SB-0353, As Passed House, December 13, 2012

SUBSTITUTE FOR

SENATE BILL NO. 353

(As amended December 13, 2012)

A bill to amend 1949 PA 300, entitled

"Michigan vehicle code,"

by amending section 625 (MCL 257.625), as amended by 2008 PA 463.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 625. (1) A person, whether licensed or not, shall not

operate a 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 vehicles, within this state if the

person is operating while intoxicated. As used in this section,

"operating while intoxicated" means any of the following:

(a) The person is under the influence of alcoholic liquor, a

controlled substance, or other intoxicating substance or a

combination of alcoholic liquor, ~~and~~ a controlled substance, [OR ]

other intoxicating substance.

(b) The person has 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, 2013, the person has

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.

per 100 milliliters of blood, per 210 liters of breath, or per 67

milliliters of urine.

(2) The owner of a vehicle or a person in charge or in control

of a vehicle shall not authorize or knowingly permit the vehicle 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 motor vehicles, within this state by

a person if any of the following apply:

(a) The person is under the influence of alcoholic liquor, a

controlled substance, other intoxicating substance, or a

combination of alcoholic liquor, ~~and~~ a controlled substance, or

other intoxicating substance.

(b) The person has 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, 2013, the person has

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.

visibly impaired due to the consumption of alcoholic liquor, a

controlled substance, or other intoxicating substance, or a

combination of alcoholic liquor, ~~and~~ a controlled substance, or

other intoxicating substance.

(3) A person, whether licensed or not, shall not operate a

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 vehicles, within this state when, due

to the consumption of alcoholic liquor, a controlled substance, or

other intoxicating substance, or a combination of alcoholic liquor,

~~and~~ a controlled substance, or other intoxicating substance, the

person's ability to operate the vehicle 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, whether licensed or not, who operates a motor

vehicle in violation of subsection (1), (3), or (8) and by the

operation of that motor vehicle causes the death of another person

is guilty of a crime as follows:

(a) Except as provided in subdivision (b), the 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. The judgment of sentence 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.

(b) If, at the time of the violation, the person is operating

a motor vehicle in a manner proscribed under section 653a and

causes the death of a police officer, firefighter, or other

emergency response personnel, the person is guilty of a felony

punishable by imprisonment for not more than 20 years or a fine of

not less than $2,500.00 or more than $10,000.00, or both. This

subdivision applies regardless of whether the person is charged

with the violation of section 653a. The judgment of sentence 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.

(5) A person, whether licensed or not, who operates a motor

vehicle in violation of subsection (1), (3), or (8) and by the

operation of that motor vehicle 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. The judgment of sentence

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.

(6) A person who is less than 21 years of age, whether

licensed or not, shall not operate a 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

vehicles, within this state if the person has any bodily alcohol

content. As used in this subsection, "any bodily alcohol content"

means either of the following:

(a) 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, 2013, the

person has an alcohol content of 0.02 grams or more but less than

0.10 grams per 100 milliliters of blood, per 210 liters of breath,

or per 67 milliliters of urine.

(b) Any presence of alcohol within a person's body resulting

from the consumption of alcoholic liquor, other than consumption of

alcoholic liquor as a part of a generally recognized religious

service or ceremony.

(7) A person, whether licensed or not, is subject to the

following requirements:

(a) He or she shall not operate a vehicle in violation of

subsection (1), (3), (4), (5), or (8) while another person who is

less than 16 years of age is occupying the vehicle. A person who

violates this subdivision is guilty of a crime punishable as

follows:

(i) Except as provided in subparagraph (ii), a person who

violates this subdivision is guilty of a misdemeanor and shall be

sentenced to pay a fine of not less than $200.00 or more than

$1,000.00 and to 1 or more of the following:

(A) Imprisonment for not less than 5 days or more than 1 year.

Not less than 48 hours of this imprisonment shall be served

consecutively. This term of imprisonment shall not be suspended.

(B) Community service for not less than 30 days or more than

90 days.

