Bill Text: MI HB5385 | 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 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-Introduced.html
HOUSE BILL No. 5385
March 4, 2014, Introduced by Reps. Lauwers, Cotter, Graves, Kurtz, Lori, Daley, Victory, Callton, Johnson, LaFontaine, Rutledge, Clemente, LaVoy, Schor, Muxlow and Rendon 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.