September 7, 2005, Introduced by Senator SWITALSKI and referred to the Committee on Judiciary.
A bill to amend 1949 PA 300, entitled
"Michigan vehicle code,"
by amending sections 625a, 625c, 625d, and 625f (MCL 257.625a,
257.625c, 257.625d, and 257.625f), sections 625a, 625c, and 625f as
amended by 2003 PA 61 and section 625d as amended by 1994 PA 211.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 625a. (1) A peace officer may arrest a person without a
warrant under either of the following circumstances:
(a) The peace officer has reasonable cause to believe the
person was, at the time of an accident in this state, the operator
of a vehicle involved in the accident and was operating the vehicle
in violation of section 625 or a local ordinance substantially
corresponding to section 625.
(b) The person is found in the driver's seat of a vehicle
parked or stopped on a highway or street within this state if any
part of the vehicle intrudes into the roadway and the peace officer
has reasonable cause to believe the person was operating the
vehicle in violation of section 625 or a local ordinance
substantially corresponding to section 625.
(2) A peace officer who has reasonable cause to believe that a
person was operating a vehicle upon a public highway or other place
open to the public or generally accessible to motor vehicles,
including an area designated for the parking of vehicles, within
this state and that the person by the consumption of alcoholic
liquor may have affected his or her ability to operate a vehicle,
or reasonable cause to believe that a person was operating a
commercial motor vehicle within the state while the person's blood,
breath, or urine contained any measurable amount of alcohol or
while the person had any detectable presence of alcoholic liquor,
or reasonable cause to believe that a person who is less than 21
years of age was operating a vehicle upon a public highway or other
place open to the public or generally accessible to motor vehicles,
including an area designated for the parking of vehicles, within
this state while the person had any bodily alcohol content as that
term is defined in section 625(6), may require the person to submit
to a preliminary chemical breath analysis. The following provisions
apply with respect to a preliminary chemical breath analysis
administered under this subsection:
(a) A peace officer may arrest a person based in whole or in
part upon the results of a preliminary chemical breath analysis.
(b) The results of a preliminary chemical breath analysis are
admissible in a criminal prosecution for a crime enumerated in
section 625c(1) or in an administrative hearing for 1 or more of
the following purposes:
(i) To assist the court or hearing officer in determining a
challenge to the validity of an arrest. This subparagraph does not
limit the introduction of other competent evidence offered to
establish the validity of an arrest.
(ii) As evidence of the defendant's breath alcohol content, if
offered by the defendant to rebut testimony elicited on cross-
examination of a defense witness that the defendant's breath
alcohol content was higher at the time of the charged offense than
when a chemical test was administered under subsection (6).
(iii) As evidence of the defendant's breath alcohol content, if
offered by the prosecution to rebut testimony elicited on cross-
examination of a prosecution witness that the defendant's breath
alcohol content was lower at the time of the charged offense than
when a chemical test was administered under subsection (6).
(c) A person who submits to a preliminary chemical breath
analysis remains subject to the requirements of sections 625c,
625d, 625e, and 625f for purposes of chemical tests described in
those sections.
(d) Except as provided in subsection (5), a person who refuses
to submit to a preliminary chemical breath analysis upon a lawful
request by a peace officer is responsible for a civil infraction.
(3) A peace officer shall use the results of a preliminary
chemical breath analysis conducted pursuant to this section to
determine whether to order a person out-of-service under section
319d. A peace officer shall order out-of-service as required under
section 319d a person who was operating a commercial motor vehicle
and who refuses to submit to a preliminary chemical breath analysis
as provided in this section. This section does not limit use of
other competent evidence by the peace officer to determine whether
to order a person out-of-service under section 319d.
(4) A person who was operating a commercial motor vehicle and
who is requested to submit to a preliminary chemical breath
analysis under this section shall be advised that refusing a peace
officer's request to take a test described in this section is a
misdemeanor punishable by imprisonment for not more than 93 days or
a fine of not more than $100.00, or both, and will result in the
issuance of a 24-hour out-of-service order.
