SB-0892, As Passed Senate, April 17, 2018

SUBSTITUTE FOR

SENATE BILL NO. 892

A bill to amend 1949 PA 300, entitled

"Michigan vehicle code,"

by amending section 625k (MCL 257.625k), as amended by 2016 PA 32,

and by adding section 62b.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 62b. "Startup operated breath engine restrictor" or

"SOBER" means an alcohol concentration measuring device that

prevents a motor vehicle from being started at any time without

first determining through a deep lung sample the operator's alcohol

level, calibrated so that the motor vehicle cannot be started if

the breath alcohol level of the operator, as measured by the test,

reaches a level of 0.025 grams per 210 liters of breath, and to

which all of the following apply:

(a) The device is voluntarily installed in the motor vehicle

by the vehicle owner.

(b) The device utilizes alcohol-specific electrochemical fuel

sensor technology.

uses a positive-negative-positive air pressure test requirement, a

midtest hum tone requirement, or any other anticircumvention method

or technology that first becomes commercially available after July

31, 2007.

(d) The device is distinguished so as not to be visually

confused with a breath alcohol ignition interlock device.

(e) The device is not a breath alcohol ignition interlock

device.

Sec. 625k. (1) An ignition interlock device (BAIID)

manufacturer seeking certification of a device in this state shall

do all of the following:

(a) Complete an application to the department for

certification of the BAIID.

(b) Submit a report from a department-approved or National

Highway Traffic Safety Administration-approved laboratory

certifying that the BAIID meets or exceeds the model specifications

for BAIIDs, 78 FR 26849 – 26867 (May 8, 2013), or any subsequent

version. Subject to subsection (5), the department shall provide a

list of all manufacturers of approved certified devices to each

person who is approved to be issued a restricted license that

permits the person to drive a vehicle only if equipped with a

BAIID. The department shall rotate the order of the providers with

each list provided under this subsection. Any model of an ignition

interlock device certified by a department-approved laboratory as

complying with the model specifications for breath alcohol ignition

interlock devices (BAIIDs), 57 FR 11772-11787 (April 7, 1992), that

was installed in a vehicle before ~~the effective date of the~~

~~amendatory act that added this subdivision~~ June 6, 2016 may be used

in this state ~~for the 24 months after the effective date of the~~

~~amendatory act that added this subdivision.~~through June 6, 2018.

image of the individual providing the sample, and record the time

and date the sample was provided on or logically associated with

the digital image. A BAIID presented to the department for

certification may include additional technological features,

including, but not limited to, the ability to remotely report

information collected by the device.

(d) Agree to ensure proper record keeping in a format approved

by the department and provide testimony relating to any aspect of

the installation, service, repair, use, removal, or interpretation

of any report or information recorded in the data storage system of

a device or performance of any other duties required by this act at

no cost on behalf of ~~the~~ this state or any political subdivision of

~~the~~ this state.

(2) The secretary of state shall promulgate rules to implement

this section in compliance with the administrative procedures act

of 1969, 1969 PA 306, MCL 24.201 to 24.328.

(3) The manufacturer of an ignition interlock device shall

bear the cost of that device's certification.

(4) A laboratory that certifies an ignition interlock device

as provided in this section shall immediately notify the department

of that certification.

(5) The department shall not include the manufacturer of a

certified ignition interlock device on the list of manufacturers

published under subsection (1) unless the manufacturer complies

with all of the following:

(a) The manufacturer has filed copies of all of the following

with the department:

(i) A bond executed as provided in section 625o or a letter of

credit.

(ii) Proof of liability insurance issued by an insurance

company authorized to do business in this state specifying all of

the following:

(A) That the policy is current and shall remain valid during

the duration of device approval.

(B) The name and model number of the device model covered by

the policy.

per occurrence and $3,000,000.00 in the aggregate.

(D) That the policy will indemnify the department and any

other person injured as a result of any defects in manufacture,

materials, design, calibration, installation, or operation of the

device.

