SB0637: COMMITTEE SUMMARY (Date Completed: 11-5-13)

-- regarding damage to people or property resulting from a BAIID manufacturer's, installer's, or servicing agent's act or omission.

-- Revise liability insurance provisions for a BAIID manufacturer and provider.

-- Require the SOS to suspend, revoke, or deny the restricted license of a person whose driver license was restricted due to a drunk driving conviction, if he or she failed to maintain complete abstinence from alcohol or nonprescribed controlled substances.

-- Provide that a required period of suspension or restriction due to a drunk driving conviction would not be subject to appeal to the SOS.

-- Authorize the SOS to provide any notice required under the Code or another law regulating vehicle operation by electronic means.

Senate Bill 638 would amend the sentencing guidelines in the Code of Criminal Procedure to revise references to sections of the Vehicle Code that Senate Bill 637 would amend.

Senate Bill 639 would amend the Motor Vehicle Service and Repair Act to include a BAIID service center in the definition of "motor vehicle repair facility".

Senate Bills 638 and 639 are tie-barred to Senate Bill 637. Senate Bills 637 and 639 are described below in further detail.

Senate Bill 637

Ignition Interlock Device

The Code requires the Department of State to approve an ignition interlock device certified by a Department-approved laboratory as complying with particular model specifications for breath alcohol ignition interlock devices. The bill would delete these provisions.

Instead, a manufacturer seeking certification of a breath alcohol ignition interlock device in Michigan would have to do all of the following:

-- Complete an application for certification.

-- Submit a report from a Department-approved laboratory certifying that the BAIID met or exceeded the model specifications.

-- Agree to ensure proper record-keeping and provide testimony relating to any aspect of the installation, service, repair, use, removal, or interpretation of any report or information recorded in the data storage system of a device or performance of any other duties required by the Code at no cost on behalf of the State or any political subdivison of the State.

The bill would retain requirements that the Department provide a list of all manufacturers of approved certified devices to each person who is issued a restricted license that permits him or her to drive a vehicle only if it is equipped with a BAIID, and rotate the order of the providers with each list provided.

The Code prohibits the Department of State from including a certified BAIID manufacturer on the provided list unless the manufacturer complies with specific requirements, including filing with the Department a copy of evidence of insurance under Section 625l (which the bill would amend as described below). The bill would eliminate the reference to evidence of insurance under Section 625l, and instead require the manufacturer to file proof of liability insurance issued by an insurance company authorized to do business in Michigan, specifying all of the following:

-- That the policy was current at the time of application.

-- The name and model number of the device model covered by the policy.

-- That the policy had a minimum coverage of $1.0 million per occurrence and $3.0 million in the aggregate.

-- That the policy would indemnify the Department of State and any other person injured as a result of any defects in the manufacture, materials, design, calibration, installation, or operation of the device.

Additionally, in order to be included on the list, a BAIID manufacturer must file a copy of an affidavit that the device meets the Code's definition of such a device; and is set to take samples periodically while the vehicle is in operation and, when the device detects an alcohol content of at least 0.025 gram per 210 liters of breath, or if a breath sample is not given within the allotted time, to do the following:

-- Emit a visible or audible warning signal.

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

Under the bill, the device also would have to disable the free restart and activate a violation reset. The device would have to initiate an audible or visual cue that would warn the driver that the device would enter a permanent lockout in five days.

The bill would delete a requirement that a manufacturer give the SOS a list of installers who are authorized to install and service the manufacturer's device in order to be included on the list given to a person with a restricted license.

BAIID Manufacturers & Service Centers

The bill would require a BAIID manufacturer, upon the request of the Department of State, to give the Department at least two devices for each model certified under the Code for the Department's demonstration and training purposes. The manufacturer would have to provide the devices at no cost to the State.

Also, upon the Department's request, at no cost to the State, the manufacturer would have to install one of each certified device in a vehicle provided by the Department. Any service performed pursuant to this requirement, including installation, maintenance, calibration, or removal, would have to be completed at no cost to the State.

Upon the Department's request, for each Department-approved BAIID model, the provider would have to provide at least 10 hours of training to Department employees at no cost to the State. The training would have to be held at the times and locations within the State designated by the Department. The training would have to be designed to familiarize Department employees with the installation, operation, service, repair, and removal of the devices and include the training and instructions that the providers would give to customers. The BAIID provider also would have to give the Department, upon request, the following information:

-- A detailed description of the device, including complete instructions for installation, operation, service, repair, and removal.

-- Complete technical specifications, including detailed explanations and definitions of all data log entries.

A manufacturer would have to notify the Department at least 15 days before implementing any modification, upgrade, or alteration to any hardware, software, or firmware of a device certified for use in Michigan. The notification would have to include both of the following:

-- A description and explanation of the modification, upgrade, or alteration and proof satisfactory to the Department that the modifications, upgrades, and alterations would not adversely affect the device's ability to satisfy the Code's requirements.

