HB-4794, As Passed House, June 13, 2007

SUBSTITUTE FOR

HOUSE BILL NO. 4794

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 80101, 80171, 80176, 80177, 80178, 80180,

80183, 80184, 80186, 80187, and 80190 (MCL 324.80101, 324.80171,

324.80176, 324.80177, 324.80178, 324.80180, 324.80183, 324.80184,

324.80186, 324.80187, and 324.80190), section 80101 as amended by

2004 PA 547, sections 80171, 80186, and 80190 as added by 1995 PA

58, sections 80176, 80177, and 80178 as amended by 2001 PA 12,

section 80180 as amended by 2007 PA 8, and sections 80183, 80184,

and 80187 as amended by 1996 PA 174.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 80101. As used in this part:

     (a) "Airboat" means a motorboat that is propelled, wholly or

in part, by a propeller projecting above the water surface.

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

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

(c) (b) "Anchored rafts" means all types of nonpowered rafts

used for recreational purposes that are anchored seasonally on

waters of this state.

(d) (c) "Associated equipment" means any of the following that

are not radio equipment:

     (i) An original system, part, or component of a boat at the

time that boat was manufactured, or a similar part or component

manufactured or sold for replacement.

     (ii) Repair or improvement of an original or replacement

system, part, or component.

     (iii) An accessory or equipment for, or appurtenance to, a boat.

     (iv) A marine safety article, accessory, or equipment intended

for use by a person on board a boat.

(e) (d) "Boat" means a vessel.

(f) (e) "Boat livery" means a business that holds a vessel for

renting, leasing, or chartering.

(g) (f) "Controlled substance" means that term as defined in

section 7104 of the public health code, 1978 PA 368, MCL 333.7104.

(h) (g) "Conviction" means a final conviction, the payment of

a fine, a plea of guilty or nolo contendere if accepted by the

court, a finding of guilt, or a probate court disposition on a

violation of this part, regardless of whether the penalty is

rebated or suspended.

     Sec. 80171. Unless otherwise specified under this part, a

violation of this part or rules promulgated under this part is a

misdemeanor. A political subdivision having adopted a local

ordinance in conformity with this part may provide that any

violation of the ordinance is a misdemeanor. Any person convicted

of reckless operation of a vessel as defined in section 80147, or

of operating a vessel while under the influence of intoxicating

alcoholic liquor or narcotic drugs, or with 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, in his or her body, in addition to any other

penalty, may be refused by the court having jurisdiction of the

violation the right of operating any vessel on any of the waters of

this state for a period of not more than 2 years.

     Sec. 80176. (1) A person shall not operate a vessel on the

waters of this state if either any of the following applies apply:

     (a) The person is under the influence of intoxicating

alcoholic liquor or a controlled substance, or both.

     (b) The person has 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.

(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) The owner of a vessel or a person in charge or in control

of a vessel shall not authorize or knowingly permit the vessel to

be operated on the waters of this state 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 both. , or who

(b) The person has 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.

(c) The person's ability to operate the vessel is visibly

impaired due to the consumption of alcoholic liquor, a controlled

substance, or a combination of alcoholic liquor and a controlled

substance.

     (3) A person shall not operate a vessel on the waters of this

state when, due to the consumption of an intoxicating alcoholic

liquor or a controlled substance, or both, the person's ability to

operate the vessel 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 who operates a vessel on the waters of this state

under the influence of intoxicating alcoholic liquor or a

controlled substance, or both, or with 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 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, and by the operation of

that vessel 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.

     (5) A person who operates a vessel on the waters of this state

under the influence of intoxicating liquor or a controlled

substance, or both, or with a blood alcohol content of 0.10 grams

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

per 67 milliliters of urine, in violation of subsection (1) or (3)

and by the operation of that vessel 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.

     Sec. 80177. (1) If a person is convicted of violating section

80176(1), the following apply:

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

the person is guilty of a misdemeanor and shall be punished by 1 or

more of the following:

     (i) Community service for not more than 45 days.

     (ii) Imprisonment for not more than 93 days.

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

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

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

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

following:

     (i) Community service for not less than 10 days or more than 90

days, and may be imprisoned for not more than 1 year.

     (ii) Imprisonment for not less than 48 consecutive hours or

more than 1 year, and may be sentenced to community service for not

more than 90 days.

     (c) If the violation occurs within 10 years of after 2 or more

prior convictions 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 imprisonment for not less than 1

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

more than $5,000.00, or both.

