Bill Text: MI HB6432 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Controlled substances; other; administering preliminary chemical analysis for presence of controlled substances to operator of motor vehicle; authorize. Amends secs. 319d, 320a & 625a of 1949 PA 300 (MCL 257.319d et seq.) & adds sec. 43a.

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2010-09-15 - Printed Bill Filed 09/15/2010 [HB6432 Detail]

Download: Michigan-2009-HB6432-Introduced.html

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HOUSE BILL No. 6432

 

September 14, 2010, Introduced by Reps. Rick Jones, Slavens, Ball and Liss and referred to the Committee on Judiciary.

 

      A bill to amend 1949 PA 300, entitled

 

"Michigan vehicle code,"

 

by amending sections 319d, 320a, and 625a (MCL 257.319d,

 

257.320a, and 257.625a), section 319d as amended by 1996 PA 404,

 

section 320a as amended by 2010 PA 58, and section 625a as

 

amended by 2003 PA 61, and by adding section 43a.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

 1        Sec. 43a. "Preliminary chemical analysis" means either of

 

 2  the following:

 

 3        (a) A preliminary chemical breath analysis. As used in this

 

 4  subdivision, "preliminary chemical breath analysis" means the on-

 

 5  site taking and analysis of a person's breath to determine the

 

 6  presence of alcohol in the person's body.

 

 7        (b) Preliminary chemical oral fluids analysis. As used in

 

 1  this subdivision:

 

 2        (i) "Immunochemical assay" means a scientific technique that

 

 3  uses specific binding between an antigen and its homologous

 

 4  antibody to identify and quantify a substance in a sample.

 

 5        (ii) "Preliminary chemical oral fluids analysis" means the

 

 6  on-site taking and analysis by immunochemical assay of the oral

 

 7  fluids of a person for the purpose of detecting the presence of

 

 8  controlled substances within the person's body.

 

 9        Sec. 319d. (1) A person, whether licensed or not, shall not

 

10  operate a commercial motor vehicle within this state with an

 

11  alcohol content of 0.015 grams or more per 100 milliliters of

 

12  blood, per 210 liters of breath, or per 67 milliliters of urine.

 

13        (2) A peace officer who has reasonable cause to believe that

 

14  a person was operating a commercial motor vehicle within the

 

15  state with an alcohol content of 0.015 grams or more per 100

 

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

 

17  milliliters of urine, as measured by a preliminary chemical

 

18  breath analysis or a chemical test provided under section 625a,

 

19  shall order the person out-of-service immediately for 24 hours,

 

20  which shall begin upon issuance of the order.

 

21        (3) A peace officer shall immediately order a person who

 

22  refuses to submit to a preliminary chemical breath analysis

 

23  requested or a chemical test provided under section 625a out-of-

 

24  service for 24 hours, which shall begin when the order is issued.

 

25        (4) A person ordered out-of-service under this section, a

 

26  local ordinance substantially corresponding to this section, or a

 

27  law or local ordinance of another state substantially

 

 1  corresponding to this section shall not operate a commercial

 

 2  motor vehicle within this state during the 24-hour out-of-service

 

 3  period.

 

 4        (5) A peace officer who issues an out-of-service order under

 

 5  this section shall provide for the safe and expeditious

 

 6  disposition of a product carried by a commercial motor vehicle

 

 7  that is hazardous or would result in damage to the vehicle, human

 

 8  health, or the environment.

 

 9        (6) Failure to comply with subsection (1) is not a civil

 

10  infraction or criminal violation of this act.

 

11        (7) A person who violates subsection (4) is guilty of a

 

12  misdemeanor punishable by imprisonment for not more than 90 days

 

13  or a fine of not more than $100.00, or both.

 

14        Sec. 320a. (1) The secretary of state shall record the date

 

15  of conviction, civil infraction determination, or probate court

 

16  disposition, and the number of points for each, based on the

 

17  following formula, except as otherwise provided in this section

 

18  and section 629c:

 

 

