Bill Text: MI HB5028 | 2011-2012 | 96th Legislature | Introduced
Bill Title: Vehicles; off-road; operation of an off-road vehicle by certain individuals under the influence of or visibly impaired by alcohol or a controlled substance; prohibit. Amends secs. 81101, 81134, 81136, 81137, 81140, 81141 & 81144 of 1994 PA 451 (MCL 324.81101 et seq.); adds sec. 81140b & repeals sec. 81135 of 1994 PA 451 (MCL 324.81135).
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-19 - Referred To Second Reading [HB5028 Detail]
Download: Michigan-2011-HB5028-Introduced.html
HOUSE BILL No. 5028
September 28, 2011, Introduced by Rep. Kandrevas and referred to the Committee on Judiciary.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 81101, 81134, 81136, 81137, 81140, 81141, and
81144 (MCL 324.81101, 324.81134, 324.81136, 324.81137, 324.81140,
324.81141, and 324.81144), section 81101 as amended by 2009 PA 200,
section 81134 as amended by 2001 PA 12, sections 81136 and 81141 as
amended by 1996 PA 175, and sections 81137, 81140, and 81144 as
added by 1995 PA 58, and by adding section 81140b; and to repeal
acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 81101. As used in this part:
(a) "Alcoholic liquor" means that term as defined in section
1d of the Michigan vehicle code, 1949 PA 300, MCL 257.1d.
(b) (a)
"ATV" means a 3-, 4-, or
6-wheeled vehicle designed
for off-road use that has low-pressure tires, has a seat designed
to be straddled by the rider, and is powered by a 50cc to 1,000cc
gasoline engine or an engine of comparable size using other fuels.
(c) (b)
"Code" means the Michigan
vehicle code, 1949 PA 300,
MCL 257.1 to 257.923.
(d) (c)
"Dealer" means a person
engaged in the sale, lease, or
rental of an ORV as a regular business or, for purposes of selling
licenses under section 81116, any other person authorized by the
department to sell licenses or permits, or both, under this act.
(e) (d)
"Designated", unless the
context implies otherwise,
means posted open for ORV use with appropriate signs by the
department.
(f) (e)
"Farm vehicle" means
either of the following:
(i) An implement of husbandry as that term is defined in
section 21 of the Michigan vehicle code, 1949 PA 300, MCL 257.21.
(ii) A vehicle used in connection with a farm operation as that
term is defined in section 2 of the Michigan right to farm act,
1981 PA 93, MCL 286.472.
(g) (f)
"Forest road" means a
hard surfaced road, gravel or
dirt road, or other route capable of travel by a 2-wheel drive, 4-
wheel conventional vehicle designed for highway use, except an
interstate, state, or county highway.
(h) (g)
"Forest
trail" means a designated path or way capable
of travel only by a vehicle less than 50 inches in width.
(i) (h)
"Highway" means the
entire width between the boundary
lines of a way publicly maintained when any part of the way is open
to the use of the public for purposes of vehicular travel.
(j) (i)
"Highly restricted personal
information" means an
individual's photograph or image, social security number, digitized
signature, and medical and disability information.
(k) (j)
"Late model ORV" means an
ORV manufactured in the
current model year or the 5 model years immediately preceding the
current model year.
(l) (k)
"Manufacturer" means a
person, partnership,
corporation, or association engaged in the production and
manufacture of ORVs as a regular business.
(m) (l) "Off-road
vehicle account" means the off-road vehicle
account of the Michigan conservation and recreation legacy fund
established in section 2015.
(n) (m)
"Operate" means to ride
in or on, and be in actual
physical control of, the operation of an ORV.
(o) (n)
"Operator" means a person
who operates or is in actual
physical control of the operation of an ORV.
