Bill Text: MI SB0644 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Criminal procedure; self-incrimination; requiring minor to submit to chemical test to determine whether minor has consumed alcoholic liquor; prohibit under certain circumstances unless court order is obtained. Amends sec. 703 of 1998 PA 58 (MCL 436.1703).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2009-06-17 - Referred To Committee On Judiciary [SB0644 Detail]

Download: Michigan-2009-SB0644-Introduced.html

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SENATE BILL No. 644

 

 

June 17, 2009, Introduced by Senator SWITALSKI and referred to the Committee on Judiciary.

 

 

 

     A bill to amend 1998 PA 58, entitled

 

"Michigan liquor control code of 1998,"

 

by amending section 703 (MCL 436.1703), as amended by 2006 PA 443.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 703. (1) A minor shall not purchase or attempt to

 

purchase alcoholic liquor, consume or attempt to consume alcoholic

 

liquor, possess or attempt to possess alcoholic liquor, or have any

 

bodily alcohol content, except as provided in this section. A minor

 

who violates this subsection is guilty of a misdemeanor punishable

 

by the following fines and sanctions and is not subject to the

 

penalties prescribed in section 909:

 

     (a) For the first violation a fine of not more than $100.00,

 

and may be ordered to participate in substance abuse prevention

 

services or substance abuse treatment and rehabilitation services

 

as defined in section 6107 of the public health code, 1978 PA 368,

 

MCL 333.6107, and designated by the administrator of substance

 

abuse services, and may be ordered to perform community service and

 

to undergo substance abuse screening and assessment at his or her

 

own expense as described in subsection (4).

 

     (b) For a violation of this subsection following a prior

 

conviction or juvenile adjudication for a violation of this

 

subsection, section 33b(1) of former 1933 (Ex Sess) PA 8, or a

 

local ordinance substantially corresponding to this subsection or

 

section 33b(1) of former 1933 (Ex Sess) PA 8, by imprisonment for

 

not more than 30 days but only if the minor has been found by the

 

court to have violated an order of probation, failed to

 

successfully complete any treatment, screening, or community

 

service ordered by the court, or failed to pay any fine for that

 

conviction or juvenile adjudication, a fine of not more than

 

$200.00, or both, and may be ordered to participate in substance

 

abuse prevention services or substance abuse treatment and

 

rehabilitation services as defined in section 6107 of the public

 

health code, 1978 PA 368, MCL 333.6107, and designated by the

 

administrator of substance abuse services, to perform community

 

service, and to undergo substance abuse screening and assessment at

 

his or her own expense as described in subsection (4).

 

     (c) For a violation of this subsection following 2 or more

 

prior convictions or juvenile adjudications for a violation of this

 

subsection, section 33b(1) of former 1933 (Ex Sess) PA 8, or a

 

local ordinance substantially corresponding to this subsection or

 

section 33b(1) of former 1933 (Ex Sess) PA 8, by imprisonment for

 

not more than 60 days but only if the minor has been found by the

 

court to have violated an order of probation, failed to

 

successfully complete any treatment, screening, or community

 

service ordered by the court, or failed to pay any fine for that

 

conviction or juvenile adjudication, a fine of not more than

 

$500.00, or both, and may be ordered to participate in substance

 

abuse prevention services or substance abuse treatment and

 

rehabilitation services as defined in section 6107 of the public

 

health code, 1978 PA 368, MCL 333.6107, and designated by the

 

administrator of substance abuse services, to perform community

 

service, and to undergo substance abuse screening and assessment at

 

his or her own expense as described in subsection (4).

 

     (2) A person who furnishes fraudulent identification to a

 

minor , or, notwithstanding subsection (1), a minor who uses

 

fraudulent identification to purchase alcoholic liquor , 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.

