Bill Text: MI HB5282 | 2017-2018 | 99th Legislature | Engrossed
Bill Title: Crimes; intoxication or impairment; hearing procedure for issuing a restricted license requiring the installation of ignition interlock device; modify. Amends sec. 323 of 1949 PA 300 (MCL 257.323).
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2018-04-10 - Assigned Pa 99'18 With Immediate Effect [HB5282 Detail]
Download: Michigan-2017-HB5282-Engrossed.html
HB-5282, As Passed House, February 27, 2018
HOUSE BILL No. 5282
November 28, 2017, Introduced by Rep. Lucido and referred to the Committee on Judiciary.
A bill to amend 1949 PA 300, entitled
"Michigan vehicle code,"
by amending section 323 (MCL 257.323), as amended by 2016 PA 117.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 323. (1) A person aggrieved by a final determination of
the secretary of state denying the person an operator's or
chauffeur's license, a vehicle group designation, or an indorsement
on a license or revoking, suspending, or restricting an operator's
or chauffeur's license, vehicle group designation, or an
indorsement may petition for a review of the determination in the
circuit court in the county where the person was arrested if the
denial or suspension was imposed under section 625f or under the
order of a trial court under section 328 or, in all other cases, in
the circuit court in the person's county of residence. The person
shall file the petition within 63 days after the determination is
made except that for good cause shown the court may allow the
person to file petition within 182 days after the determination is
made. As provided in section 625f, a peace officer aggrieved by a
determination of a hearing officer in favor of a person who
requested a hearing under section 625f may, with the prosecuting
attorney's consent, petition for review of the determination in the
circuit court in the county where the arrest was made. The peace
officer shall file the petition within 63 days after the
determination is made except that for good cause shown the court
may allow the peace officer to file the petition 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 not more than 63 days after the order's date. 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 must 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 322 or section 625f, the service upon the
secretary
of state shall must 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 relating to the denial, suspension, or restriction of
the person's license under sections 303(1)(d), 320, or 904(10) or
(11), a licensing action under section 310d, or a suspension for a
first violation under section 625f. The court may affirm, modify,
or set aside the restriction, suspension, or denial, except the
court shall not order the secretary of state to issue a restricted
or unrestricted chauffeur's license that would permit the person to
drive a commercial motor vehicle that hauls a hazardous material.
The court shall enter the order 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 resulting in a denial, suspension, restriction, or
revocation under this act, the court shall confine its
consideration to a review of the record prepared under section 322
or 625f or the driving record created under section 204a for a
statutory legal issue, and may determine that the petitioner is
eligible for full driving privileges or, if the petitioner is
subject to a revocation under section 303, may determine that the
petitioner is eligible for restricted driving privileges. The court
shall set aside the secretary of state's determination only if 1 or
more of the following apply:
(a) In determining whether a petitioner is eligible for full
driving privileges, the petitioner's substantial rights have been
prejudiced because the determination is any of the following:
(i) In violation of the Constitution of the United States, the
state constitution of 1963, or a statute.
(ii) In excess of the secretary of state's statutory authority
or jurisdiction.
(iii) Made upon unlawful procedure resulting in material
prejudice to the petitioner.
(iv) Not supported by competent, material, and substantial
evidence on the whole record.
(v) Arbitrary, capricious, or clearly an abuse or unwarranted
exercise of discretion.
(vi) Affected by other substantial and material error of law.
(b) In determining whether a petitioner is eligible for review
of a revocation or denial under section 303, or whether a
petitioner
is eligible for restricted driving privileges, 1 or more
all of the following apply:
(i) The petitioner's substantial rights have been prejudiced
as described in subdivision (a).
(ii) All of the following are satisfied:
(A) The revocation or denial occurred at least 1 year after
the petitioner's license was revoked or denied, or, if the
petitioner's license was previously revoked or denied within the 7
years preceding the most recent revocation or denial, at least 5
years after the most recent revocation or denial, whichever is
later.
