July 1, 2015, Introduced by Senators CASPERSON, JONES and NOFS and referred to the Committee on Judiciary.
A bill to amend 1949 PA 300, entitled
"Michigan vehicle code,"
by amending section 625a (MCL 257.625a), as amended by 2015 PA 11,
and by adding sections 43b and 625p.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 43b. "Preliminary oral fluid analysis" means the on-site
taking of a preliminary oral fluid test, performed by a certified
drug recognition expert, as that term is defined in section 625p,
from the oral fluid of a person for the purpose of detecting the
presence of a controlled substance, as that term is defined in
section 7104 of the public health code, 1978 PA 368, MCL 333.7104.
Sec. 625a. (1) A peace officer may arrest a person without a
warrant under either of the following circumstances:
(a) The peace officer has reasonable cause to believe the
person was, at the time of an accident in this state, the operator
of a vehicle involved in the accident and was operating the vehicle
in violation of section 625 or a local ordinance substantially
corresponding to section 625.
(b) The person is found in the driver's seat of a vehicle
parked or stopped on a highway or street within this state if any
part of the vehicle intrudes into the roadway and the peace officer
has reasonable cause to believe the person was operating the
vehicle in violation of section 625 or a local ordinance
substantially corresponding to section 625.
(2) A peace officer who has reasonable cause to believe that a
person was operating a vehicle upon a public highway or other place
open to the public or generally accessible to motor vehicles,
including an area designated for the parking of vehicles, within
this state and that the person by the consumption of alcoholic
liquor, a controlled substance, or other intoxicating substance or
a combination of them may have affected his or her ability to
operate a vehicle, or reasonable cause to believe that a person was
operating a commercial motor vehicle within the state while the
person's blood, breath, or urine contained any measurable amount of
alcohol, a controlled substance, or any other intoxicating
substance or while the person had any detectable presence of
alcoholic liquor, a controlled substance or any other intoxicating
substance, or any combination of them, or reasonable cause to
believe that a person who is less than 21 years of age was
operating a vehicle upon a public highway or other place open to
the public or generally accessible to motor vehicles, including an
area designated for the parking of vehicles, within this state
while the person had any bodily alcohol content as that term is
defined in section 625(6), may require the person to submit to a
preliminary chemical breath analysis. A peace officer who is
certified as a drug recognition expert, as that term is defined in
section 625p, may require the person to submit to a preliminary
oral fluid analysis in addition to a preliminary chemical breath
analysis. The following provisions apply with respect to a
preliminary chemical breath analysis, or an oral fluid analysis
performed by a drug recognition expert as that term is defined in
section 625p, administered under this subsection:
(a) A peace officer may arrest a person based in whole or in
part upon the results of a preliminary chemical breath analysis, or
an oral fluid analysis performed by a drug recognition expert as
that term is defined in section 625p.
(b) The results of a preliminary chemical breath analysis, or
an oral fluid analysis performed by a drug recognition expert as
that term is defined in section 625p, are admissible in a criminal
prosecution for a crime enumerated in section 625c(1) or in an
administrative hearing for 1 or more of the following purposes:
(i) To assist the court or hearing officer in determining a
challenge to the validity of an arrest. This subparagraph does not
limit the introduction of other competent evidence offered to
establish the validity of an arrest.
(ii) As evidence of the defendant's breath alcohol content or
the presence or nonpresence of a controlled substance in the
defendant's oral fluid, if offered by the defendant to rebut
testimony elicited on cross-examination of a defense witness that
the defendant's breath alcohol content was higher at the time of
the charged offense than when a chemical test was administered
under subsection (6), or that the defendant's oral fluid analysis
showed the presence of a controlled substance that was not found to
be present when a chemical test was administered under subsection
(6).
(iii) As evidence of the defendant's breath alcohol content or
the presence or nonpresence of a controlled substance in the
defendant's oral fluid, if offered by the prosecution to rebut
testimony elicited on cross-examination of a prosecution witness
that the defendant's breath alcohol content was lower at the time
of the charged offense than when a chemical test was administered
under subsection (6), or that the defendant's oral fluid analysis
showed no presence of a controlled substance that was found to be
present when a chemical test was administered under subsection (6).
(c) A person who submits to a preliminary chemical breath or
oral fluid analysis remains subject to the requirements of sections
625c, 625d, 625e, and 625f for purposes of chemical tests described
in those sections.
(d) Except as provided in subsection (5), a person who refuses
to submit to a preliminary chemical breath or oral fluid analysis
upon a lawful request by a peace officer is responsible for a civil
infraction.
