HOUSE BILL No. 5275 October 14, 1997, Introduced by Reps. Goschka, Green, McBryde, Scranton, Willard, Bodem, London, Oxender, Voorhees, Raczkowski and Perricone and referred to the Committee on Judiciary. A bill to amend 1949 PA 300, entitled "Michigan vehicle code," by amending sections 625a and 625c (MCL 257.625a and 257.625c), section 625a as amended by 1996 PA 491 and section 625c as amended by 1994 PA 450. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 625a. (1) A peace officer may arrest a person without 2 a warrant under either of the following circumstances: 3 (a) The peace officer has reasonable cause to believe the 4 person was, at the time of an accident in this state, the opera- 5 tor of a vehicle involved in the accident and was operating the 6 vehicle in violation of section 625(1), (3), or (6) or a local 7 ordinance substantially corresponding to section 625(1), (3), or 8 (6). 04154'97 TJS 2 1 (b) The person is found in the driver's seat of a vehicle 2 parked or stopped on a highway or street within this state if any 3 part of the vehicle intrudes into the roadway and the peace offi- 4 cer has reasonable cause to believe the person was operating the 5 vehicle in violation of section 625(1), (3), or (6) or a local 6 ordinance substantially corresponding to section 625(1), (3), or 7 (6). 8 (2) A peace officer who has reasonable cause to believe that 9 a person was operating a vehicle upon a public highway or other 10 place open to the public or generally accessible to motor vehi- 11 cles, including an area designated for the parking of vehicles, 12 within this state and that the person by the consumption of 13 intoxicating liquor may have affected his or her ability to oper- 14 ate a vehicle, or reasonable cause to believe that a person was 15 operating a commercial motor vehicle within the state while the 16 person's blood, breath, or urine contained any measurable amount 17 of alcohol or while the person had any detectable presence of 18 intoxicating liquor, or reasonable cause to believe that a person 19 who is less than 21 years of age was operating a vehicle upon a 20 public highway or other place open to the public or generally 21 accessible to motor vehicles, including an area designated for 22 the parking of vehicles, within this state while the person had 23 any bodily alcohol content as that term is defined in section 24 625(6), may require the person to submit to a preliminary chemi- 25 cal breath analysis. A PEACE OFFICER WHO HAS REASONABLE CAUSE TO 26 BELIEVE THAT A PERSON WAS OPERATING A VEHICLE UPON A PUBLIC 27 HIGHWAY OR OTHER PLACE OPEN TO THE PUBLIC OR GENERALLY ACCESSIBLE 04154'97 3 1 TO MOTOR VEHICLES, INCLUDING AN AREA DESIGNATED FOR THE PARKING 2 OF VEHICLES, WITHIN THIS STATE AND THAT THE PERSON WAS THE DRIVER 3 OF A VEHICLE INVOLVED IN AN ACCIDENT IN WHICH ANOTHER PERSON WAS 4 KILLED SHALL REQUIRE THE PERSON TO SUBMIT TO A PRELIMINARY CHEMI- 5 CAL BREATH ANALYSIS. The following provisions apply with respect 6 to a preliminary chemical breath analysis administered pursuant 7 to this subsection: 8 (a) A peace officer may arrest a person based in whole or in 9 part upon the results of a preliminary chemical breath analysis. 10 (b) The results of a preliminary chemical breath analysis 11 are admissible in a criminal prosecution for a crime enumerated 12 in section 625c(1) or in an administrative hearing for 1 or more 13 of the following purposes: 14 (i) To assist the court or hearing officer in determining a 15 challenge to the validity of an arrest. This subparagraph does 16 not limit the introduction of other competent evidence offered to 17 establish the validity of an arrest. 18 (ii) As evidence of the defendant's breath alcohol content, 19 if offered by the defendant. 20 (iii) As evidence of the defendant's breath alcohol content, 21 if offered by the prosecution to rebut testimony or other evi- 22 dence, including but not limited to testimony elicited on 23 cross-examination of a prosecution witness, that is offered or 24 elicited to prove that the defendant's breath alcohol content was 25 lower at the time of the charged offense than when a chemical 26 test was administered pursuant to subsection (6). 04154'97 4 1 (c) A person who submits to a preliminary chemical breath 2 analysis remains subject to the requirements of sections 625c, 3 625d, 625e, and 625f for purposes of chemical tests described in 4 those sections. 