-- A comprehensive plan of action for phasing out the use of the current device, approved by the Department before implementation.

Any equipment in the Department's possession that was retained for certification of the device would have to be modified, upgraded, or altered simultaneously with implementation.

Material modifications to a certified device could require recertification under the Code as determined by the Department.

A manufacturer would have to reapply for approval annually.

Currently, an ignition interlock device must be serviced according to manufacturer's standards. Service includes physical inspection of the device and vehicle for tampering, calibration of the device, and monitoring of the data contained within its memory. Only authorized employees of the manufacturer or the Department may observe the installation of a device. Reasonable security measures must be taken to prevent the customer from observing the installation or obtaining access to installation materials. The bill would delete these provisions.

Under the bill, the Department would be responsible for approving BAIID service centers for operation in Michigan. All of the requirements described below would apply for approval.

Only service centers that were manufacturers/vendors could service BAIIDS approved for use in this State. A BAIID could be installed, serviced, or removed only in a motor vehicle repair facility. ("Motor vehicle repair facility" would have the same definition as under Section 2 of the Motor Vehicle Service and Repair Act, which Senate Bill 639 would amend as described below.) A service center would have to be located in a fixed facility within the State.

Each service center would have to do the following:

-- Have at least one licensed mechanic with a BAIID certification who was properly trained by the manufacturer for which the center was a vendor as its technician to service the device.

-- Maintain and make available for inspection records proving that each BAIID mechanic working at the center was properly trained by the manufacturer to service the device for which the center was a vendor.

-- Provide a designated waiting area for customers that was separate from the area in which the devices were installed or serviced.

Only BAIID mechanics and representatives of the manufacturer of the Department of State could be allowed to observe the installation or removal of a device. Adequate security measures would have to be taken to ensure that unauthorized personnel could not gain access to proprietary materials or files of participants.

Manufacturer service centers would have to install, maintain, calibrate, and remove all BAIIDs handled by the service centers and perform any other services determined necessary by the Department for those using those BAIIDs in Michigan.

A service center would have to inform the Department of a change in its business address 15 days before relocating.

Devices approved for use in Michigan could be serviced only by service centers located within Michigan, unless a customer had a permanent residence in another state, or was unable to return to Michigan for service because of a significant personal hardship. If a BAIID were serviced by a center outside the State, the BAIID provider would have to ensure that the device operated using the same firmware used for devices in Michigan; and that the data recorded in the device would remain intact for later retrieval by a Michigan service center, or were transferred to a service center database within the State for review.

A service center would have to make the address of its location available to the Department for the area in which the center was located.

Devices for use in Michigan would have to be installed and could be removed only in an approved service center. Each application for approval would have to be for a single service center. Separate applications would be required for additional centers. Before issuing approval, the Department could require an on-site evaluation to ensure compliance with the Code. Approval of a service center would be for one year. The renewal process would be the same as the approval process.

The Department could conduct inspections of a manufacturer or service center to ensure compliance with the Code and rules promulgated under it. The manufacturer would have to pay for the actual cost to the Department in conducting an inspection.

The Secretary of State could issue an order summarily suspending the certification of a manufacturer and its device as provided in Section 92 of the Administrative Procedures Act (APA) based on an affidavit by a person familiar with the facts set forth in the affidavit that the manufacturer or service center had failed to comply with the Code or applicable administrative rules. The manufacturer would have to comply immediately, but upon application to the Department would have to be given a hearing within 30 days under the APA. On the basis of the hearing, the summary order would have to be continued, modified, or held in abeyance, within 30 days after the hearing.

(Under Section 92 of the APA, before the start of proceedings for suspension, revocation, annulment, withdrawal, recall, cancelation, or amendment of a license, an agency must notify the licensee of facts or conduct that warrant the intended action. Except as otherwise provided, the licensee must be given an opportunity to show compliance with all lawful requirements for license retention. If the agency finds that the public health, safety, or welfare requires emergency action and incorporates this finding in its order, the agency may order summary suspension of the license effective on a specified date.)

BAIID Mechanics

The bill would prohibit a person from performing any service related to a BAIID in Michigan without Department approval. All installations would have to be done in a workmanlike manner by a BAIID mechanic at an approved service center and be in accordance with the standards set forth the Code and with the manufacturer's requirements. All installed devices would have to be in working order and perform in accordance with the Code's standards. All connections would have to be soldered and covered with a tamper seal.

Upon completing installation of a BAIID, the mechanic would have to give the customer verification in the form and format designated by the Department.

A manufacturer would have to ensure that BAIID mechanics had the appropriate certification from the Department and met all of the following requirements:

-- Possessed and maintained all necessary training and skills required to install, examine, troubleshoot, and verify the proper operation.

-- Possessed the tools, test equipment, and manuals needed to install, inspect, download, calibrate, repair, maintain, service, and remove devices.