(5) A person who was operating a commercial motor vehicle and
who refuses to submit to a preliminary chemical breath analysis
upon a peace officer's lawful request is guilty of a misdemeanor
punishable by imprisonment for not more than 93 days or a fine of
not more than $100.00, or both.
(6) The following provisions apply with respect to chemical
tests and analysis of a person's blood, urine, or breath, other
than preliminary chemical breath analysis:
(a) The amount of alcohol or presence of a controlled
substance or both in a driver's blood or urine or the amount of
alcohol in a person's breath at the time alleged as shown by
chemical analysis of the person's blood, urine, or breath is
admissible into evidence in any civil or criminal proceeding and is
presumed to be the same as at the time the person operated the
vehicle.
(b)
A The person arrested for a crime described in
section
625c(1)
shall be advised of all of the
following:
(i) If he or she takes a chemical test of his or her blood,
urine, or breath administered at the request of a peace officer, he
or she has the right to demand that a person of his or her own
choosing administer 1 of the chemical tests.
(ii) The results of the test are admissible in a judicial
proceeding as provided under this act and will be considered with
other admissible evidence in determining the defendant's innocence
or guilt.
(iii) He or she is responsible for obtaining a chemical analysis
of a test sample obtained at his or her own request.
(iv) If he or she refuses the request of a peace officer to
take a test described in subparagraph (i), a test shall not be given
without a court order, but the peace officer may seek to obtain a
court order.
(v) Refusing a peace officer's request to take a test
described in subparagraph (i) will result in the suspension of his
or her operator's or chauffeur's license and vehicle group
designation or operating privilege and in the addition of 6 points
to his or her driver record.
(c) A sample or specimen of urine or breath shall be taken and
collected in a reasonable manner. Only a licensed physician, or an
individual operating under the delegation of a licensed physician
under section 16215 of the public health code, 1978 PA 368, MCL
333.16215, qualified to withdraw blood and acting in a medical
environment, may withdraw blood at a peace officer's request to
determine the amount of alcohol or presence of a controlled
substance or both in the person's blood, as provided in this
subsection. Liability for a crime or civil damages predicated on
the act of withdrawing or analyzing blood and related procedures
does not attach to a licensed physician or individual operating
under the delegation of a licensed physician who withdraws or
analyzes blood or assists in the withdrawal or analysis in
accordance with this act unless the withdrawal or analysis is
performed in a negligent manner.
(d) A chemical test described in this subsection shall be
administered at the request of a peace officer having reasonable
grounds to believe the person has committed a crime described in
section 625c(1). A person who takes a chemical test administered at
a peace officer's request as provided in this section shall be
given a reasonable opportunity to have a person of his or her own
choosing administer 1 of the chemical tests described in this
subsection within a reasonable time after his or her detention. The
test results are admissible and shall be considered with other
admissible evidence in determining the defendant's innocence or
guilt. If the person charged is administered a chemical test by a
person of his or her own choosing, the person charged is
responsible for obtaining a chemical analysis of the test sample.
(e) If, after an accident, the driver of a vehicle involved in
the accident is transported to a medical facility and a sample of
the driver's blood is withdrawn at that time for medical treatment,
the results of a chemical analysis of that sample are admissible in
any civil or criminal proceeding to show the amount of alcohol or
presence of a controlled substance or both in the person's blood at
the time alleged, regardless of whether the person had been offered
or had refused a chemical test. The medical facility or person
performing the chemical analysis shall disclose the results of the
analysis to a prosecuting attorney who requests the results for use
in a criminal prosecution as provided in this subdivision. A
medical facility or person disclosing information in compliance
with this subsection is not civilly or criminally liable for making
the disclosure.
(f) If, after an accident, the driver of a vehicle involved in
the accident is deceased, a sample of the decedent's blood shall be
withdrawn in a manner directed by the medical examiner to determine
the amount of alcohol or the presence of a controlled substance, or
both, in the decedent's blood. The medical examiner shall give the
results of the chemical analysis of the sample to the law
enforcement agency investigating the accident and that agency shall
forward the results to the department of state police.