5 (d) Except as provided in subsection (5), a person who 6 refuses to submit to a preliminary chemical breath analysis upon 7 a lawful request by a peace officer is responsible for a civil 8 infraction. 9 (3) A peace officer shall use the results of a preliminary 10 chemical breath analysis conducted pursuant to this section to 11 determine whether to order a person out-of-service under 12 section 319d. A peace officer shall order out-of-service as 13 required under section 319d a person who was operating a commer- 14 cial motor vehicle and who refuses to submit to a preliminary 15 chemical breath analysis as provided in this section. This sec- 16 tion does not limit use of other competent evidence by the peace 17 officer to determine whether to order a person out-of-service 18 under section 319d. 19 (4) A person who was operating a commercial motor vehicle 20 and who is requested to submit to a preliminary chemical breath 21 analysis under this section shall be advised that refusing a 22 peace officer's request to take a test described in this section 23 is a misdemeanor punishable by imprisonment for not more than 90 24 days or a fine of not more than $100.00, or both, and will result 25 in the issuance of a 24-hour out-of-service order. 26 (5) A person who was operating a commercial motor vehicle 27 and who refuses to submit to a preliminary chemical breath 04154'97 5 1 analysis upon a peace officer's lawful request is guilty of a 2 misdemeanor punishable by imprisonment for not more than 90 days 3 or a fine of not more than $100.00, or both. 4 (6) The following provisions apply with respect to chemical 5 tests and analysis of a person's blood, urine, or breath, other 6 than preliminary chemical breath analysis: 7 (a) The amount of alcohol or presence of a controlled sub- 8 stance or both in a driver's blood or urine or the amount of 9 alcohol in a person's breath at the time alleged as shown by 10 chemical analysis of the person's blood, urine, or breath is 11 admissible into evidence in any civil or criminal proceeding. 12 (b) A person arrested for a crime described in 13 section 625c(1) shall be advised of all of the following: 14 (i) If he or she takes a chemical test of his or her blood, 15 urine, or breath administered at the request of a peace officer, 16 he or she has the right to demand that a person of his or her own 17 choosing administer 1 of the chemical tests. 18 (ii) The results of the test are admissible in a judicial 19 proceeding as provided under this act and will be considered with 20 other competent evidence in determining the defendant's innocence 21 or guilt. 22 (iii) He or she is responsible for obtaining a chemical 23 analysis of a test sample obtained pursuant to his or her own 24 request. 25 (iv) If he or she refuses the request of a peace officer to 26 take a test described in subparagraph (i), a test shall not be 04154'97 6 1 given without a court order, but the peace officer may seek to 2 obtain such a court order. 3 (v) Refusing a peace officer's request to take a test 4 described in subparagraph (i) will result in the suspension of 5 his or her operator's or chauffeur's license and vehicle group 6 designation or operating privilege and in the addition of 6 7 points to his or her driver record. 8 (c) A sample or specimen of urine or breath shall be taken 9 and collected in a reasonable manner. Only a licensed physician, 10 or an individual operating under the delegation of a licensed 11 physician under section 16215 of the public health code,Act12No. 368 of the Public Acts of 1978, being section 333.16215 of13the Michigan Compiled Laws1978 PA 368, MCL 333.16215, qualified 14 to withdraw blood and acting in a medical environment, may with- 15 draw blood at a peace officer's request to determine the amount 16 of alcohol or presence of a controlled substance or both in the 17 person's blood, as provided in this subsection. Liability for a 18 crime or civil damages predicated on the act of withdrawing or 19 analyzing blood and related procedures does not attach to a 20 licensed physician or individual operating under the delegation 21 of a licensed physician who withdraws or analyzes blood or 22 assists in the withdrawal or analysis in accordance with this act 23 unless the withdrawal or analysis is performed in a negligent 24 manner. 