(p) (o)
"ORV" or
"vehicle" means a motor-driven off-road
recreation vehicle capable of cross-country travel without benefit
of a road or trail, on or immediately over land, snow, ice, marsh,
swampland, or other natural terrain. ORV or vehicle includes, but
is not limited to, a multitrack or multiwheel drive vehicle, an
ATV, a motorcycle or related 2-wheel, 3-wheel, 4-wheel, or 6-wheel
vehicle, an amphibious machine, a ground effect air cushion
vehicle, or other means of transportation deriving motive power
from a source other than muscle or wind. ORV or vehicle does not
include a registered snowmobile, a farm vehicle being used for
farming, a vehicle used for military, fire, emergency, or law
enforcement purposes, a vehicle owned and operated by a utility
company or an oil or gas company when performing maintenance on its
facilities or on property over which it has an easement, a
construction or logging vehicle used in performance of its common
function, or a registered aircraft.
(q) (p)
"Owner" means any of the
following:
(i) A vendee or lessee of an ORV that is the subject of an
agreement for the conditional sale or lease of the ORV, with the
right of purchase upon performance of the conditions stated in the
agreement, and with an immediate right of possession vested in the
conditional vendee or lessee.
(ii) A person renting an ORV, or having the exclusive use of an
ORV, for more than 30 days.
(iii) A person who holds legal ownership of an ORV.
(r) (q)
"Person with
disabilities" means a person who has 1 or
more of the following physical characteristics:
(i) Blindness.
(ii) Inability to ambulate more than 200 feet without having to
stop and rest during any time of the year.
(iii) Loss of use of 1 or both legs or feet.
(iv) Inability to ambulate without the prolonged use of a
wheelchair, walker, crutches, braces, or other device required to
aid mobility.
(v) A lung disease from which the person's expiratory volume
for 1 second, when measured by spirometry, is less than 1 liter, or
from which the person's arterial oxygen tension is less than 60
mm/hg of room air at rest.
(vi) A cardiovascular disease from which the person measures
between 3 and 4 on the New York heart classification scale, or from
which a marked limitation of physical activity causes fatigue,
palpitation, dyspnea, or anginal pain.
(vii) Other diagnosed disease or disorder including, but not
limited to, severe arthritis or a neurological or orthopedic
impairment that creates a severe mobility limitation.
(s) (r)
"Personal information"
means information that
identifies an individual, including an individual's driver
identification number, name, address not including zip code, and
telephone number, but does not include information on ORV operation
or equipment-related violations or civil infractions, operator or
vehicle registration status, accidents, or other behaviorally-
related information.
(t) (s)
"Public agency" means the
department or a local or
federal unit of government.
(u) (t)
"Roadway" means that
portion of a highway improved,
designated, or ordinarily used for vehicular travel. If a highway
includes 2 or more separate roadways, the term roadway refers to a
roadway separately, but not to all roadways collectively.
(v) (u)
"Route" means a forest
road or other road that is
designated for purposes of this part by the department.
(w) (v)
"Safety chief instructor"
means a person who has been
certified by a nationally recognized ATV and ORV organization to
certify instructors and to do on-sight evaluations of instructors.
(x) (w)
"Visual supervision"
means the direct observation of
the operator with the unaided or normally corrected eye, where the
observer is able to come to the immediate aid of the operator.
Sec.
81134. (1) A person who shall
not operate an ORV if any
of the following apply:
(a)
The person is under the influence of intoxicating
alcoholic liquor or a controlled substance, as defined by section
7104 of the public health code, 1978 PA 368, MCL 333.7104, or a
combination of intoxicating liquor and a controlled substance.
shall
not operate an ORV.
(b) (2)
A The person who has an alcohol content of 0.10 0.08
grams or more per 100 milliliters of blood, per 210 liters of
breath,
or per 67 milliliters of urine. shall not operate an ORV.
(c) The person has 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.
(2) (3)
The owner or person in charge or in
control of an ORV
shall not authorize or knowingly permit the ORV to be operated by a
person
who if any of the
following apply:
(a)
The person is under the influence of intoxicating
alcoholic liquor or a controlled substance or a combination of
intoxicating
alcoholic liquor and a controlled substance.