(iii) An affidavit that the ignition interlock device meets or

exceeds all of the following conditions:

(A) Meets the definition in section 20d.

(B) Is set to periodically take samples while the vehicle is

in operation. After the vehicle is in operation, the device

requires a first retest sample within 5 to 15 minutes of the

operator starting the vehicle. The device prompts second and

subsequent retests within 15 to 45 minutes of the first retest. The

operator of the vehicle is afforded not more than 5 minutes to

provide a passing retest sample for each retest prompted by the

device. The device accepts multiple attempts to provide a retest

sample without initiating a lockout. If the device detects an

alcohol content of 0.025 grams or more per 210 liters of breath in

the person who offers a breath sample or if a breath sample is not

given within the allotted time the device does all of the

following:

(I) Emits a visible or audible warning signal.

(II) Renders the vehicle inoperable as soon as the vehicle is

no longer being operated, requiring the operator to provide a

breath sample containing a breath alcohol level of less than 0.025

grams per 210 liters of breath before the vehicle may be restarted.

(III) Disables the free restart as defined by the National

Highway Traffic Safety Administration standards.

(IV) Activates a violation reset. The device initiates an

audible or visual cue that warns the driver that the device will

enter a permanent lockout in 5 days.

(b) Agrees to have service locations within 50 miles of any

location within this state. A manufacturer may request a waiver of

this requirement from the secretary of state if the manufacturer is

unable to secure an installation facility within 50 miles of any

location in this state. Subject to review, the secretary of state

may determine whether the manufacturer's waiver request shall be

approved. The secretary of state shall only approve a waiver of the

50-mile requirement and designate a location not meeting the 50-

mile requirement as a service center if the service center employs

a BAIID certified installer who shall perform any installation or

service to a BAIID at that location. If the secretary of state

approves a waiver of the 50-mile requirement, that waiver applies

only to the approved location. A manufacturer shall make a separate

request for a waiver of the 50-mile requirement for any additional

installation facility not meeting the 50-mile requirement.

cost to a person whose gross income for the immediately preceding

tax year based on his or her state income tax return was less than

150% of the official poverty line for that same tax year

established in the poverty guidelines issued by the ~~secretary~~

United States Secretary of ~~health~~ Health and ~~human services~~ Human

Services under 42 USC 9902. A person in whose vehicle an ignition

interlock device is installed without cost under this subdivision

shall pay a maintenance fee to the installer of not more than $2.00

per day.

(d) Agrees to comply with the reporting requirements of the

secretary of state.

(e) Agrees to periodically monitor installed ignition

interlock devices and if monitoring indicates that the device has

been circumvented, tampered with, or that a person with a breath

alcohol level of 0.025 or more grams per 210 liters of breath has

attempted to operate the motor vehicle, or both, to communicate all

of the relevant information concerning these facts to the secretary

of state, and to the court if appropriate.

(6) A manufacturer that has made a filing under subsection (5)

shall immediately notify the department if the device no longer

meets the requirements of subsection (5).

(7) Upon the request of the department, the BAIID manufacturer

shall, at no cost to this state, provide the department with not

less than 2 BAIIDs for each model that is certified under this

section for demonstration and training purposes by the department.

(8) Upon the request of the department, the BAIID manufacturer

shall, at no cost to this state, install 1 of each device that is

certified under this section in a vehicle provided by the

department. Any service performed under this subsection, including,

but not limited to, installation, maintenance, calibration, or

removal, shall be completed at no cost to this state.

(9) Upon the request of the department, for each BAIID model

approved by the department, the BAIID manufacturer shall provide a

total of not less than 10 hours of training to department employees

at no cost to this state. This training shall be held at the times

and locations within the state designated by the department. The

training shall be designed to familiarize department employees with

the installation, operation, service, repair, and removal of the

BAIIDs and include the training and instructions that a BAIID

installer will give to customers. The BAIID manufacturer shall also

provide the department, upon request, with the following

information:

(a) A detailed description of the device, including complete

instructions for installation, operation, service, repair, and

removal of the BAIID.

