March 13, 2013, Introduced by Rep. Lori and referred to the Committee on Criminal Justice.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 80101, 80102, 80104, 80171, 80176, 80177,
80178, 80180, 80183, 80184, 80186, 80187, and 80190 (MCL 324.80101,
324.80102, 324.80104, 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 2012 PA 120, sections
80102, 80171, 80186, and 80190 as added by 1995 PA 58, section
80104 as amended by 2012 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, and by
adding sections 80178a and 80178b.
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)
"Boating safety
certificate" means any of the
following:
(i) The document issued by the department under part 802 that
certifies that the individual named in the document has
successfully completed a boating safety course and passed an
examination approved and administered as required under section
80212.
(ii) A document issued by the United States coast guard
auxiliary or United States power squadron that certifies that the
individual named in the document has successfully completed a
United States coast guard auxiliary course concerning boating
safety.
(iii) A written rental agreement provided to an individual named
in the rental agreement entered into under section 44522 only on
the date or dates indicated on the rental agreement while the named
individual is operating a personal watercraft leased, hired, or
rented from a boat livery.
(h) (g)
"Boating safety course"
means a course that meets both
of the following requirements:
(i) Provides instruction on the safe operation of a personal
watercraft that meets or exceeds the minimum course content for
boating or personal watercraft education established by the
national association of state boating law administrators education
committee (October 1996), a province of the commonwealth of Canada,
or another country.
(ii) Is approved by the department.
(i) (h)
"Controlled substance"
means that term as defined in
section 7104 of the public health code, 1978 PA 368, MCL 333.7104.
(j) (i)
"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 or family division
disposition on a violation of this part, regardless of whether the
penalty is rebated or suspended.
Sec. 80102. As used in this part:
(a) "Dealer" means a person and an authorized representative
of that person who annually purchases from a manufacturer, or who
is engaged in selling or manufacturing, 6 or more vessels that
require certificates of number under this part.
(b) "Identification document" means any of the following:
(i) A valid Michigan operator's or chauffeur's license.
(ii) A valid driver's or chauffeur's license issued by an
agency, department, or bureau of the United States or another
state.
(iii) An official identification card issued by an agency,
department, or bureau of the United States, this state, or another
state.
(iv) An official identification card issued by a political
subdivision of this state or another state.
(c) "Issuing authority" means the United States coast guard or
a state that has a numbering system approved by the United States
coast guard.
(d) "Law of another state" means a law or ordinance enacted by
another
state or by a local unit of government in another state.any
of the following:
(i) Another state.
(ii) A local unit of government in another state.
(iii) Canada or a province or territory of Canada.
(iv) A local unit of government in a province or territory of
Canada.
(e) "Lifeboat" means a small boat designated and used solely
for lifesaving purposes, and does not include a dinghy, tender,
speedboat, or other type of craft that is not carried aboard a
vessel for lifesaving purposes.
(f) "Long-term incapacitating injury" means an injury that
causes serious impairment of a body function.
Sec. 80104. As used in this part:
(a) "Highly restricted personal information" means an
individual's photograph or image, social security number, digitized
signature, and medical and disability information.
(b) "Passenger" means a person carried on board, attached to,
or towed by a vessel, other than the operator.
(c) "Peace officer" means any of the following:
(i) A sheriff.
(ii) A sheriff's deputy.
(iii) A deputy who is authorized by a sheriff to enforce this
part and who has satisfactorily completed at least 40 hours of law
enforcement training, including training specific to this part.
(iv) A village or township marshal.
(v) An officer of the police department of any municipality.
(vi) An officer of the Michigan state police.
(vii) The director and conservation officers employed by the
department.
(d) "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 watercraft operation and
equipment-related violations or civil infractions, operator or
vehicle registration status, accidents, or other behaviorally-
related information.
(e) "Personal watercraft" means a vessel that meets all of the
following requirements:
(i) Uses a motor-driven propeller or an internal combustion
engine powering a water jet pump as its primary source of
propulsion.
