HB-4289, As Passed Senate, December 10, 2008

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4289

     A bill to amend 1949 PA 300, entitled

"Michigan vehicle code,"

by amending sections 625k, 625l, 904, and 904d (MCL 257.625k,

257.625l, 257.904, and 257.904d), sections 625k, 625l, and 904d as

amended by 2003 PA 61 and section 904 as amended by 2004 PA 362.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 625k. (1) The department shall approve an ignition

interlock device certified by a department-approved laboratory as

complying with the national highway traffic safety administration's

model specifications for breath alcohol ignition interlock devices

(BAIID), 57 F.R. p. 11772, April 7, 1992 57 FR 11772 - 11787 (April

7, 1992). Subject to subsection (5), the department shall publish

provide a list of all manufacturers of approved certified devices

to each person who is issued a restricted license that permits the

person to drive a vehicle only if it is equipped with an ignition

interlock device. The department shall rotate the order of the

providers with each list provided under this subsection.

     (2) The secretary of state shall promulgate rules to implement

this section in compliance with the administrative procedures act

of 1969, 1969 PA 306, MCL 24.201 to 24.328.

     (3) The manufacturer of an ignition interlock device shall

bear the cost of that device's certification.

     (4) A laboratory that certifies an ignition interlock device

as provided in this section shall immediately notify the department

of that certification.

     (5) The department shall not include the manufacturer of a

certified ignition interlock device on the list of manufacturers

published under subsection (1) unless the manufacturer complies

with all of the following:

     (a) The manufacturer has filed copies of all of the following

with the department:

     (i) A bond executed as provided in section 625o or a letter of

credit.

     (ii) Evidence of insurance as described in section 625l.

     (iii) An affidavit that the ignition interlock device is meets

all of the following conditions:

     (A) An alcohol concentration measuring device that prevents a

motor vehicle from being started at any time without first

determining through a deep lung sample the operator's breath

alcohol level.

     (B) Calibrated to render the motor vehicle incapable of being

started if the device detects an alcohol content of 0.025 grams or

more per 210 liters of breath of the person who offers a breath

sample.

     (A) Meets the definition in section 20d.

(B) (C) Set Is set to periodically take samples while the

vehicle is in operation and to do 1 or both of the following :

     (I) Emit a warning signal when the device detects an alcohol

content of 0.025 grams or more per 210 liters of breath in the

person who offers a breath sample . or if a breath sample is not

given within the allotted time:

     (I) Emit a visible or audible warning signal.

     (II) If it detects an alcohol content of 0.04 grams or more

per 210 liters of breath of the person who offers the breath

sample, render Render the vehicle inoperable as soon as the vehicle

is no longer being operated, requiring the operator to provide a

breath sample containing a breath alcohol level of less than 0.025

grams per 210 liters of breath before the vehicle may be restarted.

     (b) The manufacturer of ignition interlock devices provides

Provides a list of installers who are authorized to install and

service its ignition interlock devices to the secretary of state.

     (c) Agrees to have service locations within 50 miles of any

location within this state.

     (d) Agrees to provide an ignition interlock device without

cost to a person whose gross income for the immediately preceding

tax year based on his or her state income tax return was less than

150% of the official poverty line for that same tax year

established in the poverty guidelines issued by the secretary of

health and human services under authority of section 673(2) of the

community services block grant act, subtitle B of title VI of the

omnibus budget reconciliation act of 1981, Public Law 97-35, 42

U.S.C. 9902 42 USC 9902. A person in whose vehicle an ignition

interlock device is installed without cost under this subdivision

shall pay a maintenance fee to the installer of not more than $1.00

$2.00 per day.

     (e) Agrees to comply with the reporting requirements of the

secretary of state.

(f) (e) Agrees to periodically monitor installed ignition

interlock devices and if monitoring indicates that the device has

been circumvented, tampered with, or that a person with a breath

alcohol level of 0.025 or more grams per 210 liters of breath has

attempted to operate the motor vehicle, or both, to communicate

that fact all of the relevant information concerning these facts to

the secretary of state or to the court, or both, as appropriate.