     (2) A term of imprisonment imposed under subdivision (b)(ii)

shall not be suspended. A person sentenced to perform service to

the community 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.

     (3) In addition to the sanctions prescribed under subsection

(1) and section 80176(4) and (5), the court may, pursuant to the

code of criminal procedure, 1927 PA 175, MCL 760.1 to 777.69, order

the person to pay the costs of the prosecution. The court shall

also impose sanctions under sections 80185 and 80186.

     (4) A person who is convicted of violating section 80176(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.

     (5) As used in this section, "prior conviction" means a

conviction for a violation of any of the following:

     (a) Section 80176(1), (4), or (5).

     (b) Former section 171(1), (4), or (5) of the marine safety

act.

     (c) Former section 73 of the marine safety act.

     (d) A local ordinance substantially corresponding to section

80176(1) or former section 73 of the marine safety act.

     (e) A law of another state substantially corresponding to

section 80176(1), (4), or (5) or former section 73 of the marine

safety act.

     Sec. 80178. (1) If a person is convicted of violating section

80176(3), 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 45 days.

     (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 both a fine of not

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

following:

     (i) Community service for not less than 10 days or more than 90

days, and may be sentenced to imprisonment for not more than 1

year.

     (ii) Imprisonment for not more than 1 year, and may be

sentenced to community service for not more than 90 days.

     (c) If the violation occurs within 10 years of after 2 or more

prior convictions regardless of the number of years that have

elapsed since any prior conviction, the person shall be sentenced

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

either of the following:

     (i) Community service for a period of not less than 10 days or

more than 90 days, and may be sentenced to imprisonment for not

more than 1 year.

     (ii) Imprisonment for not more than 1 year, and may be

sentenced to community service for not more than 90 days.

     (2) In addition to the sanctions prescribed in subsection (1),

the court may, pursuant to the code of criminal procedure, 1927 PA

175, MCL 760.1 to 777.69, order the person to pay the costs of the

prosecution. The court shall also impose sanctions under sections

80185 and 80186.

     (3) A person sentenced to perform service to the community

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.

     (4) As used in this section, "prior conviction" means a

conviction for a violation of any of the following:

     (a) Section 80176(1), (3), (4), or (5).

     (b) Former section 171(1) of the marine safety act.

     (c) Former section 73 of the marine safety act.

     (d) Former section 73b of the marine safety act.

     (e) A local ordinance substantially corresponding to section

80176(1), former section 73 of the marine safety act, or former

section 73b of the marine safety act.

     (f) A law of another state substantially corresponding to

section 80176(1), (3), (4), or (5), former section 73 of the marine

safety act, or former section 73b of the marine safety act.

     Sec. 80180. (1) A peace officer, without a warrant, may arrest

a person if the peace officer has reasonable cause to believe that

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

vessel involved in the accident in this state while in violation of

section 80176(1), (3), (4), or (5) or a local ordinance

substantially corresponding to section 80176(1) or (3).

     (2) A peace officer who has reasonable cause to believe that a

person was operating a vessel on the waters of this state, and

that, by the consumption of intoxicating alcoholic liquor, the

person may have affected his or her ability to operate a vessel,

may require the person to submit to a preliminary chemical breath

analysis. The following apply with respect to a preliminary

chemical breath analysis:

     (a) Only a peace officer who has successfully completed a

training course taught by a state-certified instructor in the

administration of the preliminary chemical breath analysis may

administer that test.

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

part upon the results of a preliminary chemical breath analysis.

     (c) The results of a preliminary chemical breath analysis are

admissible in a criminal prosecution for a crime described in

section 80187(1) or in an administrative hearing solely to assist

the court or hearing officer in determining a challenge to the

validity of an arrest. This subdivision does not limit the

introduction of other competent evidence offered to establish the

validity of an arrest.

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

analysis remains subject to the requirements of sections 80187 to

80190 for the purposes of chemical tests described in those

sections.

     (e) 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 $500.00.

     (3) A peace officer making an arrest under this part shall

take measures to assure that the vessel and its occupants are

safely returned to shore.

     (4) If, not more than 60 days after the issuance of a citation

for a state civil infraction under this section, the person to whom

the citation is issued is not charged with a violation of section

80176(1), (3), (4), or (5) or a local ordinance substantially

corresponding to section 80176(1) or (3), the citation issued for

the state civil infraction is void. Upon application of the person

to whom the citation is issued, money paid by the person as a fine,

costs, or otherwise shall be immediately returned.

