May 26, 2009, Introduced by Reps. Lori, Walsh, Proos, Lund, DeShazor, Bolger, Rick Jones, Denby, Kurtz, Elsenheimer, Opsommer, Haines, Barnett, Bauer, Bledsoe, Rogers, Kandrevas, Scripps, Pearce, Schuitmaker, Tyler, Meadows and Kowall and referred to the Committee on Judiciary.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 80101, 80171, 80176, 80177, 80178, 80180,
80183, 80184, 80186, 80187, and 80190 (MCL 324.80101, 324.80171,
324.80176, 324.80177, 324.80178, 324.80180, 324.80183, 324.80184,
324.80186, 324.80187, and 324.80190), section 80101 as amended by
2004 PA 547, sections 80171, 80186, and 80190 as added by 1995 PA
58, sections 80176, 80177, and 80178 as amended by 2001 PA 12,
section 80180 as amended by 2007 PA 8, and sections 80183, 80184,
and 80187 as amended by 1996 PA 174.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 80101. As used in this part:
(a) "Airboat" means a motorboat that is propelled, wholly or
in part, by a propeller projecting above the water surface.
(b) "Alcoholic liquor" means that term as defined in section
1d of the Michigan vehicle code, 1949 PA 300, MCL 257.1d.
(c) (b)
"Anchored rafts" means all types of nonpowered rafts
used for recreational purposes that are anchored seasonally on
waters of this state.
(d) (c)
"Associated equipment" means any of the following that
are not radio equipment:
(i) An original system, part, or component of a boat at the
time that boat was manufactured, or a similar part or component
manufactured or sold for replacement.
(ii) Repair or improvement of an original or replacement
system, part, or component.
(iii) An accessory or equipment for, or appurtenance to, a boat.
(iv) A marine safety article, accessory, or equipment intended
for use by a person on board a boat.
(e) (d)
"Boat" means a vessel.
(f) (e)
"Boat livery" means a business that holds a vessel for
renting, leasing, or chartering.
(g) (f)
"Controlled substance" means that term as defined in
section 7104 of the public health code, 1978 PA 368, MCL 333.7104.
(h) (g)
"Conviction" means a final conviction, the payment of
a fine, a plea of guilty or nolo contendere if accepted by the
court, a finding of guilt, or a probate court disposition on a
violation of this part, regardless of whether the penalty is
rebated or suspended.
Sec. 80171. Unless otherwise specified under this part, a
violation of this part or rules promulgated under this part is a
misdemeanor. A political subdivision having adopted a local
ordinance in conformity with this part may provide that any
violation of the ordinance is a misdemeanor. Any person convicted
of reckless operation of a vessel as defined in section 80147, or
of
operating a vessel while under the influence of intoxicating
alcoholic liquor or narcotic drugs, or with any amount of a
controlled substance listed in schedule 1 under section 7212 of the
public health code, 1978 PA 368, MCL 333.7212, or a rule
promulgated under that section, or of a controlled substance
described in section 7214(a)(iv) of the public health code, 1978 PA
368, MCL 333.7214, in his or her body, in addition to any other
penalty, may be refused by the court having jurisdiction of the
violation the right of operating any vessel on any of the waters of
this state for a period of not more than 2 years.
Sec. 80176. (1) A person shall not operate a vessel on the
waters
of this state if either any of the following applies apply:
(a)
The person is under the influence of intoxicating
alcoholic liquor or a controlled substance, or both.
(b)
The person has a blood alcohol content of 0.10 0.08
grams
or more per 100 milliliters of blood, per 210 liters of breath, or
per 67 milliliters of urine.
(c) The person has in his or her body any amount of a
controlled substance listed in schedule 1 under section 7212 of the
public health code, 1978 PA 368, MCL 333.7212, or a rule
promulgated under that section, or of a controlled substance
described in section 7214(a)(iv) of the public health code, 1978 PA
368, MCL 333.7214.