 

     (3) When an individual who has not previously been convicted

 

of or received a juvenile adjudication for a violation of

 

subsection (1) pleads guilty to a violation of subsection (1) or

 

offers a plea of admission in a juvenile delinquency proceeding for

 

a violation of subsection (1), the court, without entering a

 

judgment of guilt in a criminal proceeding or a determination in a

 

juvenile delinquency proceeding that the juvenile has committed the

 

offense and with the consent of the accused, may defer further

 

proceedings and place the individual on probation upon terms and

 

conditions that include, but are not limited to, the sanctions set

 

forth in subsection (1)(a), payment of the costs including minimum

 

state cost as provided for in section 18m of chapter XIIA of the

 

probate code of 1939, 1939 PA 288, MCL 712A.18m, and section 1j of

 

chapter IX of the code of criminal procedure, 1927 PA 175, MCL

 

769.1j, and the costs of probation as prescribed in section 3 of

 

chapter XI of the code of criminal procedure, 1927 PA 175, MCL

 

771.3. Upon violation of a term or condition of probation or upon a

 

finding that the individual is utilizing this subsection in another

 

court, the court may enter an adjudication of guilt, or a

 

determination in a juvenile delinquency proceeding that the

 

individual has committed the offense, and proceed as otherwise

 

provided by law. Upon fulfillment of the terms and conditions of

 

probation, the court shall discharge the individual and dismiss the

 

proceedings. Discharge and dismissal under this section shall be

 

without adjudication of guilt or without a determination in a

 

juvenile delinquency proceeding that the individual has committed

 

the offense and is not a conviction or juvenile adjudication for

 

purposes of this section or for purposes of disqualifications or

 

disabilities imposed by law upon conviction of a crime, including

 

the additional penalties imposed for second or subsequent

 

convictions or juvenile adjudications under subsection (1)(b) and

 

(c). There may be only 1 discharge and dismissal under this

 

subsection as to an individual. The court shall maintain a

 

nonpublic record of the matter while proceedings are deferred and

 

the individual is on probation and if there is a discharge and

 

dismissal under this subsection. The secretary of state shall

 

retain a nonpublic record of a plea and of the discharge and

 

dismissal under this subsection. These records shall be furnished

 

to any of the following:

 

     (a) To a court, prosecutor, or police agency upon request for

 

the purpose of determining if an individual has already utilized

 

this subsection.

 

     (b) To the department of corrections, a prosecutor, or a law

 

enforcement agency, upon the department's, a prosecutor's, or a law

 

enforcement agency's request, subject to all of the following

 

conditions:

 

     (i) At the time of the request, the individual is an employee

 

of the department of corrections, the prosecutor, or the law

 

enforcement agency, or an applicant for employment with the

 

department of corrections, the prosecutor, or the law enforcement

 

agency.

 

     (ii) The record is used by the department of corrections, the

 

prosecutor, or the law enforcement agency only to determine whether

 

an employee has violated his or her conditions of employment or

 

whether an applicant meets criteria for employment.

 

     (4) The court may order the person convicted of violating

 

subsection (1) to undergo screening and assessment by a person or

 

agency as designated by the substance abuse coordinating agency as

 

defined in section 6103 of the public health code, 1978 PA 368, MCL

 

333.6103, in order to determine whether the person is likely to

 

benefit from rehabilitative services, including alcohol or drug

 

education and alcohol or drug treatment programs. The court may

 

order a person subject to a conviction or juvenile adjudication of,

 

or placed on probation regarding, a violation of subsection (1) to

 

submit to a random or regular preliminary chemical breath analysis.

 

In the case of a minor under 18 years of age not emancipated under

 

1968 PA 293, MCL 722.1 to 722.6, the parent, guardian, or custodian

 

may request a random or regular preliminary chemical breath

 

analysis as part of the probation.

 

     (5) The secretary of state shall suspend the operator's or

 

chauffeur's license of an individual convicted of violating

 

subsection (1) or (2) as provided in section 319 of the Michigan

 

vehicle code, 1949 PA 300, MCL 257.319.

