April 14, 2005, Introduced by Reps. Schuitmaker, Van Regenmorter and Sak and referred to the Committee on Judiciary.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 80101, 80171, 80176, 80180, 80183, 80184,
80187, and 80190 (MCL 324.80101, 324.80171, 324.80176, 324.80180,
324.80183, 324.80184, 324.80187, and 324.80190), sections 80101,
80171, and 80190 as added by 1995 PA 58, section 80176 as amended
by 2001 PA 12, and sections 80180, 80183, 80184, and 80187 as
amended by 1996 PA 174.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 80101. As used in this part:
(a) "Alcoholic liquor" means that term as defined in section
1d of the Michigan vehicle code, 1949 PA 300, MCL 257.1d.
(b) (a)
"Anchored rafts" means
all types of nonpowered rafts
used for recreational purposes that are anchored seasonally on
waters of this state.
(c) (b)
"Associated equipment"
means any of the following
that are not radio equipment:
(i) An original system, part, or component of a boat at the
time that boat was manufactured, or a similar part or component
manufactured or sold for replacement.
(ii) Repair or improvement of an original or replacement
system, part, or component.
(iii) An accessory or equipment for, or appurtenance to, a boat.
(iv) A marine safety article, accessory, or equipment intended
for use by a person on board a boat.
(d) (c)
"Boat" means a vessel.
(e) (d)
"Boat livery" means a
business that holds a vessel
for renting, leasing, or chartering.
(f) (e)
"Controlled substance"
means that term as defined
in
section 7104 of the public health code, Act No. 368 of the
Public
Acts of 1978, being section 333.7104 of the Michigan
Compiled
Laws 1978 PA 368, MCL 333.7104.
(g) (f)
"Conviction" means a
final conviction, the payment
of a fine, a plea of guilty or nolo contendere if accepted by the
court, a finding of guilt, or a probate court disposition on a
violation of this part, regardless of whether the penalty is
rebated or suspended.
Sec. 80171. Unless otherwise specified under this part, a
violation of this part or rules promulgated under this part is a
misdemeanor. A political subdivision having adopted a local
ordinance in conformity with this part may provide that any
violation of the ordinance is a misdemeanor. Any person convicted
of reckless operation of a vessel as defined in section 80147, or
of
operating a vessel while under the influence of intoxicating
alcoholic liquor or narcotic drugs, or with any amount of a
controlled substance listed in schedule 1 under section 7212 of the
public health code, 1978 PA 368, MCL 333.7212, or a rule
promulgated under that section, or of a controlled substance
described in section 7214(a)(iv) of the public health code, 1978 PA
368, MCL 333.7214, in his or her body, in addition to any other
penalty, may be refused by the court having jurisdiction of the
violation the right of operating any vessel on any of the waters of
this state for a period of not more than 2 years.
Sec. 80176. (1) A person shall not operate a vessel on the
waters
of this state if either any of the following applies
apply:
(a)
The person is under the influence of intoxicating
alcoholic liquor or a controlled substance, or both.
(b)
The person has a blood alcohol content of 0.10 0.08
grams or more per 100 milliliters of blood, per 210 liters of
breath, or per 67 milliliters of urine.
(c) The person has in his or her body any amount of a
controlled substance listed in schedule 1 under section 7212 of the
public health code, 1978 PA 368, MCL 333.7212, or a rule
promulgated under that section, or of a controlled substance
described in section 7214(a)(iv) of the public health code, 1978 PA
368, MCL 333.7214.
(2) The owner of a vessel or a person in charge or in control
of a vessel shall not authorize or knowingly permit the vessel to
be
operated on the waters of this state by a person who if any of
the following apply:
(a)
The person is under the influence of intoxicating
alcoholic liquor or a controlled substance, or both. ,
or who
(b) The person has a blood alcohol content of 0.10 0.08
grams or more per 100 milliliters of blood, per 210 liters of
breath, or per 67 milliliters of urine, or has in his or her body
any amount of a controlled substance listed in schedule 1 under
section 7212 of the public health code, 1978 PA 368, MCL 333.7212,
or a rule promulgated under that section, or of a controlled
substance described in section 7214(a)(iv) of the public health
code, 1978 PA 368, MCL 333.7214.