     Sec. 80183. (1) The provisions of sections 80181 and 80182

relating to chemical testing do not limit the introduction of any

other competent evidence bearing upon the question of whether or

not a person was impaired by, or under the influence of,

intoxicating alcoholic liquor or a controlled substance, or both,

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 whether the person had

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, in his or her body.

     (2) If a chemical test described in sections 80181 and 80182

is administered, the results of the test 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 results of the test shall be offered as

evidence by the prosecution in that trial. Failure to fully comply

with the request bars the admission of the results into evidence by

the prosecution.

     Sec. 80184. (1) Except in a prosecution relating solely to a

violation of section 80176(1)(b), the amount of alcohol in the

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

of the person's blood, urine, or breath gives rise to the following

presumptions:

     (a) If at the time defendant 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 defendant's ability to operate a vessel was not impaired due to

the consumption of intoxicating liquor and that the defendant was

not under the influence of intoxicating liquor.

     (b) If at the time defendant 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 defendant's ability to operate a vessel

was impaired within the provisions of section 80176(3) due to the

consumption of intoxicating liquor.

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

     (2) A person's refusal to submit to a chemical test as

provided in sections 80181 and 80182 is admissible in a criminal

prosecution for a crime described in section 80187(1) only for the

purpose of showing that a test was offered to the defendant, but

not as evidence in determining innocence or guilt of the defendant.

The jury shall be instructed accordingly.

     Sec. 80186. (1) Immediately upon acceptance by the court of a

plea of guilty or nolo contendere or upon entry of a verdict of

guilty for a violation of section 80176(1), (3), (4), or (5) or a

local ordinance substantially corresponding to section 80176(1) or

(3), whether or not the person is eligible to be sentenced as a

multiple offender, the court shall consider all prior convictions

currently entered upon the boating record of the person or other

evidence of prior convictions established under section 80179,

except those convictions that, upon motion by the defendant, are

determined by the court to be constitutionally invalid, and shall

impose the following sanctions:

     (a) For a conviction under section 80176(4) or (5), the court

shall order with no expiration date that the person not operate a

vessel on the waters of this state.

     (b) For a conviction under section 80176(1) or a local

ordinance substantially corresponding to section 80176(1):

     (i) If the court finds that the person has no prior convictions

within 7 years for a violation of section 80176(1), (3), (4), or

(5), former section 171(1), (3), (4), or (5), or another boating

substance abuse offense, or that the person has 1 prior conviction

within 7 years for a violation of section 80176(3); former section

171(3) of the marine safety act; former section 73b of the marine

safety act; a local ordinance substantially corresponding to

section 80176(3) or former section 73b of the marine safety act; or

a law of another state substantially corresponding to section

80176(3) or former section 73b of the marine safety act, the court

may order that the person not operate a vessel on the waters of

this state for not less than 1 year or more than 2 years.

     (ii) If the court finds that the person has 1 or more prior

convictions within 7 years for a violation of section 80176(1),

(3), (4), or (5); former section 73 of the marine safety act; a

local ordinance substantially corresponding to section 80176(1) or

former section 73 of the marine safety act; or a law of another

state substantially corresponding to section 80176(1), (4), or (5)

or former section 73 of the marine safety act, the court shall

order that the person not operate a vessel on the waters of this

state for not less than 2 years.

     (iii) If the court finds that the person has 2 or more prior

convictions within 10 any period of years for a violation of

section 80176(1), (3), (4), or (5) or former section 171(1), (3),

(4), or (5) or another boating substance abuse offense, the court

shall order with no expiration date that the person not operate a

vessel on the waters of this state.

     (c) For a conviction under section 80176(3) or a local

ordinance substantially corresponding to section 80176(3):

     (i) If the court finds that the convicted person has no prior

conviction within 7 years for a violation of section 80176(1), (3),

(4), or (5) or former section 171(1), (3), (4), or (5) or another

boating substance abuse offense, the court may order that the

person not operate a vessel on the waters of this state for not

less than 6 months or more than 1 year.

     (ii) If the court finds that the person has 1 prior conviction

within 7 years for a violation of section 80176(1), (3), (4), or

(5) or former section 171(1), (3), (4), or (5) or another boating

substance abuse offense, the court shall order that the person not

operate a vessel on the waters of this state for not less than 1

year or more than 2 years.