(3) A peace officer shall use the results of a preliminary
chemical breath or oral fluid analysis conducted under this section
to determine whether to order a person out-of-service under section
319d. A peace officer shall order out-of-service as required under
section 319d a person who was operating a commercial motor vehicle
and who refuses to submit to a preliminary chemical breath or oral
fluid analysis as provided in this section. This section does not
limit use of other competent evidence by the peace officer to
determine whether to order a person out-of-service under section
319d.
(4) A person who was operating a commercial motor vehicle and
who is requested to submit to a preliminary chemical breath or oral
fluid analysis under this section shall be advised that refusing a
peace officer's request to take a test described in this section is
a misdemeanor punishable by imprisonment for not more than 93 days
or a fine of not more than $100.00, or both, and will result in the
issuance of a 24-hour out-of-service order.
(5) A person who was operating a commercial motor vehicle and
who refuses to submit to a preliminary chemical breath or oral
fluid analysis upon a peace officer's lawful request is guilty of a
misdemeanor punishable by imprisonment for not more than 93 days or
a fine of not more than $100.00, or both.
(6) The following provisions apply with respect to chemical
tests and analysis of a person's blood, urine, or breath, other
than a preliminary chemical breath or oral fluid analysis:
(a) The amount of alcohol or presence of a controlled
substance or other intoxicating substance in a driver's blood or
urine or the amount of alcohol in a person's breath at the time
alleged as shown by chemical analysis of the person's blood, urine,
or breath is admissible into evidence in any civil or criminal
proceeding and is presumed to be the same as at the time the person
operated the vehicle.
(b) A person arrested for a crime described in section 625c(1)
shall be advised of all of the following:
(i) If he or she takes a chemical test of his or her blood,
urine, or breath administered at the request of a peace officer, he
or she has the right to demand that a person of his or her own
choosing administer 1 of the chemical tests.
(ii) The results of the test are admissible in a judicial
proceeding as provided under this act and will be considered with
other admissible evidence in determining the defendant's innocence
or guilt.
(iii) He or she is responsible for obtaining a chemical
analysis of a test sample obtained at his or her own request.
(iv) If he or she refuses the request of a peace officer to
take a test described in subparagraph (i), a test shall not be
given without a court order, but the peace officer may seek to
obtain a court order.
(v) Refusing a peace officer's request to take a test
described in subparagraph (i) will result in the suspension of his
or her operator's or chauffeur's license and vehicle group
designation or operating privilege and in the addition of 6 points
to his or her driver record.
(c) A sample or specimen of urine or breath shall be taken and
collected in a reasonable manner. Only a licensed physician, or an
individual operating under the delegation of a licensed physician
under section 16215 of the public health code, 1978 PA 368, MCL
333.16215, qualified to withdraw blood and acting in a medical
environment, may withdraw blood at a peace officer's request to
determine the amount of alcohol or presence of a controlled
substance or other intoxicating substance in the person's blood, as
provided in this subsection. Liability for a crime or civil damages
predicated on the act of withdrawing or analyzing blood and related
procedures does not attach to a licensed physician or individual
operating under the delegation of a licensed physician who
withdraws or analyzes blood or assists in the withdrawal or
analysis in accordance with this act unless the withdrawal or
analysis is performed in a negligent manner.
(d) A chemical test described in this subsection shall be
administered at the request of a peace officer having reasonable
grounds to believe the person has committed a crime described in
section 625c(1). A person who takes a chemical test administered at
a peace officer's request as provided in this section shall be
given a reasonable opportunity to have a person of his or her own
choosing administer 1 of the chemical tests described in this
subsection within a reasonable time after his or her detention. The
test results are admissible and shall be considered with other
admissible evidence in determining the defendant's innocence or
guilt. If the person charged is administered a chemical test by a
person of his or her own choosing, the person charged is
responsible for obtaining a chemical analysis of the test sample.
(e) If, after an accident, the driver of a vehicle involved in
the accident is transported to a medical facility and a sample of
the driver's blood is withdrawn at that time for medical treatment,
the results of a chemical analysis of that sample are admissible in
any civil or criminal proceeding to show the amount of alcohol or
presence of a controlled substance or other intoxicating substance
in the person's blood at the time alleged, regardless of whether
the person had been offered or had refused a chemical test. The
medical facility or person performing the chemical analysis shall
disclose the results of the analysis to a prosecuting attorney who
requests the results for use in a criminal prosecution as provided
in this subdivision. A medical facility or person disclosing
information in compliance with this subsection is not civilly or
criminally liable for making the disclosure.