(b) The person has a blood alcohol content of 0.08 grams or
more per 100 milliliters of blood, per 210 liters of breath, or per
67 milliliters of urine.
(c) The person's ability to operate an ORV is visibly impaired
due to the consumption of an alcoholic liquor, a controlled
substance, or a combination of an alcoholic liquor and a controlled
substance.
(3) A person shall not operate an ORV if, due to the
consumption of alcoholic liquor, a controlled substance, as defined
by section 7104 of the public health code, 1978 PA 368, MCL
333.7104, or a combination of alcoholic liquor and a controlled
substance, the person's ability to operate an ORV is visibly
impaired. If a person is charged with violating subsection (1), a
finding of guilty is permissible under this subsection.
(4) Except as otherwise provided in this section, a person who
is
convicted of a violation of subsection (1) , (2), or (3) is
guilty
of a misdemeanor , punishable
by imprisonment for not more
than
93 days , or a
fine of not less than $100.00 or more than
$500.00, or both, together with costs of the prosecution. As part
of
the sentence for a violation of subsection (1), or (2), the
court shall order the person convicted not to operate an ORV for a
period of not less than 6 months or more than 2 years. A person who
is convicted of violating subsection (3) is guilty of a misdemeanor
punishable by imprisonment for not more than 93 days or a fine of
not more than $300.00, or both, together with the costs of
prosecution. As part of the sentence for a violation of subsection
(3), the court shall order the person convicted not to operate an
ORV for a period of not less than 93 days or more than 1 year.
(5)
On a second conviction under subsection (1) or (2) (3) or
a local ordinance substantially corresponding to subsection (1) or
(2)
(3) within a period of 7 years, a person is guilty of a
misdemeanor , punishable by imprisonment for not more than 1 year ,
or a fine of not more than $1,000.00, or both. As part of the
sentence for a violation of subsection (1), the court shall order
the person convicted not to operate an ORV for a period of not less
than 1 year or more than 2 years. As part of the sentence for a
violation of subsection (3), the court shall order the person
convicted not to operate an ORV for a period of not less than 6
months or more than 18 months.
(6)
On a third or subsequent conviction within a any period
of
10
years under subsection (1) or (2)
(3) or a local ordinance
substantially
corresponding to subsection (1) or (2) (3), a person
is guilty of a felony and shall be sentenced to imprisonment for
not
less than 1 year or more than 5 years
, or a fine of not less
than
$500.00 or more than $5,000 $5,000.00, or both. As part of the
sentence for a violation of subsection (1), the court shall order
the person convicted not to operate an ORV for a period of not less
than 1 year or more than 2 years. As part of the sentence for a
violation of subsection (3), the court shall order the person
convicted not to operate an ORV for a period of not less than 1
year or more than 2 years.
(7) A person who operates an ORV in violation of subsection
(1)
or (2) or section 81135 (3)
and by the operation of that ORV
causes the death of another person is guilty of a felony punishable
by imprisonment for not more than 15 years or a fine of not less
than $2,500.00 or more than $10,000.00, or both.
(8) A person who operates an ORV within this state in
violation
of subsection (1) or (2) or section 81135 (3) and by the
operation of that ORV causes a serious impairment of a body
function of another person is guilty of a felony punishable by
imprisonment for not more than 5 years or a fine of not less than
$1,000.00 or more than $5,000.00, or both. As used in this
subsection,
"serious impairment of a body function" includes, but
is
not limited to, 1 or more of the following: means that term as
defined in section 58c of the Michigan vehicle code, 1949 PA 300,
MCL 257.58c.
(a)
Loss of a limb or use of a limb.
(b)
Loss of a hand, foot, finger, or thumb or use of a hand,
foot,
finger, or thumb.
(c)
Loss of an eye or ear or use of an eye or ear.
(d)
Loss or substantial impairment of a bodily function.
(e)
Serious visible disfigurement.
(f)
A comatose state that lasts for more than 3 days.
(g)
Measurable brain damage or mental impairment.
(h)
A skull fracture or other serious bone fracture.