(2) The owner of a vessel or a person in charge or in control
of a vessel shall not authorize or knowingly permit the vessel to
be
operated on the waters of this state by a person who if any of
the following apply:
(a)
The person is under the influence of intoxicating
alcoholic liquor or a controlled substance, or both. ,
or who
(b) The person has a blood alcohol content of 0.10 0.08
grams
or more per 100 milliliters of blood, per 210 liters of breath, or
per 67 milliliters of urine.
(c) The person's ability to operate the vessel is visibly
impaired due to the consumption of alcoholic liquor, a controlled
substance, or a combination of alcoholic liquor and a controlled
substance.
(3) A person shall not operate a vessel on the waters of this
state
when, due to the consumption of an intoxicating alcoholic
liquor or a controlled substance, or both, the person's ability to
operate the vessel is visibly impaired. If a person is charged with
violating subsection (1), a finding of guilty under this subsection
may be rendered.
(4) A person who operates a vessel on the waters of this state
under
the influence of intoxicating alcoholic liquor or a
controlled substance, or both, or with a blood alcohol content of
0.10
0.08 grams or more per 100 milliliters of blood, per 210
liters of breath, or per 67 milliliters of urine, or has in his or
her body any amount of a controlled substance listed in schedule 1
under section 7212 of the public health code, 1978 PA 368, MCL
333.7212, or a rule promulgated under that section, or of a
controlled substance described in section 7214(a)(iv) of the public
health code, 1978 PA 368, MCL 333.7214, and by the operation of
that vessel 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.
(5) A person who operates a vessel on the waters of this state
under
the influence of intoxicating liquor or a controlled
substance,
or both, or with a blood alcohol content of 0.10 grams
or
more per 100 milliliters of blood, per 210 liters of breath, or
per
67 milliliters of urine, in
violation of subsection (1) or (3)
and by the operation of that vessel causes a 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. As used in this
subsection,
"serious impairment of a body function" includes, but
is
not limited to, 1 or more of the following: means that term as
defined in section 58c of the Michigan vehicle code, 1949 PA 300,
MCL 257.58c.
(a)
Loss of a limb or use of a limb.
(b)
Loss of a hand, foot, finger, or thumb or use of a hand,
foot,
finger, or thumb.
(c)
Loss of an eye or ear or 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 damage or mental impairment.
(h)
A skull fracture or other serious bone fracture.
(i)
Subdural hemorrhage or subdural hematoma.
Sec. 80177. (1) If a person is convicted of violating section
80176(1), the following apply:
(a) Except as otherwise provided in subdivisions (b) and (c),
the person is guilty of a misdemeanor and shall be punished by 1 or
more of the following:
(i) Community service for not more than 45 days.
(ii) Imprisonment for not more than 93 days.
(iii) A fine of not less than $100.00 or more than $500.00.
(b) If the violation occurs within 7 years of a prior
conviction, the person shall be sentenced to both a fine of not
less than $200.00 or more than $1,000.00 and either of the
following:
(i) Community service for not less than 10 days or more than 90
days, and may be imprisoned for not more than 1 year.
(ii) Imprisonment for not less than 48 consecutive hours or
more than 1 year, and may be sentenced to community service for not
more than 90 days.
(c)
If the violation occurs within 10 years of after 2
or more
prior convictions regardless of the number of years that have
elapsed since any prior conviction, the person is guilty of a
felony and shall be sentenced to imprisonment for not less than 1
year or more than 5 years, or a fine of not less than $500.00 or
more than $5,000.00, or both.
(2) A term of imprisonment imposed under subdivision (b)(ii)
shall not be suspended. A person sentenced to perform service to
the community under this section shall not receive compensation and
shall reimburse the state or appropriate local unit of government
for the cost of supervision incurred by the state or local unit of
government as a result of the person's activities in that service.
