HOUSE BILL No. 6133 May 28, 2002, Introduced by Rep. Switalski and referred to the Committee on Criminal Justice. A bill to amend 1949 PA 300, entitled "Michigan vehicle code," by amending section 625a (MCL 257.625a), as amended by 1998 PA 351. 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 or a local ordinance substan- 7 tially corresponding to section 625. 8 (b) The person is found in the driver's seat of a vehicle 9 parked or stopped on a highway or street within this state if any 10 part of the vehicle intrudes into the roadway and the peace 07153'02 TLG 2 1 officer has reasonable cause to believe the person was operating 2 the vehicle in violation of section 625 or a local ordinance sub- 3 stantially corresponding to section 625. 4 (2) A peace officer who has reasonable cause to believe that 5 a person was operating a vehicle upon a public highway or other 6 place open to the public or generally accessible to motor vehi- 7 cles, including an area designated for the parking of vehicles, 8 within this state and that the person by the consumption of 9 intoxicating liquor may have affected his or her ability to oper- 10 ate a vehicle, or reasonable cause to believe that a person was 11 operating a commercial motor vehicle within the state while the 12 person's blood, breath, or urine contained any measurable amount 13 of alcohol or while the person had any detectable presence of 14 intoxicating liquor, or reasonable cause to believe that a person 15 who is less than 21 years of age was operating a vehicle upon a 16 public highway or other place open to the public or generally 17 accessible to motor vehicles, including an area designated for 18 the parking of vehicles, within this state while the person had 19 any bodily alcohol content as that term is defined in section 20 625(6), may require the person to submit to a preliminary chemi- 21 cal breath analysis. The following provisions apply with respect 22 to a preliminary chemical breath analysis administered under this 23 subsection: 24 (a) A peace officer may arrest a person based in whole or in 25 part upon the results of a preliminary chemical breath analysis. 26 (b) The results of a preliminary chemical breath analysis 27 are admissible in a criminal prosecution for a crime enumerated 07153'02 3 1 in section 625c(1) or in an administrative hearing for 1 or more 2 of the following purposes: 3 (i) To assist the court or hearing officer in determining a 4 challenge to the validity of an arrest. This subparagraph does 5 not limit the introduction of other competent evidence offered to 6 establish the validity of an arrest. 7 (ii) As evidence of the defendant's breath alcohol content, 8 if offered by the defendant to rebut testimony elicited on 9 cross-examination of a defense witness that the defendant's 10 breath alcohol content was higher at the time of the charged 11 offense than when a chemical test was administered under subsec- 12 tion (6). 13 (iii) As evidence of the defendant's breath alcohol content, 14 if offered by the prosecution to rebut testimony elicited on 15 cross-examination of a prosecution witness that the defendant's 16 breath alcohol content was lower at the time of the charged 17 offense than when a chemical test was administered under subsec- 18 tion (6). 19 (c) A person who submits to a preliminary chemical breath 20 analysis remains subject to the requirements of sections 625c, 21 625d, 625e, and 625f for purposes of chemical tests described in 22 those sections. 23 (d) Except as provided in subsection (5), a person who 24 refuses to submit to a preliminary chemical breath analysis upon 25 a lawful request by a peace officer is responsible for a civil 26 infraction. 07153'02 4 1 (3) A peace officer shall use the results of a preliminary 2 chemical breath analysis conducted pursuant to this section to 3 determine whether to order a person out-of-service under 4 section 319d. A peace officer shall order out-of-service as 5 required under section 319d a person who was operating a commer- 6 cial motor vehicle and who refuses to submit to a preliminary 7 chemical breath analysis as provided in this section. This sec- 8 tion does not limit use of other competent evidence by the peace 9 officer to determine whether to order a person out-of-service 10 under section 319d. 11 (4) A person who was operating a commercial motor vehicle 12 and who is requested to submit to a preliminary chemical breath 13 analysis under this section shall be advised that refusing a 14 peace officer's request to take a test described in this section 15 is a misdemeanor punishable by imprisonment for not more than 93 16 days or a fine of not more than $100.00, or both, and will result 17 in the issuance of a 24-hour out-of-service order. 