(i)
Subdural hemorrhage or subdural hematoma.
(9) A person who is convicted of violating subsection (2) is
guilty of a misdemeanor punishable by imprisonment for not more
than 93 days or a fine of not less than $100.00 or more than
$500.00, or both.
(10) (9)
As part of the sentence for a
violation of subsection
(1), or
(2), or (3) or a local ordinance substantially
corresponding
to subsection (1), or (2), or (3), the court may
order the person to perform service to the community, as designated
by the court, without compensation, for a period not to exceed 12
days. The person shall reimburse the state or appropriate local
unit of government for the cost of insurance incurred by the state
or local unit of government as a result of the person's activities
under this subsection.
(11) (10)
Before imposing sentence for a
violation of
subsection
(1) or (2) (3) or a local ordinance substantially
corresponding
to subsection (1) or (2) (3), the court shall order
the person to undergo screening and assessment by a person or
agency designated by the office of substance abuse services, to
determine whether the person is likely to benefit from
rehabilitative services, including alcohol or drug education and
alcohol or drug treatment programs. As part of the sentence, the
court may order the person to participate in and successfully
complete 1 or more appropriate rehabilitative programs. The person
shall pay for the costs of the screening, assessment, and
rehabilitative services.
(12) (11)
Before accepting a plea of guilty
under this
section, the court shall advise the accused of the statutory
consequences possible as the result of a plea of guilty in respect
to suspension of the person's right to operate an ORV and the
penalty imposed for violation of this section.
(13) (12)
Each municipal judge and each clerk
of a court of
record shall keep a full record of every case in which a person is
charged with a violation of this section. The municipal judge or
clerk of the court of record shall prepare and immediately forward
to the secretary of state an abstract of the court of record for
each case charging a violation of this section.
Sec. 81136. (1) In a criminal prosecution for violating
section
81134 or 81135 or a local ordinance substantially
corresponding
to section 81134, or 81135, or in a criminal
prosecution
for negligent homicide, or manslaughter, or murder
resulting from the operation of an ORV while the operator is
alleged to have been impaired by or under the influence of
intoxicating
alcoholic liquor or a controlled substance or a
combination
of intoxicating alcoholic liquor and a controlled
substance,
or to have had a blood alcohol content of 0.10 0.08
grams or more per 100 milliliters of blood, per 210 liters of
breath, or per 67 milliliters of urine, or to have 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, the amount of alcohol or
controlled substance in the operator's blood at the time alleged as
shown by chemical analysis of the operator's blood, urine, or
breath
shall be is admissible into evidence.
(2) If a chemical test of an operator's blood, urine, or
breath is given, the results of the test shall be made available to
the person charged with an offense enumerated in subsection (1) 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 report at least 2 days before the day of the trial and
the results shall be offered as evidence by the prosecution in a
criminal proceeding. Failure to fully comply with the request shall
bar the admission of the results into evidence by the prosecution.
(3)
Except in a prosecution relating solely to a violation of
section
81134(2), the amount of alcohol in the operator's blood at
the
time alleged as shown by chemical analysis of the operator's
blood,
urine, or breath shall give rise to the following
presumptions:
(a)
If at the time the operator had an alcohol content of 0.07
grams
or less per 100 milliliters of blood, per 210 liters of
breath,
or per 67 milliliters of urine, it shall be presumed that
the
operator was not under the influence of intoxicating liquor.
(b)
If at the time the operator had an alcohol content of more
than
0.07 grams but less than 0.10 grams per 100 milliliters of
blood,
per 210 liters of breath, or per 67 milliliters of urine, it
shall
be presumed that the operator's ability to operate an ORV was
impaired
within the provisions of section 81135 due to the
consumption
of intoxicating liquor.
(c)
If at the time the operator 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, it shall be presumed that
the
operator was under the influence of intoxicating liquor.