19      (a) Manslaughter, negligent homicide, or a

20 felony resulting from the operation of a motor

21 vehicle, ORV, or snowmobile............................6 points

22      (b) A violation of section 601b(2) or (3),

23 601c(1) or (2), or 653a(3) or (4) or, beginning

24 October 31, 2010, a violation of section 601d..........6 points

25      (c) A violation of section 625(1), (4), (5),

26 (7), or (8), section 81134 or 82127(1) of the

27 natural resources and environmental protection act,

28 1994 PA 451, MCL 324.81134 and 324.82127, or a law or

1  ordinance substantially corresponding to section

2  625(1), (4), (5), (7), or (8), or section 81134

3  or 82127(1) of the natural resources and

4  environmental protection act, 1994 PA 451,

5  MCL 324.81134 and 324.82127............................6 points

6       (d) Failing to stop and disclose identity

7  at the scene of an accident when required by law.......6 points

8       (e) Operating a motor vehicle in violation

9  of section 626.........................................6 points

10      (f) Fleeing or eluding an officer.................6 points

11      (g) A violation of section 627(9) pertaining

12 to speed in a work zone described in that section

13 by exceeding the lawful maximum by more than

14 15 miles per hour......................................5 points

15      (h) A violation of any law other than the

16 law described in subdivision (g) or ordinance

17 pertaining to speed by exceeding the lawful

18 maximum by more than 15 miles per hour.................4 points

19      (i) A violation of section 625(3) or (6),

20 section 81135 or 82127(3) of the natural

21 resources and environmental protection act,

22 1994 PA 451, MCL 324.81135 and 324.82127,

23 or a law or ordinance substantially corresponding

24 to section 625(3) or (6) or section 81135

25 or 82127(3) of the natural resources and

26 environmental protection act, 1994 PA 451,

27 MCL 324.81135 and 324.82127............................4 points

28      (j) A violation of section 626a or a law

29 or ordinance substantially corresponding to

30 section 626a...........................................4 points

31      (k) A violation of section 653a(2)................4 points

1       (l) A violation of section 627(9) pertaining

2  to speed in a work zone described in that section

3  by exceeding the lawful maximum by more than 10

4  but not more than 15 miles per hour....................4 points

5       (m) Beginning October 31, 2010, a

6  moving violation resulting in an at-fault

7  collision with another vehicle, a person,

8  or any other object....................................4 points

9       (n) A violation of any law other than the

10 law described in subdivision (l) or ordinance

11 pertaining to speed by exceeding the lawful

12 maximum by more than 10 but not more than 15

13 miles per hour or careless driving in violation

14 of section 626b or a law or ordinance substantially

15 corresponding to section 626b..........................3 points

16      (o) A violation of section 627(9) pertaining

17 to speed in a work zone described in that section

18 by exceeding the lawful maximum by 10 miles per

19 hour or less...........................................3 points

20      (p) A violation of any law other than the law

21 described in subdivision (o) or ordinance

22 pertaining to speed by exceeding the lawful maximum

23 by 10 miles per hour or less...........................2 points

24      (q) Disobeying a traffic signal or stop sign,

25 or improper passing....................................3 points

26      (r) A violation of section 624a, 624b, or

27 a law or ordinance substantially corresponding to

28 section 624a or 624b...................................2 points

29      (s) A violation of section 310e(4) or (6) or

30 a law or ordinance substantially corresponding to

31 section 310e(4) or (6).................................2 points

1       (t) All other moving violations pertaining to

2  the operation of motor vehicles reported under

3  this section...........................................2 points

4       (u) A refusal by a person less than 21 years of

5  age to submit to a preliminary breath test

6  chemical analysis required by a peace officer

7  under section 625a.....................................2 points

 

 

 8        (2) Points shall not be entered for a violation of section

 

 9  310e(14), 311, 602b, 625m, 658, 710d, 717, 719, 719a, or 723.

 

10        (3) Points shall not be entered for bond forfeitures.

 

11        (4) Points shall not be entered for overweight loads or for

 

12  defective equipment.

 

13        (5) If more than 1 conviction, civil infraction

 

14  determination, or probate court disposition results from the same

 

15  incident, points shall be entered only for the violation that

 

16  receives the highest number of points under this section.

 

17        (6) If a person has accumulated 9 points as provided in this

 

18  section, the secretary of state may call the person in for an

 

19  interview as to the person's driving ability and record after due

 

20  notice as to time and place of the interview. If the person fails

 

21  to appear as provided in this subsection, the secretary of state

 

22  shall add 3 points to the person's record.

 

23        (7) If a person violates a speed restriction established by

 

24  an executive order issued during a state of energy emergency as

 

25  provided by 1982 PA 191, MCL 10.81 to 10.89, the secretary of

 

26  state shall enter points for the violation pursuant to subsection

 

27  (1).

