March 12, 2015, Introduced by Senators JONES and SCHUITMAKER and referred to the Committee on Judiciary.
A bill to amend 1949 PA 300, entitled
"Michigan vehicle code,"
by amending sections 43a and 625a (MCL 257.43a and 257.625a),
section 43a as added and 625a as amended by 2014 PA 315.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
43a. "Preliminary roadside chemical
breath analysis"
means the on-site taking of a preliminary breath test from the
breath
of a person or the performance and observation of a field
sobriety
test for the purpose of detecting
the presence of any of
the following within the person's body:
(a) Alcoholic liquor.
(b) A controlled substance, as that term is defined in section
7104 of the public health code, 1978 PA 368, MCL 333.7104.
(c) Any other intoxicating substance, as that term is defined
in section 625.
(d) Any combination of the substances listed in subdivisions
(a) to (c).
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, a controlled substance, or other intoxicating substance or
a combination of them 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, a controlled substance, or any other intoxicating
substance or while the person had any detectable presence of
alcoholic liquor, a controlled substance or any other intoxicating
substance, or any combination of them, 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
roadside chemical breath analysis. The following
provisions
apply with respect to a preliminary roadside 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 roadside chemical breath
analysis.
(b)
The results of a preliminary roadside 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 roadside 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 roadside 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
roadside
chemical breath analysis conducted under 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 roadside 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 roadside 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 roadside 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
a preliminary roadside chemical
breath analysis:
(a) The amount of alcohol or presence of a controlled
substance or other intoxicating substance 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 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 other intoxicating substance 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 other intoxicating substance
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
other intoxicating substance, or any combination of them, 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 roadside 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 other intoxicating
substance, or a combination of alcoholic liquor, a controlled
substance, or other intoxicating 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, 2018, 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, 2018, 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.
(10) As used in this section:
(a) "Controlled substance" means that term as defined in
section 7104 of the public health code, 1978 PA 368, MCL 333.7104.
(b) "Intoxicating substance" means that term as defined in
section 625.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.