(3) (4)
A sample or specimen of urine or breath shall be taken
and collected in a reasonable manner. Only a licensed physician, or
a licensed nurse or medical technician under the direction of a
licensed physician and qualified to withdraw blood acting in a
medical environment, at the request of a peace officer, may
withdraw blood for the purpose of determining the alcoholic content
of the blood under this part. Liability for a crime or civil
damages predicated on the act of withdrawing blood and related
procedures shall not attach to a qualified person who withdraws
blood or assists in the withdrawal in accordance with this part
unless the withdrawal is performed in a negligent manner.
(4) (5)
A person arrested for a crime enumerated in subsection
(1) who takes a chemical test administered at the request of a
peace
officer , as
provided in this part , 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 section within
a reasonable time after his or her detention, and the results of
the test shall be admissible and shall be considered with other
competent evidence in determining the defendant's innocence or
guilt of a crime enumerated in subsection (1). If the person
arrested is administered a chemical test by a person of his or her
own choosing, the person arrested shall be responsible for
obtaining a chemical analysis of the test sample. The person shall
be informed that he or she has the right to demand that a person of
his or her choosing administer 1 of the chemical tests described in
this section, that the results of the test shall be admissible and
shall be considered with other competent evidence in determining
the innocence or guilt of the defendant, and that the person
arrested shall be responsible for obtaining a chemical analysis of
the test sample.
(5) (6)
A person arrested shall be advised that if the person
refuses the request of a peace officer to take a test described in
this section, a test shall not be given without a court order. The
person arrested shall also be advised that the person's refusal of
the request of a peace officer to take a test described in this
section shall result in the suspension of the person's right to
operate an ORV.
(6) (7)
This section shall not be construed as limiting the
introduction of any other competent evidence bearing upon the
question of whether or not the defendant was impaired by or under
the
influence of intoxicating alcoholic liquor or a controlled
substance,
or a combination of intoxicating alcoholic liquor and a
controlled substance, or whether the person had a blood alcohol
content
of 0.10 0.08 grams or more per 100 milliliters of blood,
per 210 liters of breath, or per 67 milliliters of urine or 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.
(7) (8)
If a jury instruction regarding a defendant's refusal
to submit to a chemical test under this section is requested by the
prosecution or the defendant, the jury instruction shall be given
as follows:
"Evidence was admitted in this case which, if believed by the
jury, could prove that the defendant had exercised his or her right
to refuse a chemical test. You are instructed that such a refusal
is within the statutory rights of the defendant and is not evidence
of the defendant's guilt. You are not to consider such a refusal in
determining the guilt or innocence of the defendant.".
(8) (9)
If after an accident the operator of an ORV involved
in the accident is transported to a medical facility and a sample
of the operator's blood is withdrawn at that time for the purpose
of medical treatment, the results of a chemical analysis of that
sample shall be admissible in a criminal prosecution for a crime
described in subsection (1) 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 subsection. A
medical facility or person disclosing information in compliance
with this subsection shall not be civilly or criminally liable for
making the disclosure.
(9) (10)
If after an accident the operator of an ORV involved
in the accident is deceased, a sample of the decedent's blood shall
be withdrawn in a manner directed by the medical examiner for the
purpose of determining blood alcohol content or presence of a
controlled substance, or both. The medical examiner shall give the
results of the chemical analysis to the law enforcement agency
investigating the accident, and that agency shall forward the
results to the department of state police.
Sec. 81137. (1) Except as provided in subsection (2), a person
who operates an ORV 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, and may be requested by a
peace officer to submit 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 if:
(a) The person is arrested for a violation of section
81134(1), or
(2) or 81135 (3), (7), or (8)
or a local ordinance
substantially
corresponding to section 81134(1) or (2) or 81135
(3).
(b)
The person is arrested for negligent homicide, or
manslaughter, or murder resulting from the operation of an ORV, and
the peace officer has reasonable grounds to believe that the person
was
operating the ORV while impaired by or under the influence of
intoxicating
liquor, a controlled substance, or a combination of
intoxicating
liquor and a controlled substance. in
violation of
section 81134.