(ii) If the violation occurs within 7 years of a prior

conviction or after 2 or more prior convictions, regardless of the

number of years that have elapsed since any prior conviction, a

person who violates this subdivision is guilty of a felony and

shall be sentenced to pay a fine of not less than $500.00 or more

than $5,000.00 and to either of the following:

(A) Imprisonment under the jurisdiction of the department of

corrections for not less than 1 year or more than 5 years.

(B) Probation with imprisonment in the county jail for not

less than 30 days or more than 1 year and community service for not

less than 60 days or more than 180 days. Not less than 48 hours of

this imprisonment shall be served consecutively. This term of

imprisonment shall not be suspended.

(b) He or she shall not operate a vehicle in violation of

subsection (6) while another person who is less than 16 years of

age is occupying the vehicle. A person who violates this

subdivision is guilty of a misdemeanor punishable as follows:

(i) Except as provided in subparagraph (ii), a person who

violates this subdivision may be sentenced to 1 or more of the

following:

(A) Community service for not more than 60 days.

(B) A fine of not more than $500.00.

(ii) If the violation occurs within 7 years of a prior

conviction or after 2 or more prior convictions, regardless of the

number of years that have elapsed since any prior conviction, a

person who violates this subdivision shall be sentenced to pay a

fine of not less than $200.00 or more than $1,000.00 and to 1 or

more of the following:

(A) Imprisonment for not less than 5 days or more than 1 year.

Not less than 48 hours of this imprisonment shall be served

consecutively. This term of imprisonment shall not be suspended.

(B) Community service for not less than 30 days or more than

90 days.

(b)(i), the court may, unless the vehicle is ordered forfeited under

section 625n, order vehicle immobilization as provided in section

904d. In the judgment of sentence under subdivision (a)(ii) or

(b)(ii), the court shall, unless the vehicle is ordered forfeited

under section 625n, order vehicle immobilization as provided in

section 904d.

(d) This subsection does not prohibit a person from being

charged with, convicted of, or punished for a violation of

subsection (4) or (5) that is committed by the person while

violating this subsection. However, points shall not be assessed

under section 320a for both a violation of subsection (4) or (5)

and a violation of this subsection for conduct arising out of the

same transaction.

(8) A person, whether licensed or not, shall not operate a

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 vehicles, within this state if 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.

(9) If a person is convicted of violating subsection (1) or

(8), all of 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 360 hours.

(ii) Imprisonment for not more than 93 days, or, if the person

is convicted of violating subsection (1)(c), imprisonment for not

more than 180 days.

(iii) A fine of not less than $100.00 or more than $500.00, or,

if the person is guilty of violating subsection (1)(c), a fine of

not less than $200.00 or more than $700.00.

(b) If the violation occurs within 7 years of a prior

conviction, the person shall be sentenced to pay a fine of not less

than $200.00 or more than $1,000.00 and 1 or more of the following:

(i) Imprisonment for not less than 5 days or more than 1 year.

Not less than 48 hours of the term of imprisonment imposed under

this subparagraph shall be served consecutively.

(ii) Community service for not less than 30 days or more than

90 days.

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 pay a fine of not less than $500.00 or more than $5,000.00 and

to either of the following:

(i) Imprisonment under the jurisdiction of the department of

corrections for not less than 1 year or more than 5 years.

(ii) Probation with imprisonment in the county jail for not

less than 30 days or more than 1 year and community service for not

less than 60 days or more than 180 days. Not less than 48 hours of

the imprisonment imposed under this subparagraph shall be served

consecutively.

(d) A term of imprisonment imposed under subdivision (b) or

(e) In the judgment of sentence under subdivision (a), the

court may order vehicle immobilization as provided in section 904d.

In the judgment of sentence under subdivision (b) or (c), the court

shall, unless the vehicle is ordered forfeited under section 625n,

order vehicle immobilization as provided in section 904d.