     (6) A manufacturer that has made a filing under subsection (5)

shall immediately notify the department if the device no longer

meets the requirements of subsection (5).

     (7) A person who knowingly provides false information to the

department under subsection (4) or (5) is guilty of a felony

punishable by imprisonment for not less than 5 years or more than

10 years or a fine of not less than $5,000.00 or more than

$10,000.00, or both, together with costs of the prosecution.

     (8) A person who negligently provides false information to the

department under subsection (4) or (5) is guilty of a misdemeanor

punishable by imprisonment for not more than 1 year or a fine of

not more than $1,000.00, or both, together with costs of the

prosecution.

     (9) A person who knowingly fails to comply with subsection (6)

is guilty of a felony punishable by imprisonment for not less than

5 years or more than 10 years or a fine of not less than $5,000.00

or more than $10,000.00, or both, together with costs of the

prosecution.

     (10) A person who negligently fails to comply with subsection

(6) is guilty of a misdemeanor punishable by imprisonment for not

more than 1 year or a fine of not more than $1,000.00, or both,

together with costs of the prosecution.

     Sec. 625l. (1) The manufacturer of an ignition interlock device

shall design a warning label, and the person who has an ignition

interlock device shall promptly affix that label to each ignition

interlock device upon installation. The label shall contain a

warning that any person tampering with, circumventing, or otherwise

misusing the device is guilty of a misdemeanor punishable as

provided by law.

     (2) A person who is only permitted to operate a motor vehicle

equipped with an ignition interlock device shall not operate a

motor vehicle on which an ignition interlock device is not properly

installed.

(3) (2) A person who has an ignition interlock device

installed and whose driving privilege is restricted shall not

request or solicit any other person to blow into an ignition

interlock device or to start a vehicle equipped with the device for

the purpose of providing the person whose driving privilege is

restricted with an operable vehicle.

(4) (3) A person shall not blow into an ignition interlock

device or start a motor vehicle equipped with the device for the

purpose of providing an operable vehicle to a person who has an

interlock device installed and whose driving privilege is

restricted.

(5) (4) A person shall not tamper with or circumvent the

operation of an ignition interlock device.

(6) (5) A person who violates subsection (2), (3), or (4), or

(5) is guilty of a misdemeanor punishable by imprisonment for not

more than 6 months or a fine of not more than $5,000.00, or both.

     (6) As used in this act, "ignition interlock device" or

"device" means an alcohol concentration measuring device that

prevents a motor vehicle from being started at any time without

first determining through a deep lung sample the operator's breath

alcohol level. The system shall be calibrated so that the motor

vehicle may not be started if the breath alcohol level of the

operator, as measured by the test, reaches a level of 0.025 grams

per 210 liters of breath.

     (7) If a law enforcement officer detains the operator of a

motor vehicle for violating a law of this state or a local

ordinance and the operator is a person required to only operate a

motor vehicle with an ignition interlock device properly installed,

but no ignition interlock device is properly installed on the motor

vehicle, the law enforcement officer shall impound the motor

vehicle. If a motor vehicle impounded under this subsection is

individually or jointly owned by the operator, the law enforcement

officer shall do all of the following:

     (a) Immediately confiscate the motor vehicle registration

plate and destroy it.

     (b) Issue a temporary registration plate for the vehicle in

the same manner prescribed by the secretary of state for temporary

registration plates issued under section 226a or 226b.

(c) Place the temporary registration plate issued under

subdivision (b) on the motor vehicle in the manner prescribed by

the secretary of state.

     (d) Notify the secretary of state through the law enforcement

information network in a form prescribed by the secretary of state

that the registration plate was destroyed and a temporary

registration plate was issued to the motor vehicle.

     (8) A temporary registration plate issued under this section

is valid until the charges for violating subsection (2) are

dismissed, the person pleads guilty or no contest to the charge, or

the person is found guilty to or is acquitted of the charge.