(3) In addition to the sanctions prescribed under subsection
(1) and section 80176(4) and (5), the court may, pursuant to the
code of criminal procedure, 1927 PA 175, MCL 760.1 to 777.69, order
the person to pay the costs of the prosecution. The court shall
also impose sanctions under sections 80185 and 80186.
(4) A person who is convicted of violating section 80176(2) is
guilty of a misdemeanor, punishable by imprisonment for not more
than 93 days, or a fine of not less than $100.00 or more than
$500.00, or both.
(5) As used in this section, "prior conviction" means a
conviction for a violation of any of the following:
(a) Section 80176(1), (4), or (5).
(b) Former section 171(1), (4), or (5) of the marine safety
act.
(c) Former section 73 of the marine safety act.
(d) A local ordinance substantially corresponding to section
80176(1) or former section 73 of the marine safety act.
(e) A law of another state substantially corresponding to
section 80176(1), (4), or (5) or former section 73 of the marine
safety act.
Sec. 80178. (1) If a person is convicted of violating section
80176(3), the following apply:
(a) Except as otherwise provided in subdivisions (b) and (c),
the person is guilty of a misdemeanor punishable by 1 or more of
the following:
(i) Community service for not more than 45 days.
(ii) Imprisonment for not more than 93 days.
(iii) A fine of not more than $300.00.
(b) If the violation occurs within 7 years of 1 prior
conviction, the person shall be sentenced to both a fine of not
less than $200.00 or more than $1,000.00, and either of the
following:
(i) Community service for not less than 10 days or more than 90
days, and may be sentenced to imprisonment for not more than 1
year.
(ii) Imprisonment for not more than 1 year, and may be
sentenced to community service for not more than 90 days.
(c)
If the violation occurs within 10 years of after 2
or more
prior convictions regardless of the number of years that have
elapsed since any prior conviction, the person shall be sentenced
to both a fine of not less than $200.00 or more than $1,000.00, and
either of the following:
(i) Community service for a period of not less than 10 days or
more than 90 days, and may be sentenced to imprisonment for not
more than 1 year.
(ii) Imprisonment for not more than 1 year, and may be
sentenced to community service for not more than 90 days.
(2) In addition to the sanctions prescribed in subsection (1),
the court may, pursuant to the code of criminal procedure, 1927 PA
175, MCL 760.1 to 777.69, order the person to pay the costs of the
prosecution. The court shall also impose sanctions under sections
80185 and 80186.
(3) A person sentenced to perform service to the community
under this section shall not receive compensation, and shall
reimburse the state or appropriate local unit of government for the
cost of supervision incurred by the state or local unit of
government as a result of the person's activities in that service.
(4) As used in this section, "prior conviction" means a
conviction for a violation of any of the following:
(a) Section 80176(1), (3), (4), or (5).
(b) Former section 171(1) of the marine safety act.
(c) Former section 73 of the marine safety act.
(d) Former section 73b of the marine safety act.
(e) A local ordinance substantially corresponding to section
80176(1), former section 73 of the marine safety act, or former
section 73b of the marine safety act.
(f) A law of another state substantially corresponding to
section 80176(1), (3), (4), or (5), former section 73 of the marine
safety act, or former section 73b of the marine safety act.
Sec. 80180. (1) A peace officer, without a warrant, may arrest
a person if the peace officer has reasonable cause to believe that
the person was, at the time of an accident, the operator of a
vessel involved in the accident in this state while in violation of
section 80176(1), (3), (4), or (5) or a local ordinance
substantially corresponding to section 80176(1) or (3).
(2) A peace officer who has reasonable cause to believe that a
person was operating a vessel on the waters of this state, and
that,
by the consumption of intoxicating alcoholic liquor, the
person may have affected his or her ability to operate a vessel,
may require the person to submit to a preliminary chemical breath
analysis. The following apply with respect to a preliminary
chemical breath analysis:
(a) Only a peace officer who has successfully completed a
training course taught by a state-certified instructor in the
administration of the preliminary chemical breath analysis may
administer that test.