(c) The person's ability to operate the vessel is visibly
impaired due to the consumption of alcoholic liquor, a controlled
substance, or a combination of alcoholic liquor and a controlled
substance.
(3) A person shall not operate a vessel on the waters of this
state
when, due to the consumption of an intoxicating alcoholic
liquor or a controlled substance, or both, the person's ability to
operate the vessel is visibly impaired. If a person is charged with
violating subsection (1), a finding of guilty under this subsection
may be rendered.
(4) A person who operates a vessel on the waters of this state
under
the influence of intoxicating alcoholic liquor or a
controlled
substance, or both, or with a blood alcohol content of
0.10
0.08 grams or more per 100
milliliters of blood, per 210
liters of breath, or per 67 milliliters of urine, or has in his or
her body any amount of a controlled substance listed in schedule 1
under section 7212 of the public health code, 1978 PA 368, MCL
333.7212, or a rule promulgated under that section, or of a
controlled substance described in section 7214(a)(iv) of the public
health code, 1978 PA 368, MCL 333.7214, and by the operation of
that vessel causes the death of another person is guilty of a
felony, punishable by imprisonment for not more than 15 years, or a
fine of not less than $2,500.00 or more than $10,000.00, or both.
(5)
A person who operates a vessel on the waters of this state
under
the influence of intoxicating liquor or a controlled
substance,
or both, or with a blood alcohol content of 0.10 grams
or
more per 100 milliliters of blood, per 210 liters of breath, or
per
67 milliliters of urine, in violation of subsection (1) or (3)
and by the operation of that vessel causes a serious impairment of
a body function of another person is guilty of a felony, punishable
by imprisonment for not more than 5 years, or a fine of not less
than $1,000.00 or more than $5,000.00, or both. As used in this
subsection,
"serious impairment of a body function" includes, but
is
not limited to, 1 or more of the following: means that term as
defined in section 58c of the Michigan vehicle code, 1949 PA 300,
MCL 257.58c.
(a)
Loss of a limb or use of a limb.
(b)
Loss of a hand, foot, finger, or thumb or use of a hand,
foot,
finger, or thumb.
(c)
Loss of an eye or ear or use of an eye or ear.
(d)
Loss or substantial impairment of a bodily function.
(e)
Serious visible disfigurement.
(f)
A comatose state that lasts for more than 3 days.
(g)
Measurable brain damage or mental impairment.
(h)
A skull fracture or other serious bone fracture.
(i)
Subdural hemorrhage or subdural hematoma.
Sec. 80180. (1) A peace officer, without a warrant, may arrest
a person if the peace officer has reasonable cause to believe that
the person was, at the time of an accident, the operator of a
vessel involved in the accident in this state while in violation of
section 80176(1), (3), (4), or (5) or a local ordinance
substantially corresponding to section 80176(1) or (3).
(2) A peace officer who has reasonable cause to believe that a
person was operating a vessel on the waters of this state, and
that,
by the consumption of intoxicating alcoholic liquor, the
person may have affected his or her ability to operate a vessel,
may require the person to submit to a preliminary chemical breath
analysis. The following apply with respect to a preliminary
chemical breath analysis:
(a) Only a peace officer who has successfully completed a
training course taught by a state-certified instructor in the
administration of the preliminary chemical breath analysis may
administer that test.
(b) A peace officer may arrest a person based in whole or in
part upon the results of a preliminary chemical breath analysis.
(c) The results of a preliminary chemical breath analysis are
admissible in a criminal prosecution for a crime described in
section 80187(1) or in an administrative hearing solely to assist
the court or hearing officer in determining a challenge to the
validity of an arrest. This subdivision does not limit the
introduction of other competent evidence offered to establish the
validity of an arrest.
(d) A person who submits to a preliminary chemical breath
analysis remains subject to the requirements of sections 80187 to
80190 for the purposes of chemical tests described in those
sections.