     (9) If the motor vehicle impounded under this section is not

owned individually or jointly by the operator, the law enforcement

officer shall impound the motor vehicle by contacting a local

towing agency. The motor vehicle shall only be returned to the

registered owner.

     (10) The owner of a motor vehicle impounded under this section

is liable for the expenses incurred in the removal and storage of

the motor vehicle whether or not it is returned to him or her. The

motor vehicle shall be returned to the owner only if the owner pays

the expenses of removal and storage. If redemption is not made or

the vehicle is not returned as described under this subsection, it

shall be considered an abandoned vehicle and disposed of under

section 252a.

     (11) (7) The state, or the department, its officers,

employees, or agents, or a court, its officers, employees, or

agents are not liable in any claim or action that may arise,

directly or indirectly, out of any act or omission by a

manufacturer, installer, or servicing agent of an ignition

interlock device that results in damage to persons or property.

(12) (8) A person shall not sell, lease, install, or monitor

in a vehicle in this state an ignition interlock device unless the

ignition interlock device manufacturer and provider carries

liability insurance covering product liability, including, but not

limited to, insurance to indemnify the department and any person

injured as a result of a design defect or the calibration or

removal of the ignition interlock device or a misrepresentation

about the ignition interlock device. The insurance required by this

subsection shall be in an amount of not less than $1,000,000.00 per

incident.

(13) (9) The provider of insurance described in this section

may cancel the insurance upon 30 days' written notice to the

department and is not liable for a claim arising from an event that

occurs after the effective date of a cancellation made in

compliance with this section.

(14) (10) An ignition interlock device shall be serviced

according to manufacturer's standards. Service shall include, but

not be limited to, physical inspection of the device and vehicle

for tampering, calibration of the device, and monitoring of the

data contained within the device's memory. Only authorized

employees of the manufacturer or the department, or other persons

approved by the court, may observe the installation of a device.

Reasonable security measures must shall be taken to prevent the

customer from observing the installation of a device or obtaining

access to installation materials.

     Sec. 904. (1) A person whose operator's or chauffeur's license

or registration certificate has been suspended or revoked and who

has been notified as provided in section 212 of that suspension or

revocation, whose application for license has been denied, or who

has never applied for a license, shall not operate a motor vehicle

upon a highway or other place open to the general public or

generally accessible to motor vehicles, including an area

designated for the parking of motor vehicles, within this state.

     (2) A person shall not knowingly permit a motor vehicle owned

by the person to be operated upon a 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 by a person whose license or registration certificate is

suspended or revoked, whose application for license has been

denied, or who has never applied for a license, except as permitted

under this act.

     (3) Except as otherwise provided in this section, a person who

violates subsection (1) or (2) is guilty of a misdemeanor

punishable as follows:

     (a) For a first violation, by imprisonment for not more than

93 days or a fine of not more than $500.00, or both. Unless the

vehicle was stolen or used with the permission of a person who did

not knowingly permit an unlicensed driver to operate the vehicle,

the registration plates of the vehicle shall be canceled by the

secretary of state upon notification by a peace officer.

     (b) For a violation that occurs after a prior conviction, by

imprisonment for not more than 1 year or a fine of not more than

$1,000.00, or both. Unless the vehicle was stolen, the registration

plates of the vehicle shall be canceled by the secretary of state

upon notification by a peace officer.

     (4) A person who operates a motor vehicle in violation of

subsection (1) and who, by operation of that motor vehicle, causes

the death of another person is guilty of a felony punishable by

imprisonment for not more than 15 years or a fine of not less than

$2,500.00 or more than $10,000.00, or both. This subsection does

not apply to a person whose operator's or chauffeur's license was

suspended because that person failed to answer a citation or comply

with an order or judgment pursuant to section 321a.