(b) A peace officer may arrest a person based in whole or in
part upon the results of a preliminary chemical breath analysis.
(c) The results of a preliminary chemical breath analysis are
admissible in a criminal prosecution for a crime described in
section 80187(1) or in an administrative hearing solely to assist
the court or hearing officer in determining a challenge to the
validity of an arrest. This subdivision does not limit the
introduction of other competent evidence offered to establish the
validity of an arrest.
(d) A person who submits to a preliminary chemical breath
analysis remains subject to the requirements of sections 80187 to
80190 for the purposes of chemical tests described in those
sections.
(e) A person who refuses to submit to a preliminary chemical
breath analysis upon a lawful request by a peace officer is
responsible for a state civil infraction and may be ordered to pay
a civil fine of not more than $500.00.
(3) A peace officer making an arrest under this part shall
take measures to assure that the vessel and its occupants are
safely returned to shore.
(4) If, not more than 60 days after the issuance of a citation
for a state civil infraction under this section, the person to whom
the citation is issued is not charged with a violation of section
80176(1), (3), (4), or (5) or a local ordinance substantially
corresponding to section 80176(1) or (3), the citation issued for
the state civil infraction is void. Upon application of the person
to whom the citation is issued, money paid by the person as a fine,
costs, or otherwise shall be immediately returned.
Sec. 80183. (1) The provisions of sections 80181 and 80182
relating to chemical testing do not limit the introduction of any
other competent evidence bearing upon the question of whether or
not a person was impaired by, or under the influence of,
intoxicating
alcoholic liquor or a controlled substance, or both,
or
whether the person had a blood alcohol content of 0.10 0.08
grams or more per 100 milliliters of blood, per 210 liters of
breath, or per 67 milliliters of urine, or whether the person had
any amount of a controlled substance listed in schedule 1 under
section 7212 of the public health code, 1978 PA 368, MCL 333.7212,
or a rule promulgated under that section, or of a controlled
substance described in section 7214(a)(iv) of the public health
code, 1978 PA 368, MCL 333.7214, in his or her body.
(2) If a chemical test described in sections 80181 and 80182
is administered, the results of the test shall 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 results of the test shall be offered as
evidence by the prosecution in that trial. Failure to fully comply
with the request bars the admission of the results into evidence by
the prosecution.
Sec.
80184. (1) Except in a prosecution relating solely to a
violation
of section 80176(1)(b), the amount of alcohol in the
operator's
blood at the time alleged as shown by chemical analysis
of
the person's blood, urine, or breath gives rise to the following
presumptions:
(a)
If at the time defendant had an alcohol content of 0.07
grams
or less per 100 milliliters of blood, per 210 liters of
breath,
or per 67 milliliters of urine, it shall be presumed that
the
defendant's ability to operate a vessel was not impaired due to
the
consumption of intoxicating liquor and that the defendant was
not
under the influence of intoxicating liquor.
(b)
If at the time defendant had an alcohol content of more
than
0.07 grams but less than 0.10 grams per 100 milliliters of
blood,
per 210 liters of breath, or per 67 milliliters of urine, it
shall
be presumed that the defendant's ability to operate a vessel
was
impaired within the provisions of section 80176(3) due to the
consumption
of intoxicating liquor.
(c)
If at the time defendant 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, it shall be presumed that
the
defendant was under the influence of intoxicating liquor.
(2)
A person's refusal to submit to a
chemical test as
provided in sections 80181 and 80182 is admissible in a criminal
prosecution for a crime described in section 80187(1) only for the
purpose of showing that a test was offered to the defendant, but
not as evidence in determining innocence or guilt of the defendant.
The jury shall be instructed accordingly.
