HB-4789, As Passed House, June 13, 2007

SUBSTITUTE FOR

HOUSE BILL NO. 4789

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 81101, 81134, 81136, 81137, 81140, 81141, and

81144 (MCL 324.81101, 324.81134, 324.81136, 324.81137, 324.81140,

324.81141, and 324.81144), section 81101 as amended by 2004 PA 587,

section 81134 as amended by 2001 PA 12, sections 81136 and 81141 as

amended by 1996 PA 175, and sections 81137, 81140, and 81144 as

added by 1995 PA 58, and by adding section 81140b; and to repeal

acts and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 81101. As used in this part:

     (a) "Alcoholic liquor" means that term as defined in section

1d of the Michigan vehicle code, 1949 PA 300, MCL 257.1d.

(b) (a) "ATV" means a 3- or 4-wheeled vehicle designed for

off-road use that has low-pressure tires, has a seat designed to be

straddled by the rider, and is powered by a 50cc to 500cc gasoline

engine or an engine of comparable size using other fuels.

(c) (b) "Code" means the Michigan vehicle code, 1949 PA 300,

MCL 257.1 to 257.923.

(d) (c) "Dealer" means a person engaged in the sale, lease, or

rental of an ORV as a regular business or, for purposes of selling

licenses under section 81116, any other person authorized by the

department to sell licenses or permits, or both, under this act.

(e) (d) "Designated", unless the context implies otherwise,

means posted open for ORV use with appropriate signs by the

department.

(f) (e) "Forest road" means a hard surfaced road, gravel or

dirt road, or other route capable of travel by a 2-wheel drive, 4-

wheel conventional vehicle designed for highway use, except an

interstate, state, or county highway.

(g) (f) "Forest trail" means a designated path or way capable

of travel only by a vehicle less than 50 inches in width.

(h) (g) "Highway" means the entire width between the boundary

lines of a way publicly maintained when any part of the way is open

to the use of the public for purposes of vehicular travel.

(i) (h) "Highly restricted personal information" means an

individual's photograph or image, social security number, digitized

signature, and medical and disability information.

(j) (i) "Late model ORV" means an ORV manufactured in the

current model year or the 5 model years immediately preceding the

current model year.

(k) (j) "Manufacturer" means a person, partnership,

corporation, or association engaged in the production and

manufacture of ORVs as a regular business.

(l) (k) "Off-road vehicle account" means the off-road vehicle

account of the Michigan conservation and recreation legacy fund

provided for in section 2015.

(m) (l) "Operate" means to ride in or on, and be in actual

physical control of, the operation of an ORV.

(n) (m) "Operator" means a person who operates or is in actual

physical control of the operation of an ORV.

(o) (n) "ORV" or "vehicle" means a motor driven off-road

recreation vehicle capable of cross-country travel without benefit

of a road or trail, on or immediately over land, snow, ice, marsh,

swampland, or other natural terrain. ORV or vehicle includes, but

is not limited to, a multitrack or multiwheel drive vehicle, an

ATV, a motorcycle or related 2-wheel, 3-wheel, or 4-wheel vehicle,

an amphibious machine, a ground effect air cushion vehicle, or

other means of transportation deriving motive power from a source

other than muscle or wind. ORV or vehicle does not include a

registered snowmobile, a farm vehicle being used for farming, a

vehicle used for military, fire, emergency, or law enforcement

purposes, a vehicle owned and operated by a utility company or an

oil or gas company when performing maintenance on its facilities or

on property over which it has an easement, a construction or

logging vehicle used in performance of its common function, or a

registered aircraft.

(p) (o) "Owner" means any of the following:

     (i) A vendee or lessee of an ORV which is the subject of an

agreement for the conditional sale or lease of the ORV, with the

right of purchase upon performance of the conditions stated in the

agreement, and with an immediate right of possession vested in the

conditional vendee or lessee.

