Bill Text: MI HB5385 | 2013-2014 | 97th Legislature | Engrossed
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 sec. 43a.
Spectrum: Slight Partisan Bill (Republican 12-4)
Status: (Passed) 2014-10-22 - Assigned Pa 315'14 With Immediate Effect [HB5385 Detail]
Download: Michigan-2013-HB5385-Engrossed.html
HB-5385, As Passed Senate, October 1, 2014
SENATE SUBSTITUTE FOR
HOUSE BILL NO. 5385
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 section 43a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 43a. "Preliminary roadside 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
chemical breath roadside analysis. The following
provisions
apply with respect to a preliminary chemical breath
roadside 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 roadside
analysis.
(b)
The results of a preliminary chemical breath roadside
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
roadside 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 roadside 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 roadside 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
roadside 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
roadside 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 roadside
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 chemical breath roadside analysis:
(a) The amount of alcohol or presence of a controlled
substance
or both 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 both 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 both 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
both, 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 chemical breath roadside
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, and
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.
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, or urine for
the purpose of determining the amount of alcohol or presence of a
controlled
substance or both other
intoxicating substance, or any
combination of them, in his or her blood 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).
(4) 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.
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 the
peace officer who requested the
person to submit to the chemical test shall comply with
subdivisions (a) and (b). If a person submits to the chemical test
or a chemical test is performed under a court order and the test
reveals an unlawful alcohol content, or the presence of a
controlled substance or other intoxicating substance, or any
combination of them, the peace officer who requested the person to
submit to the test shall do all of the following, other than
subdivision (b)(i):
(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 chemical test offered under
section 625a(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. and (b)(ii) and indicate in the notice under subsection
(1)(b)(ii) that a subsequent chemical test is pending. If the report
reveals an unlawful alcohol content, or the presence of a
controlled substance or other intoxicating substance, or any
combination of them, the peace officer who requested the person to
submit
to the test shall immediately comply with subsection (1)(b).
(1)(b)(iii). If the report does not reveal an unlawful alcohol
content, or the presence of a controlled substance or other
intoxicating substance, or any combination of them, 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 provided 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) "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.
(c) "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.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