(2) A person who is afflicted with hemophilia, diabetes, or a
condition requiring the use of an anticoagulant under the direction
of a physician shall not be considered to have given consent to the
withdrawal of blood.
Sec. 81140. (1) If a person who refuses to submit to a
chemical
test pursuant to under section 81138 does not request an
administrative hearing within 14 days after the date of notice
pursuant
to under section 81139, the secretary of state shall
suspend
the person's right to operate an ORV for a period of 6
months
1 year, or for a second or subsequent refusal within a
period
of 7 years, for 1 year 2
years.
(2) If an administrative hearing is requested, the secretary
of state shall appoint a hearing officer to conduct the hearing.
Not less than 10 days' notice of the hearing shall be provided by
mail to the person submitting the request, to the peace officer who
filed the report under section 81138, and, if a 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 and issue subpoenas for the attendance
of necessary witnesses, and may grant a reasonable request for an
adjournment. The hearing shall cover only the following issues:
(a) Whether the peace officer had reasonable grounds to
believe that the person committed a crime described in section
81137(1).
(b) Whether the person was placed under arrest for a crime
described in section 81137(1).
(c) Whether the person reasonably refused to submit to a
chemical test upon request of the officer.
(d) Whether the person was advised of his or her rights under
section 81136.
(3) An administrative hearing conducted under this section is
not a contested case for the purposes of chapter 4 of the
administrative
procedures act of 1969, Act No. 306 of the Public
Acts
of 1969, being sections 24.271 to 24.287 of the Michigan
Compiled
Laws 1969 PA 306, MCL 24.271
to 24.287. The hearing shall
be conducted in an impartial manner. A final decision or order of a
hearing officer shall be made in writing or stated in the record,
and shall include findings of fact based exclusively on the
evidence presented and matters officially noticed, and shall
specify any sanction to be imposed against the person involved. A
copy of the final decision or order shall be delivered or mailed
immediately to the person and the peace officer.
(4) After the administrative hearing, if the person is found
to have unreasonably refused to submit to a chemical test, the
secretary of state shall suspend the person's right to operate an
ORV
for a period of 6 months 1
year, or for a second or subsequent
refusal
within a period of 7 years, for 1 year 2 years. Within 60
days after the final decision or order is issued by the hearing
officer, the person may file a petition in the circuit court of the
county in which the arrest was made to review the suspension. If
after the hearing the person who requested the hearing prevails,
the peace officer who filed the report under section 81138 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 81140b. The scope of the court's review shall be limited to
the
issues provided in section 106 of Act No. 306 of the Public
Acts
of 1969, being section 24.306 of the Michigan Compiled Laws
the administrative procedure act of 1969, 1969 PA 306, MCL 24.306.
(5) The circuit court shall enter an order setting the cause
for hearing for a date certain that is not more than 60 days after
the date of the order. The order, a copy of the petition, which
shall include the person's full name, current address, birth date,
and driver's license number, and all supporting affidavits shall be
served on the secretary of state's office in Lansing not less than
50 days before the date set for the hearing. The department shall
cause
a record to be made of the proceedings held pursuant to under
subsection (2). The record shall be prepared and transcribed in
accordance
with section 86 of Act No. 306 of the Public Acts of
1969,
being section 24.286 of the Michigan Compiled Laws the
administrative procedure act of 1969, 1969 PA 306, MCL 24.286. Upon
notification of the filing of a petition for judicial review, the
department shall transmit to the court in which the petition was
filed, not less than 10 days before the matter is set for review,
the original or a certified copy of the official record of the
proceedings.
Sec. 81140b. (1) A person who is aggrieved by a final
determination of the secretary of state under this part may
petition for a review of the determination in the circuit court in
the county where the person was arrested. The petition shall be
filed within 63 days after the determination is made except that,
for good cause shown, the court may allow the petition to be filed
within 182 days after the determination is made. As provided in
section 81140, a peace officer who is aggrieved by a determination
of a hearing officer in favor of a person who requested a hearing
under section 81140 may, with the consent of the prosecuting
attorney, petition for review of the determination in the circuit
court in the county where the arrest was made. The petition shall
be filed within 63 days after the determination is made except
that, for good cause shown, the court may allow the petition to be
filed within 182 days after the determination is made.