25 (d) A chemical test described in this subsection shall be 26 administered at the request of a peace officer having reasonable 27 grounds to believe the person has committed a crime described in 04154'97 7 1 section 625c(1). A person who takes a chemical test administered 2 at a peace officer's request as provided in this section shall be 3 given a reasonable opportunity to have a person of his or her own 4 choosing administer 1 of the chemical tests described in this 5 subsection within a reasonable time after his or her detention. 6 The test results are admissible and shall be considered with 7 other competent evidence in determining the defendant's innocence 8 or guilt. If the person charged is administered a chemical test 9 by a person of his or her own choosing, the person charged is 10 responsible for obtaining a chemical analysis of the test 11 sample. 12 (e) If, after an accident, the driver of a vehicle involved 13 in the accident is transported to a medical facility and a sample 14 of the driver's blood is withdrawn at that time for medical 15 treatment, the results of a chemical analysis of that sample are 16 admissible in any civil or criminal proceeding to show the amount 17 of alcohol or presence of a controlled substance or both in the 18 person's blood at the time alleged, regardless of whether the 19 person had been offered or had refused a chemical test. The med- 20 ical facility or person performing the chemical analysis shall 21 disclose the results of the analysis to THE REQUESTING LAW 22 ENFORCEMENT AGENCY AND TO a prosecuting attorney who requests the 23 results for use in a criminal prosecution as provided in this 24 subdivision. A LAW ENFORCEMENT AGENCY THAT REQUESTS AND OBTAINS 25 CHEMICAL ANALYSIS RESULTS UNDER THIS SUBSECTION SHALL IMMEDIATELY 26 NOTIFY THE SECRETARY OF STATE OF ANY RESULT THAT REVEALS 0.10 27 GRAMS OR MORE OF ALCOHOL PER 100 MILLILITERS OF THE DEFENDANT'S 04154'97 8 1 BLOOD, PER 210 LITERS OF THE BREATH, OR PER 67 MILLILITERS OF THE 2 PERSON'S URINE. A medical facility or person disclosing informa- 3 tion in compliance with this subsection is not civilly or crimi- 4 nally liable for making the disclosure. 5 (f) If, after an accident, the driver of a vehicle involved 6 in the accident is deceased, a sample of the decedent's blood 7 shall be withdrawn in a manner directed by the medical examiner 8 to determine the amount of alcohol or the presence of a con- 9 trolled substance, or both, in the decedent's blood. The medical 10 examiner shall give the results of the chemical analysis of the 11 sample to the law enforcement agency investigating the accident 12 and that agency shall forward the results to the department of 13 state police. 14 (g) The department of state police shall promulgate uniform 15 rules pursuant to the administrative procedures act of 1969,Act16No. 306 of the Public Acts of 1969, being sections 24.201 to1724.328 of the Michigan Compiled Laws1969 PA 306, MCL 24.201 TO 18 24.328, for the administration of chemical tests for the purposes 19 of this section. An instrument used for a preliminary chemical 20 breath analysis may be used for a chemical test described in this 21 subsection if approved under rules promulgated by the department 22 of state police. 23 (7) The provisions of subsection (6) relating to chemical 24 testing do not limit the introduction of any other competent evi- 25 dence bearing upon the question of whether a person was impaired 26 by, or under the influence of, intoxicating liquor or a 27 controlled substance, or a combination of intoxicating liquor and 04154'97 9 1 a controlled substance, or whether the person had an alcohol 2 content of 0.10 grams or more per 100 milliliters of blood, per 3 210 liters of breath, or per 67 milliliters of urine, or if the 4 person is less than 21 years of age, whether the person had any 5 bodily alcohol content within his or her body. As used in this 6 section, "any bodily alcohol content" means either of the 7 following: 8 (a) An alcohol content of not less than 0.02 grams or more 9 than 0.07 grams per 100 milliliters of blood, per 210 liters of 10 breath, or per 67 milliliters of urine. 11 (b) Any presence of alcohol within a person's body resulting 12 from the consumption of intoxicating liquor, other than consump- 13 tion of intoxicating liquor as a part of a generally recognized 14 religious service or ceremony. 15 (8) If a chemical test described in subsection (6) is admin- 16 istered, the test results shall be made available to the person 17 charged or the person's attorney upon written request to the 18 prosecution, with a copy of the request filed with the court. 