(g) The department of state police shall promulgate uniform
rules in compliance with the administrative procedures act of 1969,
1969 PA 306, MCL 24.201 to 24.328, for the administration of
chemical tests for the purposes of this section. An instrument used
for a preliminary chemical breath analysis may be used for a
chemical test described in this subsection if approved under rules
promulgated by the department of state police.
(7) The provisions of subsection (6) relating to chemical
testing do not limit the introduction of any other admissible
evidence bearing upon any of the following questions:
(a) Whether the person was impaired by, or under the influence
of, alcoholic liquor, a controlled substance, or a combination of
alcoholic liquor and a controlled substance.
(b) Whether the person had an alcohol content of 0.08 grams or
more per 100 milliliters of blood, per 210 liters of breath, or per
67 milliliters of urine or, beginning October 1, 2013, the person
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.
(c) If the person is less than 21 years of age, whether the
person had any bodily alcohol content within his or her body. As
used in this subdivision, "any bodily alcohol content" means either
of the following:
(i) An alcohol content of 0.02 grams or more but less than 0.08
grams per 100 milliliters of blood, per 210 liters of breath, or
per 67 milliliters of urine or, beginning October 1, 2013, the
person had an alcohol content of 0.02 grams or more but less than
0.10 grams or more per 100 milliliters of blood, per 210 liters of
breath, or per 67 milliliters of urine.
(ii) Any presence of alcohol within a person's body resulting
from the consumption of alcoholic liquor, other than the
consumption of alcoholic liquor as a part of a generally recognized
religious service or ceremony.
(8) If a chemical test described in subsection (6) is
administered, the test results 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 prosecution shall offer the test results as
evidence in that trial. Failure to fully comply with the request
bars the admission of the results into evidence by the prosecution.
(9) A person's refusal to submit to a chemical test as
provided in subsection (6) is admissible in a criminal prosecution
for a crime described in section 625c(1) only to show that a test
was offered to the defendant, but not as evidence in determining
the defendant's innocence or guilt. The jury shall be instructed
accordingly.
Sec. 625c. (1) A person who operates a vehicle upon a public
highway or other place open to the general public or generally
accessible to motor vehicles, including an area designated for the
parking of vehicles, within 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 or urine or the
amount of alcohol in his or her breath in all of the following
circumstances:
(a) If the person is arrested for a violation of section
625(1), (3), (4), (5), (6), (7), or (8), section 625a(5), or
section 625m or a local ordinance substantially corresponding to
section 625(1), (3), (6), or (8), section 625a(5), or section 625m.
(b) If the person is arrested for felonious driving, negligent
homicide, manslaughter, or murder resulting from the operation of a
motor vehicle, and the peace officer had reasonable grounds to
believe the person was operating the vehicle in violation of
section 625.
(c) The peace officer has reasonable grounds to believe the
person was operating the vehicle at the time the vehicle was
involved in an accident resulting in serious impairment of a bodily
function or death.
(2) A person who is afflicted with hemophilia, diabetes, or a
condition requiring the use of an anticoagulant under the direction
of a physician is not considered to have given consent to the
withdrawal of blood.
(3) The tests shall be administered as provided in section
625a(6).
Sec. 625d. (1) If a person refuses the request of a peace
officer to submit to a chemical test offered pursuant to section
625a(6), a test shall not be given without a court order, but the
officer may seek to obtain the court order.
(2) A written report shall immediately be forwarded to the
secretary of state by the peace officer. The report shall state
that the officer had reasonable grounds to believe that the person
had committed a crime or was involved in an accident as described
in
section 625c(1) , and that the person had refused to submit to
the test upon the request of the peace officer and had been advised
of the consequences of the refusal. The form of the report shall be
prescribed and furnished by the secretary of state.
Sec. 625f. (1) If a person who refuses to submit to a chemical
test pursuant to section 625d does not request a hearing within 14
days after the date of notice pursuant to section 625e, the
secretary of state shall impose the following license sanctions:
(a) If the person was operating a vehicle other than a
commercial motor vehicle, suspend or deny the person's operator's
or chauffeur's license or permit to drive, or nonresident operating
privilege, for 1 year or, for a second or subsequent refusal within
7 years, for 2 years. If the person is a resident without a license
or permit to operate a vehicle in the state, the secretary of state
shall not issue the person a license or permit for 1 year or, for a
second or subsequent refusal within 7 years, for 2 years.
