SB0174: SUMMARY OF INTRODUCED BILL IN COMMITTEE (Date Completed: 10-6-15)

-- Revise liability insurance provisions for a BAIID manufacturer and provider.

-- Provide that a required period of suspension or restriction due to a drunk driving conviction would not be subject to appeal to the SOS.

-- Prohibit a hearing officer from issuing an unrestricted driver license for one year if he or she determined that a person consumed alcohol or unlawfully used a controlled substance during the time the person's license was restricted.

-- Authorize the SOS to provide by electronic means any notice required under the Code or another law regulating vehicle operation.

Senate Bill 175 would amend the sentencing guidelines in the Code of Criminal Procedure to revise references to sections of the Vehicle Code that Senate Bill 176 would amend.

Senate Bill 174 would amend the Motor Vehicle Service and Repair Act to include a BAIID service center in the definition of "motor vehicle repair facility".

Senate Bill 357 would amend the Motor Vehicle Service and Repair Act to do the following:

-- Prohibit a motor vehicle repair facility from providing BAIID service without the approval of the Department of State.

-- Establish operational requirements for a facility that provided BAIID service.

-- Authorize the Department to inspect a repair facility that provided BAIID service.

-- Beginning July 1, 2016, prohibit a person from performing BAIID service in Michigan without having a specialty mechanic's certificate in BAIID service.

-- Require the SOS to develop or adopt an examination for a specialty mechanic's certification in the repair or service of BAIIDs.

-- Establish requirements for a motor vehicle repair facility and BAIID mechanic.

The bills would take effect 90 days after their enactment. Senate Bills 174, 175, and 357 are tie-barred to Senate Bill 176. Senate Bills 176, 174, and 357 are described below in further detail.

Senate Bill 176

Installation; Service Centers

Currently, an ignition interlock device must be serviced according to the manufacturer's standards. Service includes physical inspection of the device and vehicle for tampering, calibration of the device, and monitoring of the data contained within its memory. Only authorized employees of the manufacturer or the Department may observe the installation of a device. Reasonable security measures must be taken to prevent the customer from observing the installation or obtaining access to installation materials. The bill would delete these provisions.

Under the bill, the Department would be responsible for approving BAIID service centers for operation in Michigan. All of the requirements described below would apply for approval.

Only service centers that were manufacturers and vendors could service BAIIDs approved for use in this State. Beginning July 1, 2016, a BAIID could be installed, serviced, or removed only in a motor vehicle repair facility or in a BAIID manufacturer's corporate office if that office were located in Michigan and were subject to motor vehicle repair facility requirements and sanctions. ("Motor vehicle repair facility" would have the same definition as under Section 2 of the Motor Vehicle Service and Repair Act.)

A service center would have to be located in a fixed facility within the State. Service centers would have to make the addresses of their locations available to the Department for the area in which the centers were located. A service center would have to inform the Department of a change in its business address 15 days before relocating.

Each service center would have to do the following:

-- Have at least one licensed mechanic with a BAIID certification, or a BAIID certified technician, who was properly trained by the manufacturer for which the center was a vendor as its technician to service the device.

-- Maintain and make available for inspection records proving that each BAIID technician or mechanic working at the center was properly trained by the manufacturer to service the device for which the center was a vendor.

-- Provide a designated waiting area for customers that was separate from the area in which the devices were installed or serviced.

Only certified BAIID mechanics and technicians, and representatives of the manufacturer or the Department of State, could be allowed to observe the installation or removal of a device. Adequate security measures would have to be taken to ensure that unauthorized personnel could not gain access to proprietary materials or files of participants.

Manufacturer service centers would have to install, maintain, calibrate, and remove all BAIIDs handled by the service centers and perform any other services determined necessary by the Department for people using those BAIIDs in Michigan.

Devices approved for use in Michigan could be serviced only by service centers located within Michigan, unless a customer had a permanent residence in another state, or was unable to return to Michigan for service because of a significant personal hardship. If a BAIID were serviced by a center outside the State, the BAIID provider would have to ensure that the device operated using the same firmware used for devices in Michigan; and that the data recorded in the device would remain intact for later retrieval by a Michigan service center, or were transferred to a service center database within the State for review.

