Bill Text: MI SB0705 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Criminal procedure: evidence; use of drug recognition experts by a defendant in certain judicial proceedings; allow. Amends secs. 625a & 625t of 1949 PA 300 (MCL 257.625a & 257.625t).
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2020-01-08 - Referred To Committee On Judiciary And Public Safety [SB0705 Detail]
Download: Michigan-2019-SB0705-Introduced.html
SENATE BILL NO. 705
January 08, 2020, Introduced by Senator LUCIDO
and referred to the Committee on Judiciary and Public Safety.
A bill to amend 1949 PA 300, entitled
"Michigan vehicle code,"
by amending sections 625a and 625t (MCL 257.625a and 257.625t), section 625a as amended by 2017 PA 153 and section 625t as added by 2016 PA 243.
the people of the state of michigan enact:
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 analysis. The following provisions
apply 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 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 must 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 to chemical tests and
analysis of a person's blood, urine, or breath, other than a preliminary
chemical breath analysis:
(a) The amount of alcohol or presence of a controlled
substance 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) must 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 must 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 must 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 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 must 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 must 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 must 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 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 must be withdrawn
in a manner directed by the medical examiner to determine the amount of alcohol
or the presence of a controlled substance or 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 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, 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, 2021, 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, 2021, 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 must 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 must be instructed accordingly.
(10) If at the time a person is arrested for a crime
described in section 625c(1) he or she is subjected to an analysis performed by
a certified drug recognition expert, the person must be advised of the
following:
(a) That he or she has the right to demand that a certified
drug recognition expert of his or her own choosing administer the same kind of
analysis.
(b) The results of the analysis 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.
(c) He or she is responsible for obtaining an analysis by a
certified drug recognition expert at his or her own request.
(11) (10) As used in this section:
(a) "Certified drug recognition expert" means that
term as defined in section 625t.
(b) (a) "Controlled substance" means that
term as defined in section 7104 of the public health code, 1978 PA 368, MCL
333.7104.
(c) (b) "Intoxicating substance" means that
term as defined in section 625.
Sec. 625t. (1) The
department of state police may establish a pilot program in 5 counties in this
state for roadside drug testing to determine whether an individual is operating
a vehicle while under the influence of a controlled substance in violation of
section 625.
(2) A pilot program established under this section shall must be for a period of
1 calendar year. The funding of a pilot program established under this section
is subject to appropriation.
(3) Except as provided in subsection (8), the department of
state police shall select 5 counties in which to implement a pilot program
established under this section.
(4) A county is eligible to participate in the pilot program
if the county has a law enforcement agency within its boundary, including, but
not limited to, a state police post, a sheriff's department, or a municipal
police department, that employs not fewer than 1 law enforcement officer who is
a certified drug recognition expert.
(5) The department of state police shall develop a written
policy for the implementation of the pilot program and the administration of
roadside drug testing.
(6) The department of state police may promulgate rules under
the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328,
to implement a pilot program established under this section.
(7) Not more than 90 days after the conclusion of a pilot
program established under this section, the department of state police shall
submit a report to the legislative committees of the senate and house of
representatives with primary responsibility for judicial and criminal justice
issues. The report shall must cover all of the
following:
(a) How pilot program participant counties were selected.
(b) The different types of law enforcement agencies in the
pilot program participant counties that engaged in roadside drug testing.
(c) Relevant statistical data, including, but not limited to,
the following:
(i) The number of
traffic stops resulting in an arrest for operating under the influence of a controlled
substance in violation of section 625 as a result of roadside drug testing by a
certified drug recognition expert.
(ii) The number and
type of convictions resulting from an arrest made based on the result of a
roadside drug test by a certified drug recognition expert.
(8) Upon the conclusion of a pilot program established under
this section, the department of state police may, subject to appropriation,
establish additional pilot programs in eligible counties not included among the
5 counties initially selected under subsection (3). The duration of a pilot
program established under this subsection shall be is for a period of 1 year.
(9) As used in this section and section 625a:
(a) "Certified drug recognition expert" means a law
enforcement officer or other
individual trained to recognize impairment in a driver under the
influence of a controlled substance rather than, or in addition to, alcohol.
(b) "Controlled substance" means that term as
defined in section 7104 of the public health code, 1978 PA 368, MCL 333.7104.