19 The prosecution shall furnish the results at least 2 days before 20 the day of the trial. The prosecution shall offer the test 21 results as evidence in that trial. Failure to fully comply with 22 the request bars the admission of the results into evidence by 23 the prosecution. 24 (9) Except in a prosecution relating solely to a violation 25 of section 625(1)(b) or (6), the amount of alcohol in the 26 driver's blood, breath, or urine at the time alleged as shown by 04154'97 10 1 chemical analysis of the person's blood, breath, or urine gives 2 rise to the following presumptions: 3 (a) If there were at the time 0.07 grams or less of alcohol 4 per 100 milliliters of the defendant's blood, per 210 liters of 5 the defendant's breath, or per 67 milliliters of the defendant's 6 urine, it is presumed that the defendant's ability to operate a 7 motor vehicle was not impaired due to the consumption of intoxi- 8 cating liquor and that the defendant was not under the influence 9 of intoxicating liquor. 10 (b) If there were at the time more than 0.07 grams but less 11 than 0.10 grams of alcohol per 100 milliliters of the defendant's 12 blood, per 210 liters of the defendant's breath, or per 67 milli- 13 liters of the defendant's urine, it is presumed that the 14 defendant's ability to operate a vehicle was impaired within the 15 provisions of section 625(3) due to the consumption of intoxicat- 16 ing liquor. 17 (c) If there were at the time 0.10 grams or more of alcohol 18 per 100 milliliters of the defendant's blood, per 210 liters of 19 the breath, or per 67 milliliters of the defendant's urine, it is 20 presumed that the defendant was under the influence of intoxicat- 21 ing liquor. 22 (10) A person's refusal to submit to a chemical test as pro- 23 vided in subsection (6) is admissible in a criminal prosecution 24 for a crime described in section 625c(1) only to show that a test 25 was offered to the defendant, but not as evidence in determining 26 the defendant's innocence or guilt. The jury shall be instructed 27 accordingly. 04154'97 11 1 Sec. 625c. (1) A person who operates a vehicle upon a 2 public highway or other place open to the general public or gen- 3 erally accessible to motor vehicles, including an area designated 4 for the parking of vehicles, within this state is considered to 5 have given consent to chemical tests of his or her blood, breath, 6 or urine for the purpose of determining the amount of alcohol or 7 presence of a controlled substance or both in his or her blood or 8 urine or the amount of alcohol in his or her breath in all of the 9 following circumstances: 10 (a) If the person is arrested for a violation of section 11 625(1), (3), (4), (5), or (6), section 625a(5), or section 625m, 12 or a local ordinance substantially corresponding to section 13 625(1), (3), or (6), section 625a(5), or section 625m. 14 (b) If the person is arrested for felonious driving, negli- 15 gent homicide, manslaughter, or murder resulting from the opera- 16 tion of a motor vehicle, and the peace officer had reasonable 17 grounds to believe the person was operating the vehicle while 18 impaired by or under the influence of intoxicating liquor or a 19 controlled substance or a combination of intoxicating liquor and 20 a controlled substance, or while having an alcohol content of 21 0.10 grams or more per 100 milliliters of blood, per 210 liters 22 of breath, or per 67 milliliters of urine, or if the person is 23 less than 21 years of age while having any bodily alcohol 24 content. As used in this subdivision, "any bodily alcohol 25 content" means either of the following: 04154'97 12 1 (i) An alcohol content of not less than 0.02 grams or more 2 than 0.07 grams per 100 milliliters of blood, per 210 liters of 3 breath, or per 67 milliliters of urine. 4 (ii) Any presence of alcohol within a person's body result- 5 ing from the consumption of intoxicating liquor, other than con- 6 sumption of intoxicating liquor as part of a generally recognized 7 religious service or ceremony. 8 (C) IF THE PERSON IS THE DRIVER OF A VEHICLE INVOLVED IN AN 9 ACCIDENT IN WHICH ANOTHER PERSON IS KILLED. 10 (2) A person who is afflicted with hemophilia, diabetes, or 11 a condition requiring the use of an anticoagulant under the 12 direction of a physician is not considered to have given consent 13 to the withdrawal of blood. 14 (3) The tests shall be administered as provided in section 15 625a(6). 04154'97 Final page. TJS