-- Provided all people who would use the vehicle with written and hands-on training regarding the operation of a vehicle equipped with the BAIID and ensure that each person demonstrated a properly delivered alveolar breath sample and an understanding of how the abort test feature worked.

A mechanic who was convicted of an alcohol-related driving offense or any offense classified as a felony in Michigan or elsewhere within five years before applying for approval as a BAIID mechanic would not be eligible for approval.

A BAIID mechanic would have to be at least 18 years old, have a valid driver license, be a motor vehicle mechanic as defined in the Motor Vehicle Service and Repair Act, and be certified as a BAIID mechanic under the Code. To be certified, the mechanic would have to meet all of the following requirements:

-- Possess a specialty certification in electrical systems under the Motor Vehicle Service and Repair Act.

-- Properly complete and file a BAIID mechanic application form with the Department.

-- Beginning 180 days after the bill took effect, be a licensed mechanic in Michigan with certification in the BAIID mechanic category (which the Department could create this purpose).

-- Submit a criminal history report certified within the preceding 30 days.

-- Meet the Department's requirements for certification.

Each application for approval would have to be for a single BAIID mechanic. Separate applications would be required for additional mechanics. Approval of a BAIID mechanic would be for one year, and the renewal process would be the same as the approval process.

The Secretary of State could investigate a BAIID mechanic's compliance with the Code and would have to suspend, revoke, or deny an individual's BAIID certification if the SOS determined that one or more of the following applied:

-- The mechanic violated the Code or a rule promulgated under it.

-- The mechanic performed improper, careless, or negligent inspection, installation, monitoring, or removal of a BAIID.

-- The mechanic made a false statement of a material fact regarding his or her actions in inspecting, installing, monitoring, or removing a BAIID.

Rescinded Rules

The bill would rescind R 257.1005 and R 257.1006, which do the following:

-- Allow the SOS to remove a manufacturer from the approved list of certified BAIID manufacturers, if the manufacturer or its devices, installers, or service providers no longer comply with applicable Code requirements or rules; or the manufacturer or authorized installers and service providers fail to submit required reports in a timely manner.

-- Authorize the SOS to conduct inspections of a laboratory or BAIID manufacturer, installer, or service provider to determine compliance with relevant provisions of the Code and rules promulgated under it.

-- Allow the SOS to remove from the approved list a manufacturer or laboratory that fails to take necessary corrective action or to come into full compliance with the Code or an applicable rule, or fails to file a written response to a notice of noncompliance within 30 days.

Use of BAIID by Another Person

The Code prohibits a person who has an ignition interlock device installed and whose driving privilege is restricted from requesting or soliciting another person to blow into the device to start the vehicle for the purpose of giving him or her an operable vehicle. The bill also would prohibit the person from allowing another person to blow into the device.

Liability

Under Section 625l, the State of Michigan, or the Department of State, its officers, employees, or agents, or a court, its officers, employees, or agents are not liable in any claim or action that may arise out of any act or omission by a manufacturer, installer, or servicing agent of an ignition interlock device that results in damage to people or property. The bill would delete this provision.

Section 625l also prohibits a person from selling, leasing, installing, or monitoring in a vehicle in Michigan an ignition interlock device unless the manufacturer and provider carries liability insurance covering product liability, including insurance to indemnify the Department of State and any person injured as a result of a design defect or the calibration or removal of the device or a misrepresentation about the device. The required insurance must be in an amount of at least $1.0 million per accident. The bill would delete these provisions.

License Suspension, Restriction, Denial, & Revocation

The Code requires the SOS to suspend a person's license for a violation of Section 625(1) or (3). (Section 625(1) prohibits a person from operating a vehicle while intoxicated. Section 625(3) prohibits a person from operating a vehicle when his or her ability to operate the vehicle is visibly impaired due to the consumption of alcoholic liquor, a controlled substance, and/or other intoxicating substance, or a combination of the three.)

The SOS also must revoke and deny issuance of a person's license for any combination of three convictions for these violations within 10 years.

Except as otherwise provided, the SOS must issue a restricted license to a person whose license was suspended, restricted, revoked, or denied based on either of the following:

-- Two or more convictions for violating Section 625(1) or (3) or a substantially corresponding local ordinance.

-- One conviction for violating Section 625(1) or (3) or a substantially corresponding local ordinance, preceded by at least one conviction for violating a local ordinance or law of another state substantially corresponding to Section 625(1), (3), or (6), or a substantially corresponding Federal law.

(Section 625(6) prohibits a person younger than 21 from operating a vehicle if he or she has any bodily alcohol content.)

A restricted license may not be issued until after the person's license has been suspended or revoked for 45 days and the judge assigned to a DWI/sobriety court certifies to the SOS that both of the following conditions have been met:

-- The person has been admitted into a DWI/sobriety court program.

-- An ignition interlock device approved, certified, and installed as required by the Code has been installed on each motor vehicle the individual owns and/or operates.