Sec. 80186. (1) Immediately upon acceptance by the court of a
plea of guilty or nolo contendere or upon entry of a verdict of
guilty for a violation of section 80176(1), (3), (4), or (5) or a
local ordinance substantially corresponding to section 80176(1) or
(3), whether or not the person is eligible to be sentenced as a
multiple offender, the court shall consider all prior convictions
currently entered upon the boating record of the person or other
evidence of prior convictions established under section 80179,
except those convictions that, upon motion by the defendant, are
determined by the court to be constitutionally invalid, and shall
impose the following sanctions:
(a) For a conviction under section 80176(4) or (5), the court
shall order with no expiration date that the person not operate a
vessel on the waters of this state.
(b) For a conviction under section 80176(1) or a local
ordinance substantially corresponding to section 80176(1):
(i) If the court finds that the person has no prior convictions
within 7 years for a violation of section 80176(1), (3), (4), or
(5), former section 171(1), (3), (4), or (5), or another boating
substance abuse offense, or that the person has 1 prior conviction
within 7 years for a violation of section 80176(3); former section
171(3) of the marine safety act; former section 73b of the marine
safety act; a local ordinance substantially corresponding to
section 80176(3) or former section 73b of the marine safety act; or
a law of another state substantially corresponding to section
80176(3) or former section 73b of the marine safety act, the court
may order that the person not operate a vessel on the waters of
this state for not less than 1 year or more than 2 years.
(ii) If the court finds that the person has 1 or more prior
convictions within 7 years for a violation of section 80176(1),
(3), (4), or (5); former section 73 of the marine safety act; a
local ordinance substantially corresponding to section 80176(1) or
former section 73 of the marine safety act; or a law of another
state substantially corresponding to section 80176(1), (4), or (5)
or former section 73 of the marine safety act, the court shall
order that the person not operate a vessel on the waters of this
state for not less than 2 years.
(iii) If the court finds that the person has 2 or more prior
convictions
within 10 any period of years for a violation of
section 80176(1), (3), (4), or (5) or former section 171(1), (3),
(4), or (5) or another boating substance abuse offense, the court
shall order with no expiration date that the person not operate a
vessel on the waters of this state.
(c) For a conviction under section 80176(3) or a local
ordinance substantially corresponding to section 80176(3):
(i) If the court finds that the convicted person has no prior
conviction within 7 years for a violation of section 80176(1), (3),
(4), or (5) or former section 171(1), (3), (4), or (5) or another
boating substance abuse offense, the court may order that the
person not operate a vessel on the waters of this state for not
less than 6 months or more than 1 year.
(ii) If the court finds that the person has 1 prior conviction
within 7 years for a violation of section 80176(1), (3), (4), or
(5) or former section 171(1), (3), (4), or (5) or another boating
substance abuse offense, the court shall order that the person not
operate a vessel on the waters of this state for not less than 1
year or more than 2 years.
(iii) If the court finds that the person has 2 or more prior
convictions
within 10 any period of years for a violation of
section 80176(1), (3), (4), or (5) or former section 171(1), (3),
(4), or (5) or another boating substance abuse offense, the court
shall order with no expiration date that person not to operate a
vessel on the waters of this state.
(2) As used in this section, "another boating substance abuse
offense" means former section 73 or 73b of the marine safety act, a
local ordinance substantially corresponding to section 80176(1) or
(3) or former section 73 or 73b of the marine safety act, or a law
of another state substantially corresponding to section 80176(1),
(3), (4), or (5) or former section 73 or 73b of the marine safety
act.
Sec. 80187. (1) A person who operates a vessel on the waters
of this state is considered to have given consent to chemical tests
of his or her blood, breath, or urine for the purpose of
determining the amount of alcohol or presence of a controlled
substance, or both, in his or her blood in all of the following
circumstances:
(a) The person is arrested for a violation of section
80176(1), (3), (4), or (5), or a local ordinance substantially
corresponding to section 80176(1) or (3).