     (iii) If the court finds that the person has 2 or more prior

convictions within 10 any period of years for a violation of

section 80176(1), (3), (4), or (5) or former section 171(1), (3),

(4), or (5) or another boating substance abuse offense, the court

shall order with no expiration date that person not to operate a

vessel on the waters of this state.

     (2) As used in this section, "another boating substance abuse

offense" means former section 73 or 73b of the marine safety act, a

local ordinance substantially corresponding to section 80176(1) or

(3) or former section 73 or 73b of the marine safety act, or a law

of another state substantially corresponding to section 80176(1),

(3), (4), or (5) or former section 73 or 73b of the marine safety

act.

     Sec. 80187. (1) A person who operates a vessel on the waters

of this state 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 in all of the following

circumstances:

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

House Bill No. 4794 (H-2) as amended June 13, 2007

80176(1), (3), (4), or (5), or a local ordinance substantially

corresponding to section 80176(1) or (3).

     (b) The person is arrested for negligent homicide,

manslaughter, or murder resulting from the operation of a vessel,

and the peace officer had reasonable grounds to believe that the

person was operating the vessel [while impaired by, or under the

influence of, intoxicating liquor or a controlled

substance, or both, or while having a blood alcohol content of 0.10

grams or more per 100 milliliters of blood, per 210 liters of

breath, or per 67 milliliters of urine in violation of section

80176.

]

     (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.

     (3) A chemical test described in subsection (1) shall be

administered as provided in sections 80181 and 80182.

     Sec. 80190. (1) If a person who refuses to submit to a

chemical test pursuant to section 80181 or 80182 does not request a

hearing within 14 days of the date of notice pursuant to section

80189, the secretary of state shall issue an order that the person

not operate a vessel on the waters of this state for 6 months 1

year or, for a second or subsequent refusal within 7 years, for 1

year 2 years.

     (2) If a hearing is requested, the secretary of state shall

hold the hearing in the same manner and under the same conditions

as provided in section 322 of the Michigan vehicle code, Act No.

300 of the Public Acts of 1949, being section 257.322 of the

Michigan Compiled Laws 1949 PA 300, MCL 257.322. A person shall not

order a hearing officer to make a particular finding on any issue

enumerated under subdivisions (a) to (d). Not less than 5 days'

notice of the hearing shall be mailed to the person requesting the

hearing, to the peace officer who filed the report under section

80188, and, if the 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, issue subpoenas

for the attendance of necessary witnesses, and grant a reasonable

request for an adjournment. Not more than 1 adjournment shall be

granted to a party, and the length of an adjournment shall not

exceed 14 days. A hearing under this subsection shall be scheduled

to be held within 45 days after the date of arrest and, except for

delay attributable to the unavailability of the defendant, a

witness, or material evidence or to an interlocutory appeal or

exceptional circumstances, but not for delay attributable to docket

congestion, shall be finally adjudicated within 77 days after the

date of arrest. The hearing shall cover only the following issues:

     (a) Whether the peace officer had reasonable grounds to

believe that the person had committed a crime described in section

80187(1).

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

described in section 80187(1).

     (c) If the person refused to submit to the test upon the

request of the officer, whether the refusal was reasonable.

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

section 80181.

     (3) The hearing officer shall make a record of proceedings

held pursuant subsection (2). The record shall be prepared and

transcribed in accordance with section 86 of the administrative

procedures act of 1969, Act No. 306 of the Public Acts of 1969,

being section 24.286 of the Michigan Compiled Laws 1969 PA 306, MCL

24.286. Upon notification of the filing of a petition for judicial

review pursuant to section 80194 and not less than 10 days before

the matter is set for review, the hearing officer shall transmit to

the court in which the petition is filed the original or a

certified copy of the official record of the proceedings. The

parties to the proceedings for judicial review may stipulate that

the record be shortened. A party unreasonably refusing to stipulate

to a shortened record may be taxed by the court in which the

petition is filed for the additional costs. The court may permit

subsequent corrections to the record.

     (4) After a hearing, if the person who requested the hearing

does not prevail, the secretary of state shall order that the

person not operate a vessel on the waters of this state for 6

months 1 year or, for a second or subsequent refusal within 7

years, for 1 year 2 years. The person may file a petition in the

circuit court of the county in which the arrest was made to review

the order as provided in section 80194. If after the hearing the

person who requested the hearing prevails, the peace officer who

filed the report under section 80188 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 80194.

     Enacting section 1. This amendatory act takes effect January

1, 2008.