(2) Except as otherwise provided in this section, the circuit
court shall enter an order setting the cause for hearing for a day
certain that is not more than 63 days after the date of the order.
The order, a copy of the petition, that includes the person's full
name, current address, birth date, and driver's license number, and
all supporting affidavits shall be served on the secretary of
state's office in Lansing not less than 20 days before the date set
for the hearing. If the person is seeking a review of the record
prepared under section 81140, the service upon the secretary of
state shall be made not less than 50 days before the date set for
the hearing.
(3) The court may take testimony and examine all the facts and
circumstances incident to the order that the person not operate an
ORV in this state. The court may affirm, modify, or set aside the
order. The order of the court shall be duly entered, and the
petitioner shall file a certified copy of the order with the
secretary of state's office in Lansing within 7 days after entry of
the order.
(4) Except as otherwise provided in this section, in reviewing
a determination under section 81140, the court shall confine its
consideration to a review of the record prepared under section
81140 to determine whether the hearing officer properly determined
the issues enumerated in section 81140.
(5) In reviewing a determination resulting in issuance of an
order under section 81134, the court shall confine its
consideration to a review of the record prepared under section
81140. The court shall set aside the determination of the secretary
of state only if substantial rights of the petitioner have been
prejudiced because the determination is any of the following:
(a) In violation of the constitution of the United States, the
state constitution of 1963, or a statute.
(b) In excess of the secretary of state's statutory authority
or jurisdiction.
(c) Made upon unlawful procedure resulting in material
prejudice to the petitioner.
(d) Not supported by competent, material, and substantial
evidence on the whole record.
(e) Arbitrary, capricious, or clearly an abuse or unwarranted
exercise of discretion.
(f) Affected by other substantial and material error of law.
Sec. 81141. (1) A peace officer who has reasonable cause to
believe that a person was operating an ORV and that the person by
the
consumption of intoxicating alcoholic liquor may have affected
his or her ability to operate the ORV, may require the person to
submit to a preliminary chemical breath analysis.
(2) A peace officer may arrest a person based in whole or in
part upon the results of a preliminary chemical breath analysis.
(3) The results of a preliminary chemical breath analysis
shall be admissible in a criminal prosecution for a crime
enumerated in section 81136(1) or in an administrative hearing held
under section 81140, solely to assist the court or hearing officer
in determining a challenge to the validity of an arrest. This
subsection does not limit the introduction of other competent
evidence offered to establish the validity of an arrest.
(4) A person who submits to a preliminary chemical breath
analysis
shall remain remains subject to the requirements of
sections 81136, 81137, 81138, 81139, and 81140 for the purposes of
chemical tests described in those sections.
(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 state civil infraction and may be ordered to pay
a
civil fine of not more than $100.00 $500.00.
Sec. 81144. If a peace officer has reasonable cause to believe
that a person was, at the time of an accident, the operator of an
ORV involved in the accident and was operating the ORV while under
the
influence of an intoxicating alcoholic liquor, a controlled
substance
as defined in section 7104 of the public health code, Act
No.
368 of the Public Acts of 1978, being section 333.7104 of the
Michigan
Compiled Laws 1978 PA 368,
MCL 333.7104, or a combination
of
intoxicating alcoholic liquor and a controlled substance, or was
operating the ORV while his or her ability to operate an ORV was
impaired
due to the consumption of intoxicating alcoholic liquor, a
controlled
substance, or a combination of intoxicating alcoholic
liquor and a controlled substance, the peace officer may arrest the
alleged operator of the ORV without a warrant.
Enacting section 1. Section 81135 of the natural resources and
environmental protection act, 1994 PA 451, MCL 324.81135, is
repealed.
Enacting section 2. This amendatory act takes effect January
1, 2012.