(b) Complete technical specifications, including detailed

explanations and definitions of all data log entries.

(10) A BAIID manufacturer shall notify the department not less

than 15 days before implementation of any modification, upgrade, or

alteration to any hardware, software, or firmware of a device

certified for use in this state. The notification shall include

both of the following:

(a) A description and explanation of the modification,

upgrade, or alteration and proof satisfactory to the department

that these modifications, upgrades, or alterations do not adversely

affect the ability of the device to satisfy the requirements of

this section and section 625l.

(b) A comprehensive plan of action for the phasing out of the

use of the current device. This plan of action must be approved by

the department prior to the implementation of the plan of action.

(11) Any equipment in the possession of the department that

was retained for certification of the device shall be modified,

upgraded, or altered simultaneously with the implementation of a

plan of action under subsection (10). The department, in its

discretion, may retain a BAIID device regardless of whether the

device is no longer the current version or model of that device.

(12) Material modifications to a certified BAIID device may

require recertification under this section as determined by the

department.

(13) A BAIID manufacturer shall apply to the department

annually for recertification of BAIID devices it manufactures.

(14) The department is responsible for approving BAIID service

centers for operation in this state. The department shall not

approve a BAIID service center unless all of the following

conditions are satisfied:

(a) Only service centers that are BAIID manufacturer and

vendor approved shall install, service, or remove BAIIDs approved

for use in this state.

(b) Except as provided in subdivision (d), beginning July 1,

2016, a BAIID shall only be installed, serviced, or removed in a

motor vehicle repair facility. As used in this subdivision, "motor

vehicle repair facility" means that term as defined in section 2 of

the motor vehicle service and repair act, 1974 PA 300, MCL

257.1302.

within this state.

(d) A business that installs, services, or removes a BAIID,

including a BAIID manufacturer's corporate office located in this

state, that is installing, repairing, or removing BAIID devices on

~~the effective date of the amendatory act that amended this section~~

June 6, 2016 may install, service, and remove BAIIDs in this state

without being certified as a motor vehicle repair facility under

the motor vehicle service and repair act, 1974 PA 300, MCL 257.1302

to 257.1340, if the business employs a certified BAIID installer to

perform any installation, service, or removal of a BAIID.

(e) Each service center shall have not less than 1 individual

who is a mechanic and who possesses a specialty certification in

BAIID service under section 10(1)(j) of the motor vehicle service

and repair act, 1974 PA 300, MCL 257.1310, and holds a BAIID

certification under this section to work as a BAIID installer.

(f) Each service center shall maintain and make available for

inspection records that prove that each certified BAIID installer

working at the service center has been properly trained by the

BAIID manufacturer to service the BAIID for which the center is a

vendor.

(g) Each service center shall provide a designated waiting

area for customers that is separate from the area in which BAIIDs

are installed or serviced.

(h) Only certified BAIID installers and representatives of the

BAIID manufacturer or the department shall be allowed to observe

the installation or removal of a BAIID.

(i) Adequate security measures shall be taken to ensure that

unauthorized personnel are not allowed access to proprietary

materials of BAIID manufacturers or files of customers.

(j) BAIID manufacturer service centers shall install,

maintain, service, and remove all BAIIDs handled by that service

center and perform any other services determined necessary by the

department for using those BAIIDs in this state.

(k) The BAIID manufacturer shall inform the department of a

change in its service center's business address 15 days prior to

the date of any relocation.

(l) BAIIDs approved for use in this state shall only be

serviced by service centers located within this state, unless the

customer is unable to return to this state for service because of a

significant personal hardship.

(m) If a BAIID is serviced by a service center outside of this

state, the BAIID service provider shall ensure that all of the

following requirements are met:

(i) The BAIID operates using the same firmware that is used

for devices in this state.

(ii) The data recorded by the BAIID remain intact on the

device for later retrieval by a service center in this state or the

data are transferred to a BAIID manufacturer database for review.

(n) Service centers shall make the addresses of their

locations available to the department.

(o) BAIIDs for use in this state shall be installed and shall

be removed only in a service center approved by the department for

installing that device under this subsection.