(e) A person who refuses to submit to a preliminary chemical
breath analysis upon a lawful request by a peace officer is
responsible for a state civil infraction and may be ordered to pay
a civil fine of not more than $100.00.
(3) A peace officer making an arrest under this part shall
take measures to assure that the vessel and its occupants are
safely returned to shore.
(4) If, within 60 days after the issuance of a citation for a
state civil infraction under this section, the person to whom the
citation is issued is not charged with a violation of section
80176(1), (3), (4), or (5) or a local ordinance substantially
corresponding to section 80176(1) or (3), the citation issued for
the state civil infraction is void. Upon application of the person
to whom the citation is issued, money paid by the person as a fine,
costs, or otherwise shall be immediately returned.
Sec. 80183. (1) The provisions of sections 80181 and 80182
relating to chemical testing do not limit the introduction of any
other competent evidence bearing upon the question of whether or
not
a person was impaired by, or under the influence of,
intoxicating
alcoholic liquor or a
controlled substance, or both,
or
whether the person had a blood alcohol content of 0.10 0.08
grams or more per 100 milliliters of blood, per 210 liters of
breath, or per 67 milliliters of urine, or whether the person had
any amount of a controlled substance listed in schedule 1 under
section 7212 of the public health code, 1978 PA 368, MCL 333.7212,
or a rule promulgated under that section, or of a controlled
substance described in section 7214(a)(iv) of the public health
code, 1978 PA 368, MCL 333.7214, in his or her body.
(2) If a chemical test described in sections 80181 and 80182
is administered, the results of the test shall be made available to
the person charged or the person's attorney upon written request to
the prosecution, with a copy of the request filed with the court.
The prosecution shall furnish the results at least 2 days before
the day of the trial. The results of the test shall be offered as
evidence by the prosecution in that trial. Failure to fully comply
with the request bars the admission of the results into evidence by
the prosecution.
Sec.
80184. (1) Except in a prosecution relating solely to a
violation
of section 80176(1)(b), the amount of alcohol in the
operator's
blood at the time alleged as shown by chemical analysis
of
the person's blood, urine, or breath gives rise to the following
presumptions:
(a)
If at the time defendant had an alcohol content of 0.07
grams
or less per 100 milliliters of blood, per 210 liters of
breath,
or per 67 milliliters of urine, it shall be presumed that
the
defendant's ability to operate a vessel was not impaired due to
the
consumption of intoxicating liquor and that the defendant was
not
under the influence of intoxicating liquor.
(b)
If at the time defendant had an alcohol content of more
than
0.07 grams but less than 0.10 grams per 100 milliliters of
blood,
per 210 liters of breath, or per 67 milliliters of urine, it
shall
be presumed that the defendant's ability to operate a vessel
was
impaired within the provisions of section 80176(3) due to the
consumption
of intoxicating liquor.
(c)
If at the time defendant had an alcohol content of 0.10
grams
or more per 100 milliliters of blood, per 210 liters of
breath,
or per 67 milliliters of urine, it shall be presumed that
the
defendant was under the influence of intoxicating liquor.
(2)
A person's refusal to submit to a
chemical test as
provided in sections 80181 and 80182 is admissible in a criminal
prosecution for a crime described in section 80187(1) only for the
purpose of showing that a test was offered to the defendant, but
not as evidence in determining innocence or guilt of the defendant.
The jury shall be instructed accordingly.
Sec. 80187. (1) A person who operates a vessel on the waters
of this state is considered to have given consent to chemical tests
of his or her blood, breath, or urine for the purpose of
determining the amount of alcohol or presence of a controlled
substance, or both, in his or her blood in all of the following
circumstances:
(a) The person is arrested for a violation of section
80176(1), (3), (4), or (5), or a local ordinance substantially
corresponding to section 80176(1) or (3).