     (ii) A person renting an ORV, or having the exclusive use of an

ORV, for more than 30 days.

     (iii) A person who holds legal ownership of an ORV.

(q) (p) "Person with disabilities" means a person who has 1 or

more of the following physical characteristics:

     (i) Blindness.

     (ii) Inability to ambulate more than 200 feet without having to

stop and rest during any time of the year.

     (iii) Loss of use of 1 or both legs or feet.

     (iv) Inability to ambulate without the prolonged use of a

wheelchair, walker, crutches, braces, or other device required to

aid mobility.

     (v) A lung disease from which the person's expiratory volume

for 1 second, when measured by spirometry, is less than 1 liter, or

from which the person's arterial oxygen tension is less than 60

mm/hg of room air at rest.

     (vi) A cardiovascular disease from which the person measures

between 3 and 4 on the New York heart classification scale, or from

which a marked limitation of physical activity causes fatigue,

palpitation, dyspnea, or anginal pain.

     (vii) Other diagnosed disease or disorder including, but not

limited to, severe arthritis or a neurological or orthopedic

impairment that creates a severe mobility limitation.

(r) (q) "Personal information" means information that

identifies an individual, including an individual's driver

identification number, name, address not including zip code, and

telephone number, but does not include information on ORV operation

or equipment-related violations or civil infractions, operator or

vehicle registration status, accidents, or other behaviorally-

related information.

(s) (r) "Public agency" means the department or a local or

federal unit of government.

(t) (s) "Roadway" means that portion of a highway improved,

designated, or ordinarily used for vehicular travel. If a highway

includes 2 or more separate roadways, the term roadway refers to a

roadway separately, but not to all roadways collectively.

(u) (t) "Route" means a forest road or other road that is

designated for purposes of this part by the department.

(v) (u) "Safety chief instructor" means a person who has been

certified by a nationally recognized ATV and ORV organization to

certify instructors and to do on-sight evaluations of instructors.

(w) (v) "Visual supervision" means the direct observation of

the operator with the unaided or normally corrected eye, where the

observer is able to come to the immediate aid of the operator.

     Sec. 81134. (1) A person who shall not operate an ORV if any

of the following apply:

     (a) The person is under the influence of intoxicating

alcoholic liquor or a controlled substance, as defined by section

7104 of the public health code, 1978 PA 368, MCL 333.7104, or a

combination of intoxicating liquor and a controlled substance.

shall not operate an ORV.

(b) (2) A The person who has an 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. shall not operate an ORV.

(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) (3) The owner or person in charge or in control of an ORV

shall not authorize or knowingly permit the ORV to be operated 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 a combination of

intoxicating alcoholic liquor and a controlled substance.

     (b) The person has a blood alcohol content of 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 an ORV is visibly impaired

due to the consumption of an alcoholic liquor, a controlled

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

substance.

     (3) A person shall not operate an ORV if, due to the

consumption of alcoholic liquor, a controlled substance, as defined

by section 7104 of the public health code, 1978 PA 368, MCL

333.7104, or a combination of alcoholic liquor and a controlled

substance, the person's ability to operate an ORV is visibly

impaired. If a person is charged with violating subsection (1), a

finding of guilty is permissible under this subsection.

     (4) Except as otherwise provided in this section, a person who

is convicted of a violation of subsection (1) , (2), or (3) 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, together with costs of the prosecution. As part

of the sentence for a violation of subsection (1), or (2), the

court shall order the person convicted not to operate an ORV for a

period of not less than 6 months or more than 2 years. A person who

is convicted of violating subsection (3) is guilty of a misdemeanor

punishable by imprisonment for not more than 93 days or a fine of

not more than $300.00, or both, together with the costs of

prosecution. As part of the sentence for a violation of subsection

(3), the court shall order the person convicted not to operate an

ORV for a period of not less than 93 days or more than 1 year.