(p) Each application for approval shall be for a single

service center. A separate service center application is required

for each additional service center.

(q) Before issuance of approval, the department may require an

on-site evaluation to ensure compliance with the requirements of

this section and section 625l.

(r) The department's approval of a service center shall be for

a period of 1 year. The renewal process shall be the same as the

initial service center approval process under this section.

(15) The department may conduct inspections of a manufacturer

or a BAIID service center to ensure compliance with this act and

rules promulgated to implement this act. The manufacturer shall pay

for the actual costs to the department in conducting an inspection

under this subsection. Money collected by the department under this

subsection shall be credited to the transportation administration

collection fund created in section 810b.

(16) An individual shall not install, service, or remove a

BAIID in this state without being certified by the department under

this section.

(17) All BAIID installations shall be done in a workmanlike

manner by a BAIID certified installer at an approved service center

and shall be in accordance with the standards set forth in this

section and with the requirements of the manufacturer. All BAIIDs

installed shall be in working order and shall perform in accordance

with the standards set forth in this act. All connections shall be

covered with a tamper seal.

(18) Upon completion of the installation of a BAIID required

under this act, the approved BAIID certified installer shall

provide the customer with installation verification in the form and

format designated by the department.

(19) A manufacturer shall ensure that BAIID certified

installers meet the following requirements:

(a) Possess the appropriate certification from the department

under this section.

(b) Possess and maintain all necessary training and skills

required to install, examine, troubleshoot, and verify the proper

operation of BAIIDs.

install, inspect, download, calibrate, repair, maintain, service,

and remove BAIID devices.

(d) Provide all persons who will use the vehicle with written

and hands-on training regarding the operation of a vehicle equipped

with the BAIID and ensure that each of those persons demonstrates a

properly delivered alveolar breath sample and an understanding of

how the abort test feature works.

(20) An individual who has been convicted of an alcohol-

related driving offense or any offense classified as a felony in

this state or elsewhere within 5 years before the date of filing an

application for approval as a BAIID certified installer is not

eligible for approval as a BAIID certified installer under this

act.

(21) The following requirements apply to a BAIID certified

installer under this act:

(a) Be not less than 18 years of age.

(b) Possess a valid driver license.

motor vehicle service and repair act, 1974 PA 300, MCL 257.1302,

and possess a specialty certification in BAIID service under

section 10(1)(j) of the motor vehicle service and repair act, 1974

PA 300, 257.1310.

(d) Be certified as a BAIID installer under this section.

(22) To be certified as a BAIID installer under this section,

the individual shall meet all of the following requirements:

(a) Possess a specialty certification in BAIID installation

under section 10(1)(j) of the motor vehicle service and repair act,

1974 PA 300, MCL 257.1310.

(b) Properly complete and file a BAIID installer application

form with the department.

~~amendatory act that added this subdivision,~~ December 3, 2016, be a

mechanic who is certified as a mechanic with a specialty

certification in BAIID service under section (10)(1)(j) of the

motor vehicle service and repair act, 1974 PA 300, MCL 257.1310,

and hold a BAIID certification under this section.

(d) Submit a criminal history report certified by the

department of state police within the immediately preceding 30

days.

(e) Meet the requirements of the department for certification

under this act.

(23) Each application for approval shall be for a single BAIID

installer. A separate BAIID installer application is required for

each additional BAIID installer.

(24) The department's approval of a BAIID installer is for 1

year. The renewal process shall be the same as the initial BAIID

installer approval process under this section.

(25) This act does not prohibit a BAIID manufacturer from

developing, manufacturing, or selling a startup operated breath

engine restrictor (SOBER) in this state. A SOBER may be installed

on any motor vehicle properly titled in this state by that motor

vehicle's owner, if the motor vehicle is not owned or operated by

an individual who is required by the department or a court order to

install a BAIID as a condition of operating a motor vehicle. An

install certificate, report, or any other document bearing a raised

seal shall not be issued upon installation of a SOBER device.