(b) The person is arrested for negligent homicide,
manslaughter, or murder resulting from the operation of a vessel,
and the peace officer had reasonable grounds to believe that the
person
was operating the vessel while impaired by, or under the
influence
of, intoxicating liquor or a controlled substance, or
both,
or while having a blood alcohol content of 0.10 grams or more
per
100 milliliters of blood, per 210 liters of breath, or per 67
milliliters
of urine in violation of
section 80176.
(2) A person who is afflicted with hemophilia, diabetes, or a
condition requiring the use of an anticoagulant under the direction
of a physician shall not be considered to have given consent to the
withdrawal of blood.
(3) A chemical test described in subsection (1) shall be
administered as provided in sections 80181 and 80182.
Sec. 80190. (1) If a person who refuses to submit to a
chemical test pursuant to section 80181 or 80182 does not request a
hearing
within 14 days of the date of notice pursuant to as
prescribed in section 80189, the secretary of state shall issue an
order that the person not operate a vessel on the waters of this
state
for 6 months 1 year or, for a second or subsequent refusal
within
7 years, for 1 year 2
years.
(2) If a hearing is requested, the secretary of state shall
hold the hearing in the same manner and under the same conditions
as
provided in section 322 of the Michigan vehicle code, Act No.
300
of the Public Acts of 1949, being section 257.322 of the
Michigan
Compiled Laws 1949 PA 300,
MCL 257.322. A person shall not
order a hearing officer to make a particular finding on any issue
enumerated under subdivisions (a) to (d). Not less than 5 days'
notice of the hearing shall be mailed to the person requesting the
hearing, to the peace officer who filed the report under section
80188, and, if the prosecuting attorney requests receipt of the
notice, to the prosecuting attorney of the county where the arrest
was made. The hearing officer may administer oaths, issue subpoenas
for the attendance of necessary witnesses, and grant a reasonable
request for an adjournment. Not more than 1 adjournment shall be
granted to a party, and the length of an adjournment shall not
exceed 14 days. A hearing under this subsection shall be scheduled
to be held within 45 days after the date of arrest and, except for
delay attributable to the unavailability of the defendant, a
witness, or material evidence or to an interlocutory appeal or
exceptional circumstances, but not for delay attributable to docket
congestion, shall be finally adjudicated within 77 days after the
date of arrest. The hearing shall cover only the following issues:
(a) Whether the peace officer had reasonable grounds to
believe that the person had committed a crime described in section
80187(1).
(b) Whether the person was placed under arrest for a crime
described in section 80187(1).
(c) If the person refused to submit to the test upon the
request of the officer, whether the refusal was reasonable.
(d) Whether the person was advised of his or her rights under
section 80181.
(3) The hearing officer shall make a record of proceedings
held pursuant subsection (2). The record shall be prepared and
transcribed in accordance with section 86 of the administrative
procedures
act of 1969, Act No. 306 of the Public Acts of 1969,
being
section 24.286 of the Michigan Compiled Laws 1969 PA 306, MCL
24.286. Upon notification of the filing of a petition for judicial
review pursuant to section 80194 and not less than 10 days before
the matter is set for review, the hearing officer shall transmit to
the court in which the petition is filed the original or a
certified copy of the official record of the proceedings. The
parties to the proceedings for judicial review may stipulate that
the record be shortened. A party unreasonably refusing to stipulate
to a shortened record may be taxed by the court in which the
petition is filed for the additional costs. The court may permit
subsequent corrections to the record.
(4) After a hearing, if the person who requested the hearing
does not prevail, the secretary of state shall order that the
person
not operate a vessel on the waters of this state for 6
months
1 year or, for a second or subsequent refusal within 7
years,
for 1 year 2 years. The person may file a petition in the
circuit court of the county in which the arrest was made to review
the order as provided in section 80194. If after the hearing the
person who requested the hearing prevails, the peace officer who
filed the report under section 80188 may, with the consent of the
prosecuting attorney, file a petition in the circuit court of the
county in which the arrest was made to review the determination of
the hearing officer as provided in section 80194.
Enacting section 1. This amendatory act takes effect January
1, 2010.