(ii) Is designed without an open load carrying area that would
retain water.
(iii) Is designed to be operated by 1 or more persons positioned
on, rather than within, the confines of the hull.
(f) "Political subdivision" means any county, metropolitan
authority, municipality, or combination of those entities in this
state. If a body of water is located in more than 1 political
subdivision, all of the subdivisions shall act individually in
order to comply with this part, except that if the problem is
confined to a specific area of the body of water, only the
political subdivision in which the problem waters lie shall act.
(g) "Port" means left, and reference is to the port side of a
vessel or to the left side of the vessel.
(h) "Prior conviction" means a conviction for any of the
following, whether under a law of this state, a local ordinance
substantially corresponding to a law of this state, a law of the
United States substantially corresponding to a law of this state,
or a law of another state substantially corresponding to a law of
this state:
(i) A violation or an attempted violation of section 80176(1),
(3), (4), (5), (6), or (7), except that only 1 violation or
attempted violation of section 80176(6), a local ordinance
substantially corresponding to section 80176(6), or a law of
another state substantially corresponding to section 80176(6), or a
law of the United States substantially corresponding to section
80176(6) may be used as a prior conviction other than for
enhancement purposes as provided in section 80178a(1)(b).
(ii) Negligent homicide, manslaughter, or murder resulting from
the operation of a vessel or an attempt to commit any of those
crimes.
(iii) Former section 73, 73b, or 171(1) of the marine safety
act.
(i) (h)
"Probate court or family
division disposition" means
the entry of a probate court order of disposition or family
division order of disposition for a child found to be within the
provisions of chapter XIIA of the probate code of 1939, 1939 PA
288, MCL 712A.1 to 712A.32.
(j) (i)
"Prosecuting attorney",
except as the context requires
otherwise, means the attorney general, the prosecuting attorney of
a county, or the attorney representing a political subdivision of
government.
(k) (j)
"Regatta", "boat
race", "marine parade", "tournament",
or "exhibition" means an organized water event of limited duration
that is conducted according to a prearranged schedule.
(l) (k)
"Slow—no wake speed"
means a very slow speed whereby
the wake or wash created by the vessel would be minimal.
(m) (l) "Starboard"
means right, and reference is to the
starboard side of a vessel or to the right side of the vessel.
(n) (m)
"State aid" means payment
made by the state to a
county for the conduct of a marine safety program.
(o) (n)
"Undocumented vessel"
means a vessel that does not
have, and is not required to have, a valid marine document issued
by the United States coast guard or federal agency successor to the
United States coast guard.
(p) (o)
"Uniform inspection
decal" means an adhesive-backed
sticker created by the department that is color-coded to indicate
the year that it expires and is attached to a vessel in the manner
prescribed for decals in section 80122 when a peace officer
inspects and determines that the vessel complies with this part.
(q) (p)
"Use" means operate,
navigate, or employ.
(r) (q)
"Vessel" means every
description of watercraft used or
capable of being used as a means of transportation on water.
(s) (r)
"Waters of this state"
means any waters within the
territorial limits of this state, and includes those waters of the
Great Lakes that are under the jurisdiction of this state.
(t) (s)
"Waterways account" means
the waterways account
established in section 2035.
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 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 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.
(6) A person who is less than 21 years of age, whether
licensed or not, shall not operate a vessel on the waters of this
state if the person has any bodily alcohol content. As used in this
subsection, "any bodily alcohol content" means either of the
following:
(a) 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.
(b) Any presence of alcohol within a person's body resulting
from the consumption of alcoholic liquor, other than consumption of
alcoholic liquor as a part of a generally recognized religious
service or ceremony.
(7) A person, whether licensed or not, is subject to the
following requirements:
(a) He or she shall not operate a vessel in violation of
subsection (1), (3), (4), or (5) while another person who is less
than 16 years of age is occupying the vessel.
(b) He or she shall not operate a vessel in violation of
subsection (6) while another person who is less than 16 years of
age is occupying the vessel.