(b) The person is arrested for negligent homicide,
manslaughter, or murder resulting from the operation of a vessel,
and the peace officer had reasonable grounds to believe that the
person was operating the vessel while impaired by, or under the
influence
of, intoxicating alcoholic liquor or a controlled
substance,
or both, or while having a blood alcohol content of
0.10
0.08 grams or more per 100
milliliters of blood, per 210
liters of breath, or per 67 milliliters of urine or while having in
his or her body any amount of a controlled substance listed in
schedule 1 under section 7212 of the public health code, 1978 PA
368, MCL 333.7212, or a rule promulgated under that section, or of
a controlled substance described in section 7214(a)(iv) of the
public health code, 1978 PA 368, MCL 333.7214.
(2) A person who is afflicted with hemophilia, diabetes, or a
condition requiring the use of an anticoagulant under the direction
of a physician shall not be considered to have given consent to the
withdrawal of blood.
(3) A chemical test described in subsection (1) shall be
administered as provided in sections 80181 and 80182.
Sec. 80190. (1) If a person who refuses to submit to a
chemical test pursuant to section 80181 or 80182 does not request a
hearing within 14 days of the date of notice pursuant to section
80189, the secretary of state shall issue an order that the person
not
operate a vessel on the waters of this state for 6 months 1
year or, for a second or subsequent refusal within 7
years, for 1
year
2 years.
(2) If a hearing is requested, the secretary of state shall
hold the hearing in the same manner and under the same conditions
as
provided in section 322 of the Michigan vehicle code, Act No.
300
of the Public Acts of 1949, being section 257.322 of the
Michigan Compiled Laws 1949 PA 300, MCL 257.322. A person shall
not order a hearing officer to make a particular finding on any
issue enumerated under subdivisions (a) to (d). Not less than 5
days' notice of the hearing shall be mailed to the person
requesting the hearing, to the peace officer who filed the report
under section 80188, and, if the prosecuting attorney requests
receipt of the notice, to the prosecuting attorney of the county
where the arrest was made. The hearing officer may administer
oaths, issue subpoenas for the attendance of necessary witnesses,
and grant a reasonable request for an adjournment. Not more than 1
adjournment shall be granted to a party, and the length of an
adjournment shall not exceed 14 days. A hearing under this
subsection shall be scheduled to be held within 45 days after the
date of arrest and, except for delay attributable to the
unavailability of the defendant, a witness, or material evidence or
to an interlocutory appeal or exceptional circumstances, but not
for delay attributable to docket congestion, shall be finally
adjudicated within 77 days after the date of arrest. The hearing
shall cover only the following issues:
(a) Whether the peace officer had reasonable grounds to
believe that the person had committed a crime described in section
80187(1).
(b) Whether the person was placed under arrest for a crime
described in section 80187(1).
(c) If the person refused to submit to the test upon the
request of the officer, whether the refusal was reasonable.
(d) Whether the person was advised of his or her rights under
section 80181.
(3) The hearing officer shall make a record of proceedings
held pursuant subsection (2). The record shall be prepared and
transcribed in accordance with section 86 of the administrative
procedures
act of 1969, Act No. 306 of the Public Acts of 1969,
being
section 24.286 of the Michigan Compiled Laws 1969 PA 306,
MCL 24.286. Upon notification of the filing of a petition for
judicial review pursuant to section 80194 and not less than 10 days
before the matter is set for review, the hearing officer shall
transmit to the court in which the petition is filed the original
or a certified copy of the official record of the proceedings. The
parties to the proceedings for judicial review may stipulate that
the record be shortened. A party unreasonably refusing to stipulate
to a shortened record may be taxed by the court in which the
petition is filed for the additional costs. The court may permit
subsequent corrections to the record.
(4) After a hearing, if the person who requested the hearing
does not prevail, the secretary of state shall order that the
person
not operate a vessel on the waters of this state for 6
months
1 year or, for a second or
subsequent refusal within 7
years,
for 1 year 2 years. The person may file a petition in the
circuit court of the county in which the arrest was made to review
the order as provided in section 80194. If after the hearing the
person who requested the hearing prevails, the peace officer who
filed the report under section 80188 may, with the consent of the
prosecuting attorney, file a petition in the circuit court of the
county in which the arrest was made to review the determination of
the hearing officer as provided in section 80194.
Enacting section 1. This amendatory act takes effect January
1, 2006.