     (5) A person who operates a motor vehicle in violation of

subsection (1) and who, by operation of that motor vehicle, causes

the serious impairment of a body function of another person is

guilty of a felony punishable by imprisonment for not more than 5

years or a fine of not less than $1,000.00 or more than $5,000.00,

or both. This subsection does not apply to a person whose

operator's or chauffeur's license was suspended because that person

failed to answer a citation or comply with an order or judgment

pursuant to section 321a. As used in this subsection and subsection

(7), "serious impairment of a body function" includes, but is not

limited to, 1 or more of the following:

     (a) Loss of a limb or loss of use of a limb.

     (b) Loss of a foot, hand, finger, or thumb or loss of use of a

foot, hand, finger, or thumb.

     (c) Loss of an eye or ear or loss of use of an eye or ear.

     (d) Loss or substantial impairment of a bodily function.

     (e) Serious visible disfigurement.

     (f) A comatose state that lasts for more than 3 days.

     (g) Measurable brain or mental impairment.

     (h) A skull fracture or other serious bone fracture.

     (i) Subdural hemorrhage or subdural hematoma.

     (6) In addition to being subject to any other penalty provided

for in this act, if a person is convicted under subsection (4) or

(5), the court may impose the sanction permitted under section

625n. If the vehicle is not ordered forfeited under section 625n,

the court shall order vehicle immobilization under section 904d in

the judgment of sentence.

     (7) A person shall not knowingly permit a motor vehicle owned

by the person to be operated upon a 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, by a person whose license or registration certificate

is suspended or revoked, whose application for license has been

denied, or who has never been licensed except as permitted by this

act. If a person permitted to operate a motor vehicle in violation

of this subsection causes the serious impairment of a body function

of another person by operation of that motor vehicle, the person

knowingly permitting the operation of that motor vehicle is guilty

of a felony punishable by imprisonment for not more than 2 years,

or a fine of not less than $1,000.00 or more than $5,000.00, or

both. If a person permitted to operate a motor vehicle in violation

of this subsection causes the death of another person by operation

of that motor vehicle, the person knowingly permitting the

operation of that motor vehicle is guilty of a felony punishable by

imprisonment for not more than 5 years, or a fine of not less than

$1,000.00 or more than $5,000.00, or both.

     (8) If the prosecuting attorney intends to seek an enhanced

sentence under this section based upon the defendant having 1 or

more prior convictions, the prosecuting attorney shall include on

the complaint and information, or an amended complaint and

information, filed in district court, circuit court, municipal

court, or family division of circuit court, a statement listing the

defendant's prior convictions.

     (9) A prior conviction under this section shall be established

at or before sentencing by 1 or more of the following:

     (a) A copy of a judgment of conviction.

(b) (a) An abstract of conviction.

     (c) A transcript of a prior trial, plea, or sentencing.

     (d) A copy of a court register of action.

(e) (b) A copy of the defendant's driving record.

     (f) Information contained in a presentence report.

(g) (c) An admission by the defendant.

     (10) Upon receiving a record of a person's conviction or civil

infraction determination for the unlawful operation of a motor

vehicle or a moving violation reportable under section 732 while

the person's operator's or chauffeur's license is suspended or

revoked, the secretary of state immediately shall impose an

additional like period of suspension or revocation. This subsection

applies only if the violation occurs during a suspension of

definite length or if the violation occurs before the person is

approved for a license following a revocation.

     (11) Upon receiving a record of a person's conviction or civil

infraction determination for the unlawful operation of a motor

vehicle or a moving violation reportable under section 732 while

the person's operator's or chauffeur's license is indefinitely

suspended or whose application for a license has been denied, the

secretary of state immediately shall impose a 30-day period of

suspension or denial.

     (12) Upon receiving a record of the conviction, bond

forfeiture, or a civil infraction determination of a person for

unlawful operation of a motor vehicle requiring a vehicle group

designation while the designation is suspended or revoked pursuant

to under section 319b, or while the person is disqualified from

operating a commercial motor vehicle by the United States secretary

of transportation or under 49 USC 31301 to 31317, the secretary of

state immediately shall impose an additional like period of

suspension or revocation. This subsection applies only if the

violation occurs during a suspension of definite length or if the

violation occurs before the person is approved for a license

following a revocation.