(f) If, after an accident, the driver of a vehicle involved in
the accident is deceased, a sample of the decedent's blood shall be
withdrawn in a manner directed by the medical examiner to determine
the amount of alcohol or the presence of a controlled substance or
other intoxicating substance, or any combination of them, in the
decedent's blood. The medical examiner shall give the results of
the chemical analysis of the sample to the law enforcement agency
investigating the accident and that agency shall forward the
results to the department of state police.
(g) The department of state police shall promulgate uniform
rules in compliance with the administrative procedures act of 1969,
1969 PA 306, MCL 24.201 to 24.328, for the administration of
chemical tests for the purposes of this section. An instrument used
for a preliminary chemical breath analysis may be used for a
chemical test described in this subsection if approved under rules
promulgated by the department of state police.
(7) The provisions of subsection (6) relating to chemical
testing do not limit the introduction of any other admissible
evidence bearing upon any of the following questions:
(a) Whether the person was impaired by, or under the influence
of, alcoholic liquor, a controlled substance or other intoxicating
substance, or a combination of alcoholic liquor, a controlled
substance, or other intoxicating substance.
(b) Whether the person had 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, 2018, the person
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.
(c) If the person is less than 21 years of age, whether the
person had any bodily alcohol content within his or her body. As
used in this subdivision, "any bodily alcohol content" means either
of the following:
(i) 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, 2018, the
person had an alcohol content of 0.02 grams or more but less than
0.10 grams or more per 100 milliliters of blood, per 210 liters of
breath, or per 67 milliliters of urine.
(ii) Any presence of alcohol within a person's body resulting
from the consumption of alcoholic liquor, other than the
consumption of alcoholic liquor as a part of a generally recognized
religious service or ceremony.
(8) If a chemical test described in subsection (6) is
administered, the test results 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 prosecution shall offer the test results as
evidence in that trial. Failure to fully comply with the request
bars the admission of the results into evidence by the prosecution.
(9) A person's refusal to submit to a chemical test as
provided in subsection (6) is admissible in a criminal prosecution
for a crime described in section 625c(1) only to show that a test
was offered to the defendant, but not as evidence in determining
the defendant's innocence or guilt. The jury shall be instructed
accordingly.
(10) As used in this section:
(a) "Controlled substance" means that term as defined in
section 7104 of the public health code, 1978 PA 368, MCL 333.7104.
(b) "Intoxicating substance" means that term as defined in
section 625.
Sec. 625p. (1) The department of state police may establish a
pilot program in 3 counties in this state for roadside drug testing
to determine whether an individual is operating a vehicle while
under the influence of a controlled substance in violation of
section 625.
(2) A pilot program established under this section shall be
for a period of 1 calendar year. The funding of a pilot program
established under this section is subject to appropriation.
(3) The department of state police shall select 3 counties in
which to implement a pilot program established under this section.
(4) A county is eligible to participate in the pilot program
if the county has a law enforcement agency within its boundary,
including, but not limited to, a state police post, a sheriff's
department, or a municipal police department, that employs not
fewer than 1 law enforcement officer who is a certified drug
recognition expert.
(5) The department of state police shall develop a written
policy for the implementation of the pilot program and the
administration of roadside drug testing.
(6) The department of state police may promulgate rules under
the administrative procedures act of 1969, 1969 PA 306, MCL 24.201
to 24.328, to implement a pilot program established under this
section.
(7) Within 90 days after the conclusion of a roadside drug
testing pilot program established under this section, the
department of state police shall submit a report to the legislative
committees of the senate and house of representatives with primary
responsibility for judicial and criminal justice issues. The report
shall cover all of the following:
(a) How pilot program participant counties were selected.
(b) The different types of law enforcement agencies in the
pilot program participant counties that engaged in roadside drug
testing.
(c) Relevant statistical data, including, but not limited to,
the following:
(i) The number of traffic stops resulting in an arrest for
operating under the influence of a controlled substance in
violation of section 625 as a result of roadside drug testing by a
certified drug recognition expert.
(ii) The number and type of convictions resulting from an
arrest made based on the result of a roadside drug test by a
certified drug recognition expert.
(8) As used in this section:
(a) "Certified drug recognition expert" means a law
enforcement officer trained to recognize impairment in a driver
under the influence of a controlled substance rather than, or in
addition to, alcohol.
(b) "Controlled substance" means that term as defined in
section 7104 of the public health code, 1978 PA 368, MCL 333.7104.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.