     (5) On a second conviction under subsection (1) or (2) (3) or

a local ordinance substantially corresponding to subsection (1) or

(2) (3) within a period of 7 years, a person is guilty of a

misdemeanor , punishable by imprisonment for not more than 1 year ,

or a fine of not more than $1,000.00, or both. As part of the

sentence for a violation of subsection (1), the court shall order

the person convicted not to operate an ORV for a period of not less

than 1 year or more than 2 years. As part of the sentence for a

violation of subsection (3), the court shall order the person

convicted not to operate an ORV for a period of not less than 6

months or more than 18 months.

     (6) On a third or subsequent conviction within a any period of

10 years under subsection (1) or (2) (3) or a local ordinance

substantially corresponding to subsection (1) or (2) (3), a 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 $5,000.00, or both. As part of the

sentence for a violation of subsection (1), the court shall order

the person convicted not to operate an ORV for a period of not less

than 1 year or more than 2 years. As part of the sentence for a

violation of subsection (3), the court shall order the person

convicted not to operate an ORV for a period of not less than 1

year or more than 2 years.

     (7) A person who operates an ORV in violation of subsection

(1) or (2) or section 81135 (3) and by the operation of that ORV

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.

     (8) A person who operates an ORV within this state in

violation of subsection (1) or (2) or section 81135 (3) and by the

operation of that ORV 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.

     (9) A person who is convicted of violating subsection (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.

(10) (9) As part of the sentence for a violation of subsection

(1), or (2), or (3) or a local ordinance substantially

corresponding to subsection (1), or (2), or (3), the court may

order the person to perform service to the community, as designated

by the court, without compensation, for a period not to exceed 12

days. The person shall reimburse the state or appropriate local

unit of government for the cost of insurance incurred by the state

or local unit of government as a result of the person's activities

under this subsection.

(11) (10) Before imposing sentence for a violation of

subsection (1) or (2) (3) or a local ordinance substantially

House Bill No. 4789 (H-2) as amended June 13, 2007

corresponding to subsection (1) or (2) (3), the court shall order

the person to undergo screening and assessment by a person or

agency designated by the office of substance abuse services, to

determine whether the person is likely to benefit from

rehabilitative services, including alcohol or drug education and

alcohol or drug treatment programs. As part of the sentence, the

court may order the person to participate in and successfully

complete 1 or more appropriate rehabilitative programs. The person

shall pay for the costs of the screening, assessment, and

rehabilitative services.

(12) (11) Before accepting a plea of guilty under this

section, the court shall advise the accused of the statutory

consequences possible as the result of a plea of guilty in respect

to suspension of the person's right to operate an ORV and the

penalty imposed for violation of this section.

(13) (12) Each municipal judge and each clerk of a court of

record shall keep a full record of every case in which a person is

charged with a violation of this section. The municipal judge or

clerk of the court of record shall prepare and immediately forward

to the secretary of state an abstract of the court of record for

each case charging a violation of this section.

     Sec. 81136. (1) In a criminal prosecution for violating

section 81134 or 81135 or a local ordinance substantially

corresponding to section 81134, or 81135, or in a criminal

prosecution for negligent homicide [or manslaughter, manslaughter, or

 murder] resulting from

the operation of an ORV while the operator is alleged to have been

impaired by or under the influence of intoxicating alcoholic liquor

House Bill No. 4789 (H-2) as amended June 13, 2007

or a controlled substance or a combination of intoxicating

alcoholic liquor and a controlled substance, or to have 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 to

 have had 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,]

the amount of alcohol or [ ] controlled substance in the

operator's blood at the time alleged as shown by chemical analysis

of the operator's blood, urine, or breath shall be is admissible

into evidence.

     (2) If a chemical test of an operator's blood, urine, or

breath is given, the results of the test shall be made available to

the person charged with an offense enumerated in subsection (1) 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 report at least 2 days before the day of the trial and

the results shall be offered as evidence by the prosecution in a

criminal proceeding. Failure to fully comply with the request shall

bar the admission of the results into evidence by the prosecution.