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)
subsection (1)(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 under
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 under
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. 80178a. (1) If a person is convicted of violating section
80176(6), all of the following apply:
(a) Except as otherwise provided in subdivision (b), the
person is guilty of a misdemeanor punishable by 1 or both of the
following:
(i) Community service for not more than 360 hours.
(ii) A fine of not more than $250.00.
(b) If the violation occurs within 7 years of 1 or more prior
convictions, including a prior conviction for section 80176(6), the
person may be sentenced to 1 or more of the following:
(i) Community service for not more than 60 days.
(ii) A fine of not more than $500.00.
(iii) Imprisonment for not more than 93 days.
(2) In addition to imposing the sanctions prescribed under
this section, the court may order the person to pay the costs of
the prosecution under the code of criminal procedure, 1927 PA 175,
MCL 760.1 to 777.69.
(3) A person sentenced to perform community service 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.
Sec. 80178b. (1) A person who violates section 80176(7)(a) is
guilty of a crime punishable as follows:
(a) Except as provided in subdivision (b), a person who
violates section 80176(7)(a) is guilty of a misdemeanor and shall
be sentenced to pay a fine of not less than $200.00 or more than
$1,000.00 and to 1 or more of the following:
(i) Imprisonment for not less than 5 days or more than 1 year.
Not less than 48 hours of this imprisonment shall be served
consecutively. This term of imprisonment shall not be suspended.
(ii) Community service for not less than 30 days or more than
90 days.
(b) If the violation occurs within 7 years of a prior
conviction or after 2 or more prior convictions, regardless of the
number of years that have elapsed since any prior conviction, a
person who violates section 80176(7)(a) is guilty of a felony and
shall be sentenced to pay a fine of not less than $500.00 or more
than $5,000.00 and to either of the following:
(i) Imprisonment under the jurisdiction of the department of
corrections for not less than 1 year or more than 5 years.
(ii) Probation with imprisonment in the county jail for not
less than 30 days or more than 1 year and community service for not
less than 60 days or more than 180 days. Not less than 48 hours of
this imprisonment shall be served consecutively. This term of
imprisonment shall not be suspended.
(2) A person who violates section 80176(7)(b) is guilty of a
misdemeanor punishable as follows:
(a) Except as provided in subdivision (b), a person who
violates section 80176(7)(b) may be sentenced to 1 or more of the
following:
(i) Community service for not more than 60 days.
(ii) A fine of not more than $500.00.
(iii) Imprisonment for not more than 93 days.
(b) If the violation occurs within 7 years of a prior
conviction or after 2 or more prior convictions, regardless of the
number of years that have elapsed since any prior conviction, a
person who violates section 80176(7)(b) shall be sentenced to pay a
fine of not less than $200.00 or more than $1,000.00 and to 1 or
more of the following:
(i) Imprisonment for not less than 5 days or more than 1 year.
Not less than 48 hours of this imprisonment shall be served
consecutively. This term of imprisonment shall not be suspended.
(ii) Community service for not less than 30 days or more than
90 days.
(3) In addition to imposing the sanctions prescribed under
this section, the court may order the person to pay the costs of
the prosecution under the code of criminal procedure, 1927 PA 175,
MCL 760.1 to 777.69.
(4) A person sentenced to perform community service 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.
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), (6),
or (7) or a local
ordinance
substantially corresponding to section 80176(1), or (3),
or (6).
(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), (6), or
(7) or a local ordinance
substantially
corresponding to section 80176(1), or (3), or (6),
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), (6),
or (7) or a local ordinance substantially corresponding to section
80176(1), or
(3), or (6), 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 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 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
80176(1),
(3), (4), or (5), (6), or
(7), or a local ordinance
substantially
corresponding to section 80176(1), or (3), or (6).
(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 under section 80181 or 80182 does not
request
a hearing within 14 days of the date of notice pursuant to
under 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 under 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 under 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 November
1, 2013.