HB-4436, As Passed House, March 1, 2016

SUBSTITUTE FOR

HOUSE BILL NO. 4436

     A bill to amend 1949 PA 300, entitled

"Michigan vehicle code,"

by amending section 323 (MCL 257.323), as amended by 2001 PA 159.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 323. (1) A person aggrieved by a final determination of

the secretary of state denying the person an operator's or

chauffeur's license, a vehicle group designation, or an indorsement

on a license or revoking, suspending, or restricting an operator's

or chauffeur's license, vehicle group designation, or an

indorsement may petition for a review of the determination in the

circuit court in the county where the person was arrested if the

denial or suspension was imposed pursuant to under section 625f or

pursuant to under the order of a trial court under section 328 or,

in all other cases, in the circuit court in the person's county of

residence. The person shall file the petition within 63 days after

the determination is made except that for good cause shown the

court may allow the person to file petition within 182 days after

the determination is made. As provided in section 625f, a peace

officer aggrieved by a determination of a hearing officer in favor

of a person who requested a hearing under section 625f may, with

the prosecuting attorney's consent, petition for review of the

determination in the circuit court in the county where the arrest

was made. The peace officer shall file the petition within 63 days

after the determination is made except that for good cause shown

the court may allow the peace officer to file the petition within

182 days after the determination is made.

     (2) Except as otherwise provided in this section, the circuit

court shall enter an order setting the cause for hearing for a day

certain not more than 63 days after the order's date. The order, a

copy of the petition that includes the person's full name, current

address, birth date, and driver's license number, and all

supporting affidavits shall be served on the secretary of state's

office in Lansing not less than 20 days before the date set for the

hearing. If the person is seeking a review of the record prepared

pursuant to under section 322 or section 625f, the service upon the

secretary of state shall be made not less than 50 days before the

date set for the hearing.

     (3) The court may take testimony and examine all the facts and

circumstances relating to the denial, suspension, or restriction of

the person's license under sections 303(1)(d), 320, or 904(10) or

(11), a licensing action under section 310d, or a suspension for a

first violation under section 625f. The court may affirm, modify,

or set aside the restriction, suspension, or denial, except the

court shall not order the secretary of state to issue a restricted

or unrestricted chauffeur's license that would permit the person to

drive a commercial motor vehicle that hauls a hazardous material.

The court shall enter the order and the petitioner shall file a

certified copy of the order with the secretary of state's office in

Lansing within 7 days after entry of the order.

     (4) Except as otherwise provided in this section, in reviewing

a determination resulting in a denial, suspension, restriction, or

revocation under this act, the court shall confine its

consideration to a review of the record prepared pursuant to under

section 322 or 625f or the driving record created under section

204a for a statutory legal issue, and shall not grant may determine

that the petitioner is eligible for full driving privileges or, if

the petitioner is subject to a revocation under section 303, may

determine that the petitioner is eligible for restricted driving

privileges. The court shall set aside the secretary of state's

determination only if the petitioner's substantial rights have been

prejudiced because the determination is any 1 or more of the

following apply:

     (a) In determining whether a petitioner is eligible for full

driving privileges, the petitioner's substantial rights have been

prejudiced because the determination is any of the following:

(i) (a) In violation of the Constitution of the United States,

the state constitution of 1963, or a statute.

(ii) (b) In excess of the secretary of state's statutory

authority or jurisdiction.

(iii) (c) Made upon unlawful procedure resulting in material

prejudice to the petitioner.

(iv) (d) Not supported by competent, material, and substantial

evidence on the whole record.

(v) (e) Arbitrary, capricious, or clearly an abuse or

unwarranted exercise of discretion.

(vi) (f) Affected by other substantial and material error of

law.

     (b) In determining whether a petitioner is eligible for review

of a revocation or denial under section 303, or whether a

petitioner is eligible for restricted driving privileges, 1 or more

of the following apply:

     (i) The petitioner's substantial rights have been prejudiced

as described in subdivision (a).