(f) In the judgment of sentence under subdivision (b) or (c),

the court may impose the sanction permitted under section 625n.

(10) A person who is convicted of violating subsection (2) is

guilty of a crime as follows:

(a) Except as provided in subdivisions (b) and (c), 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.

(b) If the person operating the motor vehicle violated

subsection (4), a felony punishable by imprisonment for not more

than 5 years or a fine of not less than $1,500.00 or more than

$10,000.00, or both.

subsection (5), 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.

(11) If a person is convicted of violating subsection (3), all

of 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 360 hours.

(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 pay a fine of not less

than $200.00 or more than $1,000.00, and 1 or more of the

following:

(i) Imprisonment for not less than 5 days or more than 1 year.

Not less than 48 hours of the term of imprisonment imposed under

this subparagraph shall be served consecutively.

(ii) Community service for not less than 30 days or more than

90 days.

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 pay a fine of not less than $500.00 or more than $5,000.00 and

either of the following:

(i) Imprisonment under the jurisdiction of the department of

corrections for not less than 1 year or more than 5 years.

(ii) Probation with imprisonment in the county jail for not

less than 30 days or more than 1 year and community service for not

less than 60 days or more than 180 days. Not less than 48 hours of

the imprisonment imposed under this subparagraph shall be served

consecutively.

(d) A term of imprisonment imposed under subdivision (b) or

(e) In the judgment of sentence under subdivision (a), the

court may order vehicle immobilization as provided in section 904d.

In the judgment of sentence under subdivision (b) or (c), the court

shall, unless the vehicle is ordered forfeited under section 625n,

order vehicle immobilization as provided in section 904d.

(f) In the judgment of sentence under subdivision (b) or (c),

the court may impose the sanction permitted under section 625n.

(12) If a person is convicted of violating subsection (6), all

of the following apply:

(a) Except as otherwise provided in subdivision (b), the

person is guilty of a misdemeanor punishable by 1 or both of the

following:

(i) Community service for not more than 360 hours.

(ii) A fine of not more than $250.00.

(b) If the violation occurs within 7 years of 1 or more prior

convictions, the person may be sentenced to 1 or more of the

following:

(i) Community service for not more than 60 days.

(ii) A fine of not more than $500.00.

(iii) Imprisonment for not more than 93 days.

(13) In addition to imposing the sanctions prescribed under

this section, the court may order the person to pay the costs of

the prosecution under the code of criminal procedure, 1927 PA 175,

MCL 760.1 to 777.69.

(14) A person sentenced to perform community service 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.

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

sentence under this section or a sanction under section 625n 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.

(16) If a person is charged with a violation of subsection

(1), (3), (4), (5), (7), or (8) or section 625m, the court shall

not permit the defendant to enter a plea of guilty or nolo

contendere to a charge of violating subsection (6) in exchange for

dismissal of the original charge. This subsection does not prohibit

the court from dismissing the charge upon the prosecuting

attorney's motion.

(17) A prior conviction shall be established at sentencing by

1 or more of the following:

(a) A copy of a judgment of conviction.

(b) An abstract of conviction.

sentencing proceeding.

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

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

(f) Information contained in a presentence report.

(g) An admission by the defendant.

(18) Except as otherwise provided in subsection (20), if a

person is charged with operating a vehicle while under the

influence of a controlled substance or other intoxicating substance

or a combination of alcoholic liquor, ~~and~~ a controlled substance,

or other intoxicating substance in violation of subsection (1) or a

local ordinance substantially corresponding to subsection (1), the

court shall require the jury to return a special verdict in the

form of a written finding or, if the court convicts the person

without a jury or accepts a plea of guilty or nolo contendere, the

court shall make a finding as to whether the person was under the

influence of a controlled substance or other intoxicating substance

or a combination of alcoholic liquor, ~~and~~ a controlled substance,

or other intoxicating substance at the time of the violation.