     (3) Except in a prosecution relating solely to a violation of

section 81134(2), the amount of alcohol in the operator's blood at

the time alleged as shown by chemical analysis of the operator's

blood, urine, or breath shall give rise to the following

presumptions:

     (a) If at the time the operator 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 operator was not under the influence of intoxicating liquor.

     (b) If at the time the operator 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 operator's ability to operate an ORV was

impaired within the provisions of section 81135 due to the

consumption of intoxicating liquor.

     (c) If at the time the operator 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 operator was under the influence of intoxicating liquor.

(3) (4) A sample or specimen of urine or breath shall be taken

and collected in a reasonable manner. Only a licensed physician, or

a licensed nurse or medical technician under the direction of a

licensed physician and qualified to withdraw blood acting in a

medical environment, at the request of a peace officer, may

withdraw blood for the purpose of determining the alcoholic content

of the blood under this part. Liability for a crime or civil

damages predicated on the act of withdrawing blood and related

procedures shall not attach to a qualified person who withdraws

blood or assists in the withdrawal in accordance with this part

unless the withdrawal is performed in a negligent manner.

(4) (5) A person arrested for a crime enumerated in subsection

(1) who takes a chemical test administered at the request of a

peace officer, as provided in this part, 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 section within

a reasonable time after his or her detention, and the results of

the test shall be admissible and shall be considered with other

House Bill No. 4789 (H-2) as amended June 13, 2007

competent evidence in determining the defendant's innocence or

guilt of a crime enumerated in subsection (1). If the person

arrested is administered a chemical test by a person of his or her

own choosing, the person arrested shall be responsible for

obtaining a chemical analysis of the test sample. The person shall

be informed that he or she has the right to demand that a person of

his or her choosing administer 1 of the chemical tests described in

this section, that the results of the test shall be admissible and

shall be considered with other competent evidence in determining

the innocence or guilt of the defendant, and that the person

arrested shall be responsible for obtaining a chemical analysis of

the test sample.

(5) (6) A person arrested shall be advised that if the person

refuses the request of a peace officer to take a test described in

this section, a test shall not be given without a court order. The

person arrested shall also be advised that the person's refusal of

the request of a peace officer to take a test described in this

section shall result in the suspension of the person's right to

operate an ORV.

(6) (7) This section shall not be construed as limiting the

introduction of any other competent evidence bearing upon the

question of whether or not the defendant was impaired by or under

the influence of intoxicating alcoholic liquor or a controlled

substance, or a combination of intoxicating alcoholic liquor and a

controlled substance, 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 had 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].

(7) (8) If a jury instruction regarding a defendant's refusal

to submit to a chemical test under this section is requested by the

prosecution or the defendant, the jury instruction shall be given

as follows:

     "Evidence was admitted in this case which, if believed by the

jury, could prove that the defendant had exercised his or her right

to refuse a chemical test. You are instructed that such a refusal

is within the statutory rights of the defendant and is not evidence

of the defendant's guilt. You are not to consider such a refusal in

determining the guilt or innocence of the defendant.".

(8) (9) If after an accident the operator of an ORV involved

in the accident is transported to a medical facility and a sample

of the operator's blood is withdrawn at that time for the purpose

of medical treatment, the results of a chemical analysis of that

sample shall be admissible in a criminal prosecution for a crime

described in subsection (1) to show the amount of alcohol or

presence of a controlled substance, or both, 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 subsection. A

medical facility or person disclosing information in compliance

with this subsection shall not be civilly or criminally liable for

making the disclosure.

(9) (10) If after an accident the operator of an ORV involved

in the accident is deceased, a sample of the decedent's blood shall

House Bill No. 4789 (H-2) as amended June 13, 2007

be withdrawn in a manner directed by the medical examiner for the

purpose of determining blood alcohol content or presence of a

controlled substance, or both. The medical examiner shall give the

results of the chemical analysis to the law enforcement agency

investigating the accident, and that agency shall forward the

results to the department of state police.