 

 1        (8) The secretary of state shall enter 6 points upon the

 

 2  record of a person whose license is suspended or denied pursuant

 

 3  to section 625f. However, if a conviction, civil infraction

 

 4  determination, or probate court disposition results from the same

 

 5  incident, additional points for that offense shall not be

 

 6  entered.

 

 7        (9) If a Michigan driver commits a violation in another

 

 8  state that would be a civil infraction if committed in Michigan,

 

 9  and a conviction results solely because of the failure of the

 

10  Michigan driver to appear in that state to contest the violation,

 

11  upon receipt of the abstract of conviction by the secretary of

 

12  state, the violation shall be noted on the driver's record, but

 

13  no points shall be assessed against his or her driver's license.

 

14        Sec. 625a. (1) A peace officer may arrest a person without a

 

15  warrant under either of the following circumstances:

 

16        (a) The peace officer has reasonable cause to believe the

 

17  person was, at the time of an accident in this state, the

 

18  operator of a vehicle involved in the accident and was operating

 

19  the vehicle in violation of section 625 or a local ordinance

 

20  substantially corresponding to section 625.

 

21        (b) The person is found in the driver's seat of a vehicle

 

22  parked or stopped on a highway or street within this state if any

 

23  part of the vehicle intrudes into the roadway and the peace

 

24  officer has reasonable cause to believe the person was operating

 

25  the vehicle in violation of section 625 or a local ordinance

 

26  substantially corresponding to section 625.

 

27        (2) A peace officer who has reasonable cause to believe that

 

 1  a person was operating a vehicle upon a public highway or other

 

 2  place open to the public or generally accessible to motor

 

 3  vehicles, including an area designated for the parking of

 

 4  vehicles, within this state and that the person by the

 

 5  consumption of alcoholic liquor or a controlled substance may

 

 6  have affected his or her ability to operate a vehicle, or

 

 7  reasonable cause to believe that a person was operating a

 

 8  commercial motor vehicle within the state while the person's

 

 9  blood, breath, or urine contained any measurable amount of

 

10  alcohol or a controlled substance or while the person had any

 

11  detectable presence of alcoholic liquor or a controlled

 

12  substance, or reasonable cause to believe that a person who is

 

13  less than 21 years of age was operating a vehicle upon a public

 

14  highway or other place open to the public or generally accessible

 

15  to motor vehicles, including an area designated for the parking

 

16  of vehicles, within this state while the person had any bodily

 

17  alcohol content as that term is defined in section 625(6), may

 

18  require the person to submit to a preliminary chemical breath

 

19  analysis. The following provisions apply with respect to a

 

20  preliminary chemical breath analysis administered under this

 

21  subsection:

 

22        (a) A peace officer may arrest a person based in whole or in

 

23  part upon the results of a preliminary chemical breath analysis.

 

24        (b) The Subject to admissibility under the Michigan rules of

 

25  evidence, the results of a preliminary chemical breath analysis

 

26  are admissible in a criminal prosecution for a crime enumerated

 

27  in section 625c(1) or in an administrative hearing for 1 or more

 

 1  of the following purposes:

 

 2        (i) To assist the court or hearing officer in determining a

 

 3  challenge to the validity of an arrest. This subparagraph does

 

 4  not limit the introduction of other competent evidence offered to

 

 5  establish the validity of an arrest.

 

 6        (ii) As evidence of the defendant's breath alcohol content,

 

 7  if offered by the defendant to rebut testimony elicited on cross-

 

 8  examination of a defense witness that the defendant's breath

 

 9  alcohol content was higher at the time of the charged offense

 

10  than when a chemical test was administered under subsection (6).

 

11        (iii) As evidence of the defendant's breath alcohol content,

 

12  if offered by the prosecution to rebut testimony elicited on

 

13  cross-examination of a prosecution witness that the defendant's

 

14  breath alcohol content was lower at the time of the charged

 

15  offense than when a chemical test was administered under

 

16  subsection (6).

 

17        (c) The results of a preliminary chemical oral fluids

 

18  analysis are inadmissible as evidence for purposes other than the

 

19  purposes listed under subdivision (b)(i) only if the results of

 

20  the preliminary chemical oral fluids test are confirmed by liquid

 

21  chromatography with mass spectrometry X 2 in a laboratory

 

22  approved by the department of state police.

 

23        (d) (c) A person who submits to a preliminary chemical

 

24  breath analysis remains subject to the requirements of sections

 

25  625c, 625d, 625e, and 625f for purposes of chemical tests

 

26  described in those sections.