 

     (6) A peace officer who has reasonable cause to believe a

 

minor has consumed alcoholic liquor or has any bodily alcohol

 

content may require request the person to submit to a preliminary

 

chemical breath analysis. If the minor refuses the request of the

 

peace office to take the test, a test shall not be given without a

 

court order. A peace officer may arrest a person based in whole or

 

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

 

The results of a preliminary chemical breath analysis or other

 

acceptable blood alcohol test are admissible in a criminal

 

prosecution to determine whether the minor has consumed or

 

possessed alcoholic liquor or had any bodily alcohol content. A

 

minor who refuses to submit to a preliminary chemical breath test

 

analysis as required in this subsection is responsible for a state

 

civil infraction and may be ordered to pay a civil fine of not more

 

than $100.00.

 

     (7) A law enforcement agency, upon determining that a person

 

less than 18 years of age who is not emancipated under 1968 PA 293,

 

MCL 722.1 to 722.6, allegedly consumed, possessed, purchased

 

alcoholic liquor, attempted to consume, possess, or purchase

 

alcoholic liquor, or had any bodily alcohol content in violation of

 

subsection (1) shall notify the parent or parents, custodian, or

 

guardian of the person as to the nature of the violation if the

 

name of a parent, guardian, or custodian is reasonably

 

ascertainable by the law enforcement agency. The notice required by

 

this subsection shall be made not later than 48 hours after the law

 

enforcement agency determines that the person who allegedly

 

violated subsection (1) is less than 18 years of age and not

 

emancipated under 1968 PA 293, MCL 722.1 to 722.6. The notice may

 

be made by any means reasonably calculated to give prompt actual

 

notice including, but not limited to, notice in person, by

 

telephone, or by first-class mail. If an individual less than 17

 

years of age is incarcerated for violating subsection (1), his or

 

her parents or legal guardian shall be notified immediately as

 

provided in this subsection.

 

     (8) This section does not prohibit a minor from possessing

 

alcoholic liquor during regular working hours and in the course of

 

his or her employment if employed by a person licensed by this act,

 

by the commission, or by an agent of the commission, if the

 

alcoholic liquor is not possessed for his or her personal

 

consumption.

 

     (9) This section does not limit the civil or criminal

 

liability of the vendor or the vendor's clerk, servant, agent, or

 

employee for a violation of this act.

 

     (10) The consumption of alcoholic liquor by a minor who is

 

enrolled in a course offered by an accredited postsecondary

 

educational institution in an academic building of the institution

 

under the supervision of a faculty member is not prohibited by this

 

act if the purpose of the consumption is solely educational and is

 

a requirement of the course.

 

     (11) The consumption by a minor of sacramental wine in

 

connection with religious services at a church, synagogue, or

 

temple is not prohibited by this act.

 

     (12) Subsection (1) does not apply to a minor who participates

 

in either or both of the following:

 

     (a) An undercover operation in which the minor purchases or

 

receives alcoholic liquor under the direction of the person's

 

employer and with the prior approval of the local prosecutor's

 

office as part of an employer-sponsored internal enforcement

 

action.

 

     (b) An undercover operation in which the minor purchases or

 

receives alcoholic liquor under the direction of the state police,

 

the commission, or a local police agency as part of an enforcement

 

action unless the initial or contemporaneous purchase or receipt of

 

alcoholic liquor by the minor was not under the direction of the

 

state police, the commission, or the local police agency and was

 

not part of the undercover operation.

 

     (13) The state police, the commission, or a local police

 

agency shall not recruit or attempt to recruit a minor for

 

participation in an undercover operation at the scene of a

 

violation of subsection (1), section 801(2), or section 701(1), or

 

section 801(2).

 

     (14) In a criminal prosecution for the violation of subsection

 

(1) concerning a minor having any bodily alcohol content, it is an

 

affirmative defense that the minor consumed the alcoholic liquor in

 

a venue or location where that consumption is legal.

 

     (15) As used in this section, "any bodily alcohol content"

 

means either of the following:

 

     (a) An alcohol content of 0.02 grams or more per 100

 

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

 

milliliters of urine.

 

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

 

from the consumption of alcoholic liquor, other than consumption of

 

alcoholic liquor as a part of a generally recognized religious

 

service or ceremony.