, or per 67 milliliters of urine.
4 (7) (8) If
a jury instruction regarding a defendant's
5 refusal to submit to a chemical test under this section is
6 requested by the prosecution or the defendant, the jury
7 instruction shall be given as follows:
8 "Evidence was admitted in this case which, if believed by the
9 jury, could prove that the defendant had exercised his or her
10 right to refuse a chemical test. You are instructed that such a
11 refusal is within the statutory rights of the defendant and is
12 not evidence of the defendant's guilt. You are not to consider
13 such a refusal in determining the guilt or innocence of the
14 defendant.".
15 (8) (9) If
after an accident the operator of an ORV
16 involved in the accident is transported to a medical facility and
17 a sample of the operator's blood is withdrawn at that time for
18 the purpose of medical treatment, the results of a chemical
19 analysis of that sample shall be admissible in a criminal
20 prosecution for a crime described in subsection (1) to show the
21 amount of alcohol or presence of a controlled substance, or both,
22 in the person's blood at the time alleged, regardless of whether
23 the person had been offered or had refused a chemical test. The
24 medical facility or person performing the chemical analysis shall
25 disclose the results of the analysis to a prosecuting attorney
26 who requests the results for use in a criminal prosecution as
27 provided in this subsection. A medical facility or person
1 disclosing information in compliance with this subsection shall
2 not be civilly or criminally liable for making the disclosure.
3 (9) (10) If
after an accident the operator of an ORV
4 involved in the accident is deceased, a sample of the decedent's
5 blood shall be withdrawn in a manner directed by the medical
6 examiner for the purpose of determining blood alcohol content or
7 presence of a controlled substance, or both. The medical
8 examiner shall give the results of the chemical analysis to the
9 law enforcement agency investigating the accident, and that
10 agency shall forward the results to the department of state
11 police.
12 Enacting section 1. This amendatory act takes effect
13 January 1, 2004.