SB-0207, As Passed Senate, January 20, 2016

SUBSTITUTE FOR

SENATE BILL NO. 207

     A bill to amend 1949 PA 300, entitled

"Michigan vehicle code,"

(MCL 257.1 to 257.923) by adding sections 62a, 625r, and 625s.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 62a. "Standardized field sobriety test" means 1 of the

standardized tests validated by the National Highway Traffic Safety

Administration. A field sobriety test is considered a standardized

field sobriety test under this section if it is administered in

substantial compliance with the standards prescribed by the

National Highway Traffic Safety Administration.

     Sec. 625r. (1) A peace officer who is certified as a drug

recognition expert as that term is defined in section 625q in a

county participating in the roadside drug testing pilot program

under section 625q who has reasonable cause to believe that a

person was operating a vehicle upon a 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 a controlled substance,

may have affected his or her ability to operate a vehicle, or

reasonable cause to believe that a person had 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, may require the person to submit

to a preliminary oral fluid analysis administered under this

subsection.

     (2) A peace officer who is certified as a drug recognition

expert as that term is defined in section 625q in a county

participating in the roadside drug testing pilot program under

section 625q may arrest a person in whole or in part upon the

results of a preliminary oral fluid analysis.

     (3) The results of a preliminary oral fluid 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:

     (a) 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.

     (b) As evidence of the presence or nonpresence of a controlled

substance in the defendant's oral fluid if offered by the defendant

to rebut testimony elicited on cross-examination of a defense

witness that a preliminary oral fluid analysis of the defendant's

oral fluid showed the presence of a controlled substance that was

not found to be present when a chemical test of the defendant's

blood or urine was administered under section 625a.

     (c) As evidence of the presence or nonpresence of a controlled

substance in the defendant's oral fluid if offered by the

prosecution to rebut testimony elicited on cross-examination of a

prosecution witness that a preliminary oral fluid analysis of the

defendant's oral fluid showed no presence of a controlled substance

that was found to be present when a chemical test of the

defendant's blood or urine was administered under section 625a.

     (4) A person who submits to a preliminary oral fluid analysis

remains subject to the requirements of sections 625a, 625c, 625d,

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

sections.

     (5) Except as provided in subsection (9), a person who refuses

to submit to a preliminary oral fluid analysis upon a lawful

request by a peace officer is responsible for a civil infraction.

     (6) A peace officer who is certified as a drug recognition

expert as that term is defined in section 625q in a county

participating in the roadside drug testing pilot program under

section 625q shall use the results of a preliminary oral fluid

analysis conducted under this section to determine whether to order

a person out of service under section 319d.

     (7) A peace officer who is certified as a drug recognition

expert as that term is defined in section 625q in a county

participating in the roadside drug testing pilot program under

section 625q 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 oral fluid analysis as provided

in this section. This subsection 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.

     (8) A person who operates a commercial motor vehicle and who

is requested to submit to a preliminary oral fluid analysis under

this section by a peace officer who is certified as a drug

recognition expert as that term is defined in section 625q in a

county participating in the pilot program under section 625q shall

be advised that refusing the request 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.

     (9) A person who operates a commercial motor vehicle and who

refuses to submit to a preliminary oral fluid analysis upon the

request of a peace officer who is certified as a drug recognition

expert as that term is defined in section 625q in a county

participating in the pilot program under section 625q 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.

     Sec. 625s. A person who is qualified by knowledge, skill,

experience, training, or education, in the administration of

standardized field sobriety tests, including the horizontal gaze

nystagmus (HGN) test, shall be allowed to testify subject to

showing of a proper foundation of qualifications. This section does

not preclude the admissibility of a nonstandardized field sobriety

test if it complies with the Michigan rules of evidence.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.

     Enacting section 2. This amendatory act does not take effect

unless Senate Bill No. 434 of the 98th Legislature is enacted into

law.