 

27        (e) (d) Except as provided in subsection (5), a person who

 

 1  refuses to submit to a preliminary chemical breath analysis upon

 

 2  a lawful request by a peace officer is responsible for a civil

 

 3  infraction.

 

 4        (3) A peace officer shall use the results of a preliminary

 

 5  chemical breath analysis conducted pursuant to under this section

 

 6  to determine whether to order a person out-of-service under

 

 7  section 319d. A peace officer shall order out-of-service as

 

 8  required under section 319d a person who was operating a

 

 9  commercial motor vehicle and who refuses to submit to a

 

10  preliminary chemical breath analysis as provided in this section.

 

11  This section does not limit use of other competent evidence by

 

12  the peace officer to determine whether to order a person out-of-

 

13  service under section 319d.

 

14        (4) A person who was operating a commercial motor vehicle

 

15  and who is requested to submit to a preliminary chemical breath

 

16  analysis under this section shall be advised that refusing a

 

17  peace officer's request to take a test described in this section

 

18  is a misdemeanor punishable by imprisonment for not more than 93

 

19  days or a fine of not more than $100.00, or both, and will result

 

20  in the issuance of a 24-hour out-of-service order.

 

21        (5) A person who was operating a commercial motor vehicle

 

22  and who refuses to submit to a preliminary chemical breath

 

23  analysis upon a peace officer's lawful request is guilty of a

 

24  misdemeanor punishable by imprisonment for not more than 93 days

 

25  or a fine of not more than $100.00, or both.

 

26        (6) The following provisions apply with respect to chemical

 

27  tests and analysis of a person's blood, urine, or breath, other

 

 1  than preliminary chemical breath analysis:

 

 2        (a) The amount of alcohol or presence of a controlled

 

 3  substance or both in a driver's blood or urine or the amount of

 

 4  alcohol in a person's breath at the time alleged as shown by

 

 5  chemical analysis of the person's blood, urine, or breath is

 

 6  admissible into evidence in any civil or criminal proceeding and

 

 7  is presumed to be the same as at the time the person operated the

 

 8  vehicle.

 

 9        (b) A person arrested for a crime described in section

 

10  625c(1) shall be advised of all of the following:

 

11        (i) If he or she takes a chemical test of his or her blood,

 

12  urine, or breath administered at the request of a peace officer,

 

13  he or she has the right to demand that a person of his or her own

 

14  choosing administer 1 of the chemical tests.

 

15        (ii) The results of the test are admissible in a judicial

 

16  proceeding as provided under this act and will be considered with

 

17  other admissible evidence in determining the defendant's

 

18  innocence or guilt.

 

19        (iii) He or she is responsible for obtaining a chemical

 

20  analysis of a test sample obtained at his or her own request.

 

21        (iv) If he or she refuses the request of a peace officer to

 

22  take a test described in subparagraph (i), a test shall not be

 

23  given without a court order, but the peace officer may seek to

 

24  obtain a court order.

 

25        (v) Refusing a peace officer's request to take a test

 

26  described in subparagraph (i) will result in the suspension of his

 

27  or her operator's or chauffeur's license and vehicle group

 

 1  designation or operating privilege and in the addition of 6

 

 2  points to his or her driver record.

 

 3        (c) A sample or specimen of urine or breath shall be taken

 

 4  and collected in a reasonable manner. Only a licensed physician,

 

 5  or an individual operating under the delegation of a licensed

 

 6  physician under section 16215 of the public health code, 1978 PA

 

 7  368, MCL 333.16215, qualified to withdraw blood and acting in a

 

 8  medical environment, may withdraw blood at a peace officer's

 

 9  request to determine the amount of alcohol or presence of a

 

10  controlled substance or both in the person's blood, as provided

 

11  in this subsection. Liability for a crime or civil damages

 

12  predicated on the act of withdrawing or analyzing blood and

 

13  related procedures does not attach to a licensed physician or

 

14  individual operating under the delegation of a licensed physician

 

15  who withdraws or analyzes blood or assists in the withdrawal or

 

16  analysis in accordance with this act unless the withdrawal or

 

17  analysis is performed in a negligent manner.

 

18        (d) A chemical test described in this subsection shall be

 

19  administered at the request of a peace officer having reasonable

 

20  grounds to believe the person has committed a crime described in

 

21  section 625c(1). A person who takes a chemical test administered

 

22  at a peace officer's request as provided in this section shall be

 

23  given a reasonable opportunity to have a person of his or her own

 

24  choosing administer 1 of the chemical tests described in this

 

25  subsection within a reasonable time after his or her detention.