     (ii) All of the following are satisfied:

     (A) The revocation or denial occurred at least 1 year after

the petitioner's license was revoked or denied, or, if the

petitioner's license was previously revoked or denied within the 7

years preceding the most recent revocation or denial, at least 5

years after the most recent revocation or denial, whichever is

later.

     (B) The court finds that the petitioner meets the department's

requirements under the rules promulgated by the department under

the administrative procedures act of 1969, 1969 PA 306, MCL 24.201

to 24.238. For purposes of this sub-subparagraph only, the court

may take additional testimony to supplement the record prepared

under section 322 or 625f or the driving record created under

section 204a, but shall not expand the record.

     (C) If the revocation or denial was under section 303(2)(a),

(b), (c), or (g), the petitioner rebuts by clear and convincing

evidence the presumption that he or she is a habitual offender, and

establishes to the court's satisfaction that he or she is likely to

adhere to any requirements imposed by the court. For purposes of

this sub-subparagraph, the conviction that resulted in the

revocation and any record of denial of reinstatement by the

department are prima facie evidence that the petitioner is a

habitual offender. For purposes of this sub-subparagraph only, the

court may take additional testimony to supplement the record

prepared under section 322 or 625f or the driving record created

under section 204a, but shall not expand the record.

     (5) If the court determines that a petitioner is eligible for

restricted driving privileges under subsection (4)(b), the court

shall issue an order that includes, but is not limited to, all of

the following:

     (a) The court's findings under section 303 and R 257.1 to R

257.1727 of the Michigan administrative code.

     (b) A requirement that each motor vehicle operated by the

petitioner be equipped with a properly installed and functioning

ignition interlock device for a period of at least 1 year. The

petitioner shall bear the cost of an ignition interlock device

required under this subdivision. A restricted license shall not be

issued to the petitioner until the secretary of state has verified

that 1 or more ignition interlock devices, if applicable, have been

installed as required by this subdivision.

     (c) A method by which the court will verify that the

petitioner maintains no-fault insurance for each vehicle described

in subdivision (b) as required by chapter 31 of the insurance code

of 1956, 1956 PA 218, MCL 500.3103 to 500.3179.

     (d) A requirement that a restricted license issued to the

petitioner shall not permit the petitioner to operate a commercial

motor vehicle that hauls hazardous materials.

     (e) A provision that the secretary of state shall revoke the

petitioner's restricted license if any of the following occur:

     (i) The petitioner violates the restrictions on his or her

license.

     (ii) The petitioner violates subdivision (b).

     (iii) The petitioner removes, or causes to be removed, an

ignition interlock device required under subdivision (b), unless

the secretary of state has authorized the removal under section

322a.

     (iv) The petitioner commits an act that would be a major

violation if the petitioner's license had been issued under section

322(6) or consumes alcohol or a controlled substance without a

prescription. As used in this subparagraph, "major violation" means

that term as defined in R 257.301a of the Michigan administrative

code.

     (v) The petitioner is arrested for a violation of section 625

or a local ordinance, law of this state or another state, or law of

the United States that substantially corresponds to section 625.

     (6) If the court determines that a petitioner is eligible for

restricted driving privileges under this section and the petitioner

intends to operate a vehicle owned by his or her employer, the

court shall notify the employer of the petitioner's obligation

under subsection (5)(b). This subsection does not require an

employer who receives a notice under this subsection to install an

ignition interlock device on a vehicle. This subsection does not

apply to a vehicle that is operated by a self-employed individual

who uses the vehicle for both business and personal use.

     (7) If a court determines that a petitioner is eligible for

restricted driving privileges, the secretary of state shall not

issue a restricted license to the petitioner until he or she has

satisfied any other applicable requirements of state or federal

law, and shall not issue a restricted license to the petitioner if

the order granting eligibility for restricted driving privileges

does not comply with subsection (5).

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.