(19) Except as otherwise provided in subsection (20), if a

person is charged with operating a vehicle while his or her ability

to operate the vehicle was visibly impaired due to his or her

consumption of a controlled substance or other intoxicating

substance or a combination of alcoholic liquor, ~~and~~ a controlled

substance, or other intoxicating substance in violation of

subsection (3) or a local ordinance substantially corresponding to

subsection (3), the court shall require the jury to return a

special verdict in the form of a written finding or, if the court

convicts the person without a jury or accepts a plea of guilty or

nolo contendere, the court shall make a finding as to whether, due

to the consumption of a controlled substance or a combination of

alcoholic liquor, ~~and~~ a controlled substance, or other intoxicating

substance, the person's ability to operate a motor vehicle was

visibly impaired at the time of the violation.

(20) A special verdict described in subsections (18) and (19)

is not required if a jury is instructed to make a finding solely as

to either of the following:

(a) Whether the defendant was under the influence of a

controlled substance or a combination of alcoholic liquor, ~~and~~ a

controlled substance, or other intoxicating substance at the time

of the violation.

(b) Whether the defendant was visibly impaired due to his or

her consumption of a controlled substance or a combination of

alcoholic liquor, ~~and~~ a controlled substance, or other intoxicating

substance at the time of the violation.

(21) If a jury or court finds under subsection (18), (19), or

(20) that the defendant operated a motor vehicle under the

influence of or while impaired due to the consumption of a

controlled substance or a combination of a controlled substance,

~~and~~ an alcoholic liquor, or other intoxicating substance, the court

shall do both of the following:

(a) Report the finding to the secretary of state.

(b) On a form or forms prescribed by the state court

administrator, forward to the department of state police a record

that specifies the penalties imposed by the court, including any

term of imprisonment, and any sanction imposed under section 625n

or 904d.

(22) Except as otherwise provided by law, a record described

in subsection (21)(b) is a public record and the department of

state police shall retain the information contained on that record

for not less than 7 years.

(23) In a prosecution for a violation of subsection (6), the

defendant bears the burden of proving that the consumption of

alcoholic liquor was a part of a generally recognized religious

service or ceremony by a preponderance of the evidence.

(24) The court may order as a condition of probation that a

person convicted of violating subsection (1) or (8), or a local

ordinance substantially corresponding to subsection (1) or (8),

shall not operate a motor vehicle unless that vehicle is equipped

with an ignition interlock device approved, certified, and

installed as required under sections 625k and 625l.

(25) ~~Subject to subsection (27), as~~ As used in this section: ,

~~"prior~~

(a) "Intoxicating substance" means any substance, preparation,

or a combination of substances and preparations other than alcohol

or a controlled substance, that is either of the following:

(i) Recognized as a drug in any of the following publications

or their supplements:

(A) The official United States pharmacopoeia.

(B) The official homeopathic pharmacopoeia of the United

States.

(ii) A substance, other than food, taken into a person's body,

including, but not limited to, vapors or fumes, that is used in a

manner or for a purpose for which it was not intended, and that may

result in a condition of intoxication.

(b) "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, a law of the

United States substantially corresponding to a law of this state,

or a law of another state substantially corresponding to a law of

this state, subject to subsection (27):

(i) ~~(a)~~ Except as provided in subsection (26), a violation or

attempted violation of any of the following:

(A) (i) This section, except a violation of subsection (2), or

a violation of any prior enactment of this section 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) (ii) Section 625m.

(ii) ~~(b)~~ Negligent homicide, manslaughter, or murder resulting

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

those crimes.

(iii) ~~(c)~~ Section 601d or 626(3) or (4).

(26) Except for purposes of the enhancement described in

subsection (12)(b), only 1 violation or attempted violation of

subsection (6), a local ordinance substantially corresponding to

subsection (6), or a law of another state substantially

corresponding to subsection (6) may be used as a prior conviction.

(27) If 2 or more convictions described in subsection (25) are

convictions for violations arising out of the same transaction,

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

a prior conviction.

Enacting section 1. This amendatory act takes effect March 31,

2013.