 

26  The test results are admissible and shall be considered with

 

27  other admissible evidence in determining the defendant's

 

 1  innocence or guilt. If the person charged is administered a

 

 2  chemical test by a person of his or her own choosing, the person

 

 3  charged is responsible for obtaining a chemical analysis of the

 

 4  test sample.

 

 5        (e) If, after an accident, the driver of a vehicle involved

 

 6  in the accident is transported to a medical facility and a sample

 

 7  of the driver's blood is withdrawn at that time for medical

 

 8  treatment, the results of a chemical analysis of that sample are

 

 9  admissible in any civil or criminal proceeding to show the amount

 

10  of alcohol or presence of a controlled substance or both in the

 

11  person's blood at the time alleged, regardless of whether the

 

12  person had been offered or had refused a chemical test. The

 

13  medical facility or person performing the chemical analysis shall

 

14  disclose the results of the analysis to a prosecuting attorney

 

15  who requests the results for use in a criminal prosecution as

 

16  provided in this subdivision. A medical facility or person

 

17  disclosing information in compliance with this subsection is not

 

18  civilly or criminally liable for making the disclosure.

 

19        (f) If, after an accident, the driver of a vehicle involved

 

20  in the accident is deceased, a sample of the decedent's blood

 

21  shall be withdrawn in a manner directed by the medical examiner

 

22  to determine the amount of alcohol or the presence of a

 

23  controlled substance, or both, in the decedent's blood. The

 

24  medical examiner shall give the results of the chemical analysis

 

25  of the sample to the law enforcement agency investigating the

 

26  accident and that agency shall forward the results to the

 

27  department of state police.

 

 1        (g) The department of state police shall promulgate uniform

 

 2  rules in compliance with the administrative procedures act of

 

 3  1969, 1969 PA 306, MCL 24.201 to 24.328, for the administration

 

 4  of chemical tests for the purposes of this section. An instrument

 

 5  used for a preliminary chemical breath analysis may be used for a

 

 6  chemical test described in this subsection if approved under

 

 7  rules promulgated by the department of state police.

 

 8        (7) The provisions of subsection (6) relating to chemical

 

 9  testing do not limit the introduction of any other admissible

 

10  evidence bearing upon any of the following questions:

 

11        (a) Whether the person was impaired by, or under the

 

12  influence of, alcoholic liquor, a controlled substance, or a

 

13  combination of alcoholic liquor and a controlled substance.

 

14        (b) Whether the person had an alcohol content of 0.08 grams

 

15  or more per 100 milliliters of blood, per 210 liters of breath,

 

16  or per 67 milliliters of urine or, beginning October 1, 2013, the

 

17  person had an alcohol content of 0.10 grams or more per 100

 

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

 

19  milliliters of urine.

 

20        (c) If the person is less than 21 years of age, whether the

 

21  person had any bodily alcohol content within his or her body. As

 

22  used in this subdivision, "any bodily alcohol content" means

 

23  either of the following:

 

24        (i) An alcohol content of 0.02 grams or more but less than

 

25  0.08 grams per 100 milliliters of blood, per 210 liters of

 

26  breath, or per 67 milliliters of urine or, beginning October 1,

 

27  2013, the person had an alcohol content of 0.02 grams or more but

 

 1  less than 0.10 grams or more per 100 milliliters of blood, per

 

 2  210 liters of breath, or per 67 milliliters of urine.

 

 3        (ii) Any presence of alcohol within a person's body resulting

 

 4  from the consumption of alcoholic liquor, other than the

 

 5  consumption of alcoholic liquor as a part of a generally

 

 6  recognized religious service or ceremony.

 

 7        (8) If a chemical test described in subsection (6) is

 

 8  administered, the test results shall be made available to the

 

 9  person charged or the person's attorney upon written request to

 

10  the prosecution, with a copy of the request filed with the court.

 

11  The prosecution shall furnish the results at least 2 days before

 

12  the day of the trial. The prosecution shall offer the test

 

13  results as evidence in that trial. Failure to fully comply with

 

14  the request bars the admission of the results into evidence by

 

15  the prosecution.

 

16        (9) A person's refusal to submit to a chemical test as

 

17  provided in subsection (6) is admissible in a criminal

 

18  prosecution for a crime described in section 625c(1) only to show

 

19  that a test was offered to the defendant, but not as evidence in

 

20  determining the defendant's innocence or guilt. The jury shall be

 

21  instructed accordingly.