18 (5) A person who was operating a commercial motor vehicle 19 and who refuses to submit to a preliminary chemical breath analy- 20 sis upon a peace officer's lawful request is guilty of a misde- 21 meanor punishable by imprisonment for not more than 93 days or a 22 fine of not more than $100.00, or both. 23 (6) The following provisions apply with respect to chemical 24 tests and analysis of a person's blood, urine, or breath, other 25 than preliminary chemical breath analysis: 26 (a) The amount of alcohol or presence of a controlled 27 substance or both in a driver's blood or urine or the amount of 07153'02 5 1 alcohol in a person's breath at the time alleged as shown by 2 chemical analysis of the person's blood, urine, or breath is 3 admissible into evidence in any civil or criminal proceeding. 4 (b) A person arrested for a crime described in 5 section 625c(1) shall be advised of all of the following: 6 (i) If he or she takes a chemical test of his or her blood, 7 urine, or breath administered at the request of a peace officer, 8 he or she has the right to demand that a person of his or her own 9 choosing administer 1 of the chemical tests. 10 (ii) The results of the test are admissible in a judicial 11 proceeding as provided under this act and will be considered with 12 other admissible evidence in determining the defendant's inno- 13 cence or guilt. 14 (iii) He or she is responsible for obtaining a chemical 15 analysis of a test sample obtained pursuant to his or her own 16 request. 17 (iv) If he or she refuses the request of a peace officer to 18 take a test described in subparagraph (i), a test shall not be 19 given without a court order, but the peace officer may seek to 20 obtain a court order. 21 (v) Refusing a peace officer's request to take a test 22 described in subparagraph (i) will result in the suspension of 23 his or her operator's or chauffeur's license and vehicle group 24 designation or operating privilege and in the addition of 6 25 points to his or her driver record. 26 (c) A sample or specimen of urine or breath shall be taken 27 and collected in a reasonable manner. Only a licensed physician, 07153'02 6 1 or an individual operating under the delegation of a licensed 2 physician under section 16215 of the public health code, 1978 3 PA 368, MCL 333.16215, qualified to withdraw blood and acting in 4 a medical environment, OR A NURSE LICENSED UNDER PART 172 OF THE 5 PUBLIC HEALTH CODE, 1978 PA 368, MCL 333.17201 TO 333.17437, AND 6 ACTING AT A POLICE FACILITY, may withdraw blood at a peace 7 officer's request to determine the amount of alcohol or presence 8 of a controlled substance or both in the person's blood, as pro- 9 vided in this subsection. Liability for a crime or civil damages 10 predicated on the act of withdrawing or analyzing blood and 11 related procedures does not attach to a licensed physician,or12 AN individual operating under the delegation of a licensed 13 physician, OR A NURSE who withdraws or analyzes blood or assists 14 in the withdrawal or analysis in accordance with this act unless 15 the withdrawal or analysis is performed in a negligent manner. 16 (d) A chemical test described in this subsection shall be 17 administered at the request of a peace officer having reasonable 18 grounds to believe the person has committed a crime described in 19 section 625c(1). A person who takes a chemical test administered 20 at a peace officer's request as provided in this section shall be 21 given a reasonable opportunity to have a person of his or her own 22 choosing administer 1 of the chemical tests described in this 23 subsection within a reasonable time after his or her detention. 24 The test results are admissible and shall be considered with 25 other admissible evidence in determining the defendant's inno- 26 cence or guilt. If the person charged is administered a chemical 27 test by a person of his or her own choosing, the person charged 07153'02 7 1 is responsible for obtaining a chemical analysis of the test 2 sample. 3 (e) If, after an accident, the driver of a vehicle involved 4 in the accident is transported to a medical facility and a sample 5 of the driver's blood is withdrawn at that time for medical 6 treatment, the results of a chemical analysis of that sample are 7 admissible in any civil or criminal proceeding to show the amount 8 of alcohol or presence of a controlled substance or both in the 9 person's blood at the time alleged, regardless of whether the 10 person had been offered or had refused a chemical test. The med- 11 ical facility or person performing the chemical analysis shall 12 disclose the results of the analysis to a prosecuting attorney 13 who requests the results for use in a criminal prosecution as 14 provided in this subdivision. A medical facility or person dis- 15 closing information in compliance with this subsection is not 16 civilly or criminally liable for making the disclosure. 