(b) If the person was operating a commercial motor vehicle,
for the first refusal, suspend all vehicle group designations on
the person's operator's or chauffeur's license or permit or
nonresident privilege to operate a commercial motor vehicle or, if
the person is a resident without a license or permit to operate a
commercial motor vehicle in the state, not issue the person an
operator's or chauffeur's license with vehicle group designations,
for 1 year.
(c) If the person was operating a commercial motor vehicle,
for a second or subsequent refusal that occurred in a separate
incident from and within 10 years of a prior refusal, revoke all
vehicle group designations on the person's operator's or
chauffeur's license or permit or nonresident privilege to operate a
commercial motor vehicle or, if the person is a resident without a
license or permit to operate a commercial motor vehicle in the
state, not issue the person an operator's or chauffeur's license
with vehicle group designations, for not less than 10 years and
until the person is approved for the issuance of a vehicle group
designation.
(d) If the person was operating a commercial motor vehicle and
was arrested for an offense enumerated in section 625c other than a
violation of section 625a(5) or 625m, impose the license sanction
described in subdivision (a) and the license sanction described in
subdivision (b) or (c), as applicable.
(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. 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 625d, 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 for the violation. The
hearing officer shall not impose any sanction for a failure to
comply with these time limits.
(3) Except for delay attributable to the unavailability of the
defendant, a witness, or material evidence, or due to an
interlocutory appeal or exceptional circumstances, but not a delay
caused by docket congestion, a hearing shall be finally adjudicated
within 77 days after the date of arrest. The hearing officer shall
not impose any sanction for a failure to comply with this time
limit.
(4) 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 or was involved in an
accident as described in section 625c(1).
(b) Whether the person was placed under arrest for a crime
described in section 625c(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 the rights under section
625a(6).
(5) A person shall not order a hearing officer to make a
particular finding on any issue enumerated in subsection (4)(a) to
(d).
(6) The hearing officer shall make a record of a hearing held
pursuant to this section. The record shall be prepared and
transcribed in accordance with section 86 of the administrative
procedures act of 1969, 1969 PA 306, MCL 24.286. Upon notification
of the filing of a petition for judicial review pursuant to section
323 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 was filed the original or a certified copy of the official
record of the proceedings. Proceedings at which evidence was
presented need not be transcribed and transmitted if the sole
reason for review is to determine whether the court will order the
issuance of a restricted license. 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.
(7) If the person who requested a hearing does not prevail,
the secretary of state shall impose the following license sanctions
after the hearing:
(a) If the person was operating a vehicle other than a
commercial motor vehicle, suspend or deny issuance of a license or
driving permit or a nonresident operating privilege of the person
for 1 year or, for a second or subsequent refusal within 7 years,
for 2 years. If the person is a resident without a license or
permit to operate a vehicle in the state, the secretary of state
shall not issue the person a license or permit for 1 year or, for a
second or subsequent refusal within 7 years, for 2 years. The
person may file a petition in the circuit court of the county in
which the arrest was made to review the suspension or denial as
provided in section 323.
(b) If the person was operating a commercial motor vehicle,
impose the sanction prescribed under subsection (1)(b) or (1)(c),
as applicable. The person may file a petition in the circuit court
of the county in which the arrest was made to review the suspension
or denial as provided in section 323.
(c) If the person was operating a commercial motor vehicle and
was arrested for an offense enumerated in section 625c other than a
violation of section 625a(5) or 625m, impose the license sanctions
described in subdivisions (a) and (b).
(8) If the person who requested the hearing prevails, the
peace officer who filed the report under section 625d 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 323.
(9) When it has been finally determined that a nonresident's
privilege to operate a vehicle in the state has been suspended or
denied, the department shall give notice in writing of the action
taken to the motor vehicle administrator of the state of the
person's residence and of each state in which he or she has a
license to operate a motor vehicle.