     (13) If the secretary of state receives records of more than 1

conviction or civil infraction determination resulting from the

same incident, all of the convictions or civil infraction

determinations shall be treated as a single violation for purposes

of imposing an additional period of suspension or revocation under

subsection (10), (11), or (12).

     (14) Before a person is arraigned before a district court

magistrate or judge on a charge of violating this section, the

arresting officer shall obtain the person's driving record from the

secretary of state and shall furnish the record to the court. The

driving record of the person may be obtained from the secretary of

state's computer information network.

     (15) This section does not apply to a person who operates a

vehicle solely for the purpose of protecting human life or property

if the life or property is endangered and summoning prompt aid is

essential.

     (16) A person whose vehicle group designation is suspended or

revoked and who has been notified as provided in section 212 of

that suspension or revocation, or whose application for a vehicle

group designation has been denied as provided in this act, or who

has never applied for a vehicle group designation and who operates

a commercial motor vehicle within this state, except as permitted

under this act, while any of those conditions exist is guilty of a

misdemeanor punishable, except as otherwise provided in this

section, by imprisonment for not less than 3 days or more than 93

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

     (17) If a person has a second or subsequent suspension or

House Bill No. 4289 as amended December 10, 2008

revocation under this section within 7 years as indicated on the

person's Michigan driving record, the court shall proceed as

provided in section 904d.

     (18) Any period of suspension or revocation required under

subsection (10), (11), or (12) does not apply to a person who has

only 1 currently effective suspension or denial on his or her

Michigan driving record under section 321a and was convicted of or

received a civil infraction determination for a violation that

occurred during that suspension or denial. This subsection may only

be applied once during the person's lifetime.

     (19) For purposes of this section, a person who never applied

for a license includes a person who applied for a license, was

denied, and never applied again.

     Sec. 904d. (1) Vehicle immobilization applies as follows:

     (a) For a conviction under section 625(1), (3), (7), or (8) or

a local ordinance substantially corresponding to section 625(1) or

(3) with no prior convictions, the court may order vehicle

immobilization for not more than 180 days.

     (b) For a conviction under section 625(4) or (5) with no prior

convictions, the court shall order vehicle immobilization for not

more than 180 days.

     (c) For a conviction under section 625(1), (3), (4), (5), (7),

or (8) within 7 years after a prior conviction, or for a conviction

<<under>> section 625l(2), the court shall order vehicle immobilization

for

not less than 90 days or more than 180 days.

     (d) For a conviction under section 625(1), (3), (4), (5), (7),

or (8) within 10 years after 2 or more prior convictions, the court

shall order vehicle immobilization for not less than 1 year or more

than 3 years.

     (2) For a conviction or civil infraction determination

resulting from a violation that occurred during a period of

suspension, revocation, or denial, the following apply:

     (a) Except as provided in subdivision (b), for 1 prior

suspension, revocation, or denial under section 904(10), (11), or

(12) or former section 904(2) or (4) within the past 7 years, the

court may order vehicle immobilization for not more than 180 days.

     (b) Except as provided in subdivisions (c) and (d), if the

person is convicted under section 904(4) or (5), the court shall

order vehicle immobilization for not more than 180 days.

     (c) For any combination of 2 or 3 prior suspensions,

revocations, or denials under section 904(10), (11), or (12) or

former section 904(2) or (4) within the past 7 years, the court

shall order vehicle immobilization for not less than 90 days or

more than 180 days.

     (d) For any combination of 4 or more prior suspensions,

revocations, or denials under section 904(10), (11), or (12) or

former section 904(2) or (4) within the past 7 years, the court

shall order vehicle immobilization for not less than 1 year or more

than 3 years.

     (3) The defendant shall provide to the court the vehicle

identification number and registration plate number of the vehicle

involved in the violation.