17 (f) If, after an accident, the driver of a vehicle involved 18 in the accident is deceased, a sample of the decedent's blood 19 shall be withdrawn in a manner directed by the medical examiner 20 to determine the amount of alcohol or the presence of a con- 21 trolled substance, or both, in the decedent's blood. The medical 22 examiner shall give the results of the chemical analysis of the 23 sample to the law enforcement agency investigating the accident 24 and that agency shall forward the results to the department of 25 state police. 26 (g) The department of state police shall promulgate uniform 27 rules in compliance with the administrative procedures act of 07153'02 8 1 1969, 1969 PA 306, MCL 24.201 to 24.328, for the administration 2 of chemical tests for the purposes of this section. An instru- 3 ment used for a preliminary chemical breath analysis may be used 4 for a chemical test described in this subsection if approved 5 under rules promulgated by the department of state police. 6 (7) The provisions of subsection (6) relating to chemical 7 testing do not limit the introduction of any other admissible 8 evidence bearing upon the question of whether a person was 9 impaired by, or under the influence of, intoxicating liquor or a 10 controlled substance, or a combination of intoxicating liquor and 11 a controlled substance, or whether the person had an alcohol con- 12 tent of 0.10 grams or more per 100 milliliters of blood, per 210 13 liters of breath, or per 67 milliliters of urine, or if the 14 person is less than 21 years of age, whether the person had any 15 bodily alcohol content within his or her body. As used in this 16 section, "any bodily alcohol content" means either of the 17 following: 18 (a) An alcohol content of not less than 0.02 grams or more 19 than 0.07 grams per 100 milliliters of blood, per 210 liters of 20 breath, or per 67 milliliters of urine. 21 (b) Any presence of alcohol within a person's body resulting 22 from the consumption of intoxicating liquor, other than consump- 23 tion of intoxicating liquor as a part of a generally recognized 24 religious service or ceremony. 25 (8) If a chemical test described in subsection (6) is admin- 26 istered, the test results shall be made available to the person 27 charged or the person's attorney upon written request to the 07153'02 9 1 prosecution, with a copy of the request filed with the court. 2 The prosecution shall furnish the results at least 2 days before 3 the day of the trial. The prosecution shall offer the test 4 results as evidence in that trial. Failure to fully comply with 5 the request bars the admission of the results into evidence by 6 the prosecution. 7 (9) Except in a prosecution relating solely to a violation 8 of section 625(1)(b) or (6), the amount of alcohol in the 9 driver's blood, breath, or urine at the time alleged as shown by 10 chemical analysis of the person's blood, breath, or urine gives 11 rise to the following presumptions: 12 (a) If there were at the time 0.07 grams or less of alcohol 13 per 100 milliliters of the defendant's blood, per 210 liters of 14 the defendant's breath, or per 67 milliliters of the defendant's 15 urine, it is presumed that the defendant's ability to operate a 16 motor vehicle was not impaired due to the consumption of intoxi- 17 cating liquor and that the defendant was not under the influence 18 of intoxicating liquor. 19 (b) If there were at the time more than 0.07 grams but less 20 than 0.10 grams of alcohol per 100 milliliters of the defendant's 21 blood, per 210 liters of the defendant's breath, or per 67 milli- 22 liters of the defendant's urine, it is presumed that the 23 defendant's ability to operate a vehicle was impaired within the 24 provisions of section 625(3) due to the consumption of intoxicat- 25 ing liquor. 26 (c) If there were at the time 0.10 grams or more of alcohol 27 per 100 milliliters of the defendant's blood, per 210 liters of 07153'02 10 1 the breath, or per 67 milliliters of the defendant's urine, it is 2 presumed that the defendant was under the influence of intoxicat- 3 ing liquor. 4 (10) A person's refusal to submit to a chemical test as pro- 5 vided in subsection (6) is admissible in a criminal prosecution 6 for a crime described in section 625c(1) only to show that a test 7 was offered to the defendant, but not as evidence in determining 8 the defendant's innocence or guilt. The jury shall be instructed 9 accordingly. 07153'02 Final page. TLG