     Sec. 81137. (1) Except as provided in subsection (2), a person

who operates an ORV 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, and may be requested by a

peace officer to submit 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 if:

     (a) The person is arrested for a violation of section

81134(1), or (2) or 81135 (3), (6), (7), or (8) or a local

ordinance substantially corresponding to section 81134(1) or (2) or

81135 (3).

     (b) The person is arrested for negligent homicide [or

manslaughter, manslaughter, or murder] resulting from the operation of an

ORV, and the peace

officer has reasonable grounds to believe that the person was

operating the ORV [while impaired by or under the influence of

intoxicating liquor, a controlled substance, or a

combination of intoxicating liquor and a controlled

substance. in violation of section 81134.]

     (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.

     Sec. 81140. (1) If a person who refuses to submit to a

chemical test pursuant to under section 81138 does not request an

administrative hearing within 14 days after the date of notice

pursuant to under section 81139, the secretary of state shall

suspend the person's right to operate an ORV for a period of 6

months 1 year, or for a second or subsequent refusal within a

period of 7 years, for 1 year 2 years.

     (2) If an administrative hearing is requested, the secretary

of state shall appoint a hearing officer to conduct the hearing.

Not less than 10 days' notice of the hearing shall be provided by

mail to the person submitting the request, to the peace officer who

filed the report under section 81138, and, if a 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 and issue subpoenas for the attendance

of necessary witnesses, and may grant a reasonable request for an

adjournment. The hearing shall cover only the following issues:

     (a) Whether the peace officer had reasonable grounds to

believe that the person committed a crime described in section

81137(1).

     (b) Whether the person was placed under arrest for a crime

described in section 81137(1).

     (c) Whether the person reasonably refused to submit to a

chemical test upon request of the officer.

     (d) Whether the person was advised of his or her rights under

section 81136.

     (3) An administrative hearing conducted under this section is

not a contested case for the purposes of chapter 4 sections 71 to

87 of the administrative procedures act of 1969, Act No. 306 of the

Public Acts of 1969, being sections 24.271 to 24.287 of the

Michigan Compiled Laws 1969 PA 306, MCL 24.271 to 24.287. The

hearing shall be conducted in an impartial manner. A final decision

or order of a hearing officer shall be made in writing or stated in

the record, and shall include findings of fact based exclusively on

the evidence presented and matters officially noticed, and shall

specify any sanction to be imposed against the person involved. A

copy of the final decision or order shall be delivered or mailed

immediately to the person and the peace officer.

     (4) After the administrative hearing, if the person is found

to have unreasonably refused to submit to a chemical test, the

secretary of state shall suspend the person's right to operate an

ORV for a period of 6 months 1 year, or for a second or subsequent

refusal within a period of 7 years, for 1 year 2 years. Within 60

days after the final decision or order is issued by the hearing

officer, the person may file a petition in the circuit court of the

county in which the arrest was made to review the suspension. If

after the hearing the person who requested the hearing prevails,

the peace officer who filed the report under section 81138 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 81140b. The scope of the court's review shall be limited to

the issues provided in section 106 of Act No. 306 of the Public

Acts of 1969, being section 24.306 of the Michigan Compiled Laws

the administrative procedure act of 1969, 1969 PA 306, MCL 24.306.

     (5) The circuit court shall enter an order setting the cause

for hearing for a date certain that is not more than 60 days after

the date of the order. The order, a copy of the petition, which

shall include 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

50 days before the date set for the hearing. The department shall

cause a record to be made of the proceedings held pursuant to under

subsection (2). The record shall be prepared and transcribed in

accordance with section 86 of Act No. 306 of the Public Acts of

1969, being section 24.286 of the Michigan Compiled Laws the

administrative procedure act of 1969, 1969 PA 306, MCL 24.286. Upon

notification of the filing of a petition for judicial review, the

department shall transmit to the court in which the petition was

filed, not less than 10 days before the matter is set for review,

the original or a certified copy of the official record of the

proceedings.