     (4) The court may order vehicle immobilization under this

section under either of the following circumstances:

     (a) The defendant is the owner, co-owner, lessee, or co-lessee

of the vehicle operated during the violation.

     (b) The owner, co-owner, lessee, or co-lessee knowingly

permitted the vehicle to be operated in violation of section 625(2)

or section 904(2) regardless of whether a conviction resulted.

     (5) An Except as otherwise provided in subsection (11), an

order required to be issued under this section shall not be

suspended.

     (6) If a defendant is ordered imprisoned for the violation for

which immobilization is ordered, the period of immobilization shall

begin at the end of the period of imprisonment.

     (7) This section does not apply to any of the following:

     (a) A suspension, revocation, or denial based on a violation

of the support and parenting time enforcement act, 1982 PA 295, MCL

552.601 to 552.650.

     (b) A vehicle that is registered in another state or that is a

rental vehicle.

     (c) A vehicle owned by the federal government, this state, or

a local unit of government of this state.

     (d) A vehicle not subject to registration under section 216.

     (e) Any of the following:

     (i) A violation of chapter II.

     (ii) A violation of chapter V.

     (iii) A violation for failure to change address.

     (iv) A parking violation.

     (v) A bad check violation.

     (vi) An equipment violation.

     (vii) A pedestrian, passenger, or bicycle violation, other than

a violation of section 703(1) or (2) of the Michigan liquor control

code of 1998, 1998 PA 58, MCL 436.1703, or a local ordinance

substantially corresponding to section 703(1) or (2) of the

Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1703, or

section 624a or 624b or a local ordinance substantially

corresponding to section 624a or 624b.

     (viii) A violation of a local ordinance substantially

corresponding to a violation described in subparagraphs (i) to (vii).

     (8) As used in this section:

     (a) Subject to subsections (9) and (10), "prior conviction"

means a conviction for any of the following, whether under a law of

this state, a local ordinance substantially corresponding to a law

of this state, or a law of another state substantially

corresponding to a law of this state:

     (i) Except as otherwise provided in subsection (10), a

violation or attempted violation of any of the following:

     (A) Section 625, except a violation of section 625(2), or a

violation of any prior enactment of section 625 in which the

defendant operated a vehicle while under the influence of

intoxicating or alcoholic liquor or a controlled substance, or a

combination of intoxicating or alcoholic liquor and a controlled

substance, or while visibly impaired, or with an unlawful bodily

alcohol content.

     (B) Section 625m.

     (C) Former section 625b.

     (ii) Negligent homicide, manslaughter, or murder resulting from

House Bill No. 4289 as amended December 10, 2008

the operation of a vehicle or an attempt to commit any of those

crimes.

     (b) "Vehicle immobilization" means requiring the motor vehicle

involved in the violation immobilized in a manner provided in

section 904e.

     (9) If 2 or more convictions described in subsection (8)(a)

are convictions for violations arising out of the same incident,

only 1 conviction shall be used to determine whether the person has

a prior conviction.

     (10) Only 1 violation or attempted violation of section

625(6), a local ordinance substantially corresponding to section

625(6), or a law of another state substantially corresponding to

section 625(6) may be used as a prior conviction.

     (11) If the person obtains a restricted operator's <<or

chauffeur's>> license

from the secretary of state and an ignition interlock device is

properly installed in the vehicle, the court shall suspend the

immobilization order <<issued under subsection (1)(c) for a conviction

under section 625l(2)>>.

     (12) The court may reinstate vehicle immobilization <<issued under

subsection (1)(c) for a conviction under section 625l(2)>> if an

ignition interlock device is tampered with, circumvented, or

disabled, or if the person's restricted operator's <<or chauffeur's>>

license is

suspended or revoked.

     Enacting section 1. This amendatory act takes effect January

31, 2010.

     Enacting section 2. This amendatory act does not take effect

unless Senate Bill No. 1134 of the 94th Legislature is enacted into

law.