May 17, 2007, Introduced by Reps. Scott, Bieda, Condino, Hood, Angerer, Vagnozzi, Jackson, Kathleen Law, LeBlanc, Bauer, Alma Smith, Lahti, Clemente, Cheeks, Polidori, Hune, Rick Jones and Johnson and referred to the Committee on Judiciary.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 81101, 81134, 81136, 81137, 81141, and 81144
(MCL 324.81101, 324.81134, 324.81136, 324.81137, 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 and 81144 as added by 1995 PA 58;
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. 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 crime as follows:
(a) Except as provided in subdivisions (b) and (c), 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.
(b) If the person operating the ORV violated subsection (7), a
felony punishable by imprisonment for not more than 5 years or a
fine of not less than $1,500.00 or more than $5,000.00, or both.
(c) If the person operating the ORV violated subsection (8), a
felony punishable by imprisonment for not more than 2 years or a
fine of not less than $1,000.00 or more than $5,000.00, 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
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 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
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,
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 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
bars 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
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.
(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 is 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
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 or a local ordinance substantially corresponding to
section 81134(1) or (2) or 81135.
(b) The person is arrested for negligent homicide or
manslaughter 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
alcoholic liquor, a controlled substance, or a
combination
of intoxicating alcoholic liquor and a controlled
substance.
(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 is not be considered to have given consent to
the withdrawal of blood.
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 are 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
relevant 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.
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.