Bill Text: MI SB0865 | 2013-2014 | 97th Legislature | Introduced

---

Bill Title: Crimes; intoxication or impairment; preliminary chemical testing for certain controlled substances; authorize, and provide for procedures and penalties for refusal. Amends secs. 625a, 625c, 625d & 625g of 1949 PA 300 (MCL 257.625a et seq.) & adds secs. 20e & 43a.

Spectrum: Partisan Bill (Republican 7-0)

Status: (Introduced - Dead) 2014-03-11 - Referred To Committee On Judiciary [SB0865 Detail]

Download: Michigan-2013-SB0865-Introduced.html

---

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SENATE BILL No. 865

 

 

March 11, 2014, Introduced by Senators PAVLOV, JANSEN, ROBERTSON, BOOHER, PROOS, BRANDENBURG and CASPERSON 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 625g (MCL 257.625a,

 

257.625c, 257.625d, and 257.625g), sections 625a and 625g as

 

amended by 2013 PA 23, section 625c as amended by 2008 PA 463, and

 

section 625d as amended by 1994 PA 211, and by adding sections 20e

 

and 43a.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 20e. "Immunochemical assay" means a scientific technique

 

that uses specific binding between antigen and its homologous

 

antibody to identify and quantify a substance in a sample.

 

     Sec. 43a. "Preliminary chemical analysis" means the on-site

 

taking and analysis by immunochemical assay of the breath or saliva

 

of a person for the purpose of detecting the presence of any of the

 

following within the person's body:

 

     (a) Alcoholic liquor.

 

     (b) A controlled substance.

 

     (c) Any other intoxicating substance.

 

     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, saliva, or urine contained any measurable amount of alcohol

 

or a controlled substance or while the person had any detectable

 

presence of alcoholic liquor or a controlled substance, 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 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 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, saliva, 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, saliva, 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, saliva, 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, saliva, 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, 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.

 

     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, saliva, or

 

urine for the purpose of determining the amount of alcohol or

 

presence of a controlled substance or both in his or her blood,

 

saliva, 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 a violation of section 601d,

 

section 626(3) or (4), or 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.

 

     (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 under

 

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 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. 625g. (1) If a person refuses a chemical test offered

 

under section 625a(6), or submits to the chemical test or a

 

preliminary chemical test under section 625a(2), a chemical test is

 

performed under a court order and the test reveals an unlawful

 

alcohol content or the presence of a controlled substance, the

 

peace officer who requested the person to submit to the test shall

 

do all of the following:

 

     (a) On behalf of the secretary of state, immediately

 

confiscate the person's license or permit to operate a motor

 

vehicle and, if the person is otherwise eligible for a license or

 

permit, issue a temporary license or permit to the person. The

 

temporary license or permit shall be on a form provided by the

 

secretary of state.

 

     (b) Except as provided in subsection (2), immediately do all

 

of the following:

 

     (i) Forward a copy of the written report of the person's

 

refusal to submit to a chemical test required under section 625d to

 

the secretary of state.

 

     (ii) Notify the secretary of state by means of the law

 

enforcement information network that a temporary license or permit

 

was issued to the person.

 

     (iii) Destroy the person's driver's license or permit.

 

     (2) If a person submits to a preliminary chemical test or

 

chemical test offered under section 625a(6) 625a(2) or (6) that

 

requires an analysis of blood or urine and a report of the results

 

of that chemical test is not immediately available, the peace

 

officer who requested the person to submit to the test shall comply

 

with subsection (1)(a) pending receipt of the test report. If the

 

report reveals an unlawful alcohol content or the preliminary

 

chemical test reveals the presence of a controlled substance, the

 

peace officer who requested the person to submit to the test shall

 

immediately comply with subsection (1)(b). If the report does not

 

reveal an unlawful alcohol content or the presence of a controlled

 

substance, the peace officer who requested the person to submit to

 

the test shall immediately notify the person of the test results

 

and immediately return the person's license or permit by first-

 

class mail to the address given at the time of arrest.

 

     (3) A temporary license or permit issued under this section is

 

valid for 1 of the following time periods:

 

     (a) If the case is not prosecuted, for 90 days after issuance

 

or until the person's license or permit is suspended under section

 

625f, whichever occurs earlier. The prosecuting attorney shall

 

notify the secretary of state if a case referred to the prosecuting

 

attorney is not prosecuted. The arresting law enforcement agency

 

shall notify the secretary of state if a case is not referred to

 

the prosecuting attorney for prosecution.

 

     (b) If the case is prosecuted, until the criminal charges

 

against the person are dismissed, the person is acquitted of those

 

charges, or the person's license or permit is suspended,

 

restricted, or revoked.

 

     (4) As used in this section: , "unlawful

 

     (a) "Presence of a controlled substance" means the presence of

 

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.

 

     (b) "Unlawful alcohol content" means any of the following, as

 

applicable:

 

     (i) (a) If the person tested is less than 21 years of age, 0.02

 

grams or more of alcohol per 100 milliliters of blood, per 210

 

liters of breath, or per 67 milliliters of urine.

 

     (ii) (b) If the person tested was operating a commercial motor

 

vehicle within this state, 0.04 grams or more of alcohol per 100

 

milliliters of blood, per 210 liters of breath, or per 67

 

milliliters of urine.

 

     (iii) (c) If the person tested is not a person described in

 

subdivision (a) or (b), subparagraph (i) or (ii), 0.08 grams or more

 

of alcohol per 100 milliliters of blood, per 210 liters of breath,

 

or per 67 milliliters of urine, or, beginning October 1, 2018, 0.10

 

grams or more of alcohol per 100 milliliters of blood, per 210

 

liters of breath, or per 67 milliliters of urine.