Sec. 81140b. (1) A person who is aggrieved by a final

determination of the secretary of state under this part may

petition for a review of the determination in the circuit court in

the county where the person was arrested. The petition shall be

filed within 63 days after the determination is made except that,

for good cause shown, the court may allow the petition to be filed

within 182 days after the determination is made. As provided in

section 81140, a peace officer who is aggrieved by a determination

of a hearing officer in favor of a person who requested a hearing

under section 81140 may, with the consent of the prosecuting

attorney, petition for review of the determination in the circuit

court in the county where the arrest was made. The petition shall

be filed within 63 days after the determination is made except

that, for good cause shown, the court may allow the petition to be

filed 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 that is not more than 63 days after the date of the order.

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 under section 81140, 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 incident to the order that the person not operate an

ORV in this state. The court may affirm, modify, or set aside the

order. The order of the court shall be duly entered, 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 under section 81140, the court shall confine its

consideration to a review of the record prepared under section

81140 to determine whether the hearing officer properly determined

the issues enumerated in section 81140.

     (5) In reviewing a determination resulting in issuance of an

order under section 81134(6), (7), (8), or (9), the court shall

confine its consideration to a review of the record prepared under

section 81140. The court shall set aside the determination of the

secretary of state only if substantial rights of the petitioner

have been prejudiced because the determination is any of the

following:

     (a) In violation of the constitution of the United States, the

state constitution of 1963, or a statute.

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

or jurisdiction.

     (c) Made upon unlawful procedure resulting in material

prejudice to the petitioner.

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

evidence on the whole record.

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

exercise of discretion.

     (f) Affected by other substantial and material error of law.

     Sec. 81141. (1) A peace officer who has reasonable cause to

believe that a person was operating an ORV and that the person by

the consumption of intoxicating alcoholic liquor may have affected

his or her ability to operate the ORV, may require the person to

submit to a preliminary chemical breath analysis.

     (2) A peace officer may arrest a person based in whole or in

part upon the results of a preliminary chemical breath analysis.

     (3) The results of a preliminary chemical breath analysis

shall be admissible in a criminal prosecution for a crime

enumerated in section 81136(1) or in an administrative hearing held

under section 81140, solely to assist the court or hearing officer

in determining a challenge to the validity of an arrest. This

subsection does not limit the introduction of other competent

evidence offered to establish the validity of an arrest.

     (4) A person who submits to a preliminary chemical breath

analysis shall remain remains subject to the requirements of

sections 81136, 81137, 81138, 81139, and 81140 for the purposes of

chemical tests described in those sections.

     (5) 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 $100.00 $500.00.

     Sec. 81144. If a peace officer has reasonable cause to believe

that a person was, at the time of an accident, the operator of an

ORV involved in the accident and was operating the ORV while under

the influence of an intoxicating alcoholic liquor, a controlled

substance as defined in section 7104 of the public health code, Act

No. 368 of the Public Acts of 1978, being section 333.7104 of the

Michigan Compiled Laws 1978 PA 368, MCL 333.7104, or a combination

of intoxicating alcoholic liquor and a controlled substance, or was

operating the ORV while his or her ability to operate an ORV was

impaired due to the consumption of intoxicating alcoholic liquor, a

controlled substance, or a combination of intoxicating alcoholic

liquor and a controlled substance, the peace officer may arrest the

alleged operator of the ORV without a warrant.

     Enacting section 1. Section 81135 of the natural resources and

environmental protection act, 1994 PA 451, MCL 324.81135, is

repealed.

     Enacting section 2. This amendatory act takes effect January

1, 2008.