(B) The court finds that the petitioner meets the department's
requirements under the rules promulgated by the department under
the administrative procedures act of 1969, 1969 PA 306, MCL 24.201
to 24.238. For purposes of this sub-subparagraph only, the court
may take additional testimony to supplement the record prepared
under section 322 or 625f or the driving record created under
section 204a, but shall not expand the record.
(C) If the revocation or denial was under section 303(2)(a),
(b), (c), or (g), the petitioner rebuts by clear and convincing
evidence the presumption that he or she is a habitual offender, and
establishes to the court's satisfaction that he or she is likely to
adhere to any requirements imposed by the court. For purposes of
this sub-subparagraph, the conviction that resulted in the
revocation and any record of denial of reinstatement by the
department are prima facie evidence that the petitioner is a
habitual offender. For purposes of this sub-subparagraph only, the
court may take additional testimony to supplement the record
prepared under section 322 or 625f or the driving record created
under section 204a, but shall not expand the record.
(5) If the court determines that a petitioner is eligible for
restricted driving privileges under subsection (4)(b), the court
shall issue an order that includes, but is not limited to, all of
the following:
(a) The court's findings under section 303 and R 257.1 to R
257.1727
of the Michigan administrative code.Administrative Code.
(b) A requirement that each motor vehicle operated by the
petitioner be equipped with a properly installed and functioning
ignition
interlock device for a period of at least not less than 1
year before the petitioner will be eligible to return to the
secretary of state for a hearing. The petitioner shall bear the
cost of an ignition interlock device required under this
subdivision.
A restricted license shall must
not be issued to the
petitioner until the secretary of state has verified that 1 or more
ignition interlock devices, if applicable, have been installed as
required by this subdivision.
(c) A method by which the court will verify that the
petitioner maintains no-fault insurance for each vehicle described
in subdivision (b) as required by chapter 31 of the insurance code
of
1956, 1956 PA 218, MCL 500.3103 500.3101
to 500.3179.
(d) A requirement that a restricted license issued to the
petitioner
shall must not permit the petitioner to operate a
commercial motor vehicle that hauls hazardous materials.
(e) A provision that the secretary of state shall revoke the
petitioner's restricted license if any of the following occur:
(i) The petitioner violates the restrictions on his or her
license.
(ii) The petitioner violates subdivision (b).
(iii) The petitioner removes, or causes to be removed, an
ignition interlock device required under subdivision (b), unless
the secretary of state has authorized the removal under section
322a.
(iv) The petitioner commits an act that would be a major
violation if the petitioner's license had been issued under section
322(6) or consumes alcohol or a controlled substance without a
prescription. As used in this subparagraph, "major violation" means
that
term as defined in R 257.301a of the Michigan administrative
code.Administrative Code.
(v) The petitioner is arrested for a violation of section 625
or a local ordinance, law of this state or another state, or law of
the United States that substantially corresponds to section 625.
(6) If the court determines that a petitioner is eligible for
restricted driving privileges under this section and the petitioner
intends to operate a vehicle owned by his or her employer, the
court shall notify the employer of the petitioner's obligation
under subsection (5)(b). This subsection does not require an
employer who receives a notice under this subsection to install an
ignition interlock device on a vehicle. This subsection does not
apply to a vehicle that is operated by a self-employed individual
who uses the vehicle for both business and personal use.
(7) If a court determines that a petitioner is eligible for
restricted driving privileges, the secretary of state shall not
issue a restricted license to the petitioner until he or she has
satisfied any other applicable requirements of state or federal
law, and shall not issue a restricted license to the petitioner if
the order granting eligibility for restricted driving privileges
does not comply with subsection (5).
(8) If a court determines that a petitioner is eligible for
restricted driving privileges, the court shall notify the
department of its determination through the issuance of an order
under subsection (5) and shall not retain jurisdiction over a
license issued under this section.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