Devices for use in Michigan would have to be installed and could be removed only in an approved service center. Each application for approval would have to be for a single service center. Before issuing approval, the Department could require an on-site evaluation to ensure compliance with the Code. Approval of a service center would be for one year. The renewal process would be the same as the approval process.

The Department could conduct inspections of a manufacturer or service center to ensure compliance with the Code and rules promulgated under it. The manufacturer would have to pay for the actual cost to the Department in conducting an inspection.

Suspension or Revocation of Manufacturer's Certification

The Department of State could suspend or revoke the certification of a manufacturer and its device from the list of approved certified BAIIDs for either of the following reasons:

-- The manufacturer, its BAIIDs, or its installers or service providers no longer complied with certification requirements.

-- The manufacturer or the installers and service providers failed to submit required reports in a timely manner on the form prescribed by the Department.

Before removing a manufacturer from the list of approved manufacturers of certified BAIIDs, the SOS would have to give the manufacturer written notice of the reason for removal. The notice also would have to indicate that suspension or revocation would occur 30 days after the date of the notice unless the manufacturer established, to the satisfaction of the SOS, that both of the following applied:

-- The conditions for suspension or revocation did not exist.

-- The manufacturer, its BAIID, or its installers or service providers were in compliance with certification requirements.

The SOS could order a summary suspension or revocation of the certification of a manufacturer and its device for any of the following reasons:

-- Repeated failure to submit reports in a timely manner.

-- Repeated failure to report violations, as required by administrative rules.

-- Repeated submission of inaccurate violation reports or annual reports to the Department.

-- The manufacturer, installer, or service provider gave a person a bypass code.

-- The manufacturer, installer, or service provider showed or instructed an individual how to tamper with or circumvent a BAIID.

-- The manufacturer, installer, or service provider gave a sample to start a vehicle for an individual upon service or installation.

-- The manufacturer, installer, or service provider improperly allowed an individual to observe the installation or removal of a BAIID.

-- The BAIID no longer met the National Highway Traffic Safety Administration (NHTSA) standards or the requirements of the Vehicle Code.

A manufacturer to which a summary order was directed would have to comply with the order immediately, but, upon application to the Department, would have to be given a hearing within 30 days after the date of the application. On the basis of a hearing, the order would have to be continued, modified, or held in abeyance not later than 30 days after the hearing.

BAIID Mechanics & Technicians

Department Approval; Device Installation. The bill would prohibit a person from performing any service related to a BAIID in Michigan without being certified by the Department.

A manufacturer would have to ensure that BAIID mechanics and technicians had the appropriate certification from the Department and met all of the following requirements:

-- Possessed and maintained all necessary training and skills required to install, examine, troubleshoot, and verify the proper operation of BAIIDs.

-- Possessed the tools, test equipment, and manuals needed to install, inspect, download, calibrate, repair, maintain, service, and remove devices.

-- Provided all people who would use the vehicle with written and hands-on training regarding the operation of a vehicle equipped with the BAIID and ensure that each person demonstrated a properly delivered alveolar breath sample and an understanding of how the abort test feature worked.

A person who was convicted of an alcohol-related driving offense or any offense classified as a felony in Michigan or elsewhere within five years before applying for approval as a BAIID certified mechanic or technician would not be eligible for approval.

All installations would have to be done in a workmanlike manner by a BAIID mechanic or BAIID certified technician at an approved service center and be in accordance with the standards set forth the Code and with the manufacturer's requirements. All installed devices would have to be in working order and perform in accordance with the Code's standards. All connections would have to be soldered and covered with a tamper seal.

When a mechanic or technician finished installing a BAIID, he or she would have to give the customer verification in the form and format designated by the Department.

Mechanic Requirements. A BAIID certified mechanic would have to be at least 18 years old, have a valid driver license, be a motor vehicle mechanic as defined in the Motor Vehicle Service and Repair Act, and be certified as a BAIID mechanic under the Code. To be certified, the mechanic would have to meet all of the following requirements:

-- Possess a specialty certification in electrical systems under the Motor Vehicle Service and Repair Act.

-- Properly complete and file a BAIID mechanic application form with the Department.

-- Beginning 180 days after the bill took effect, be a licensed mechanic in Michigan with certification in the BAIID mechanic category (which the Department could create for this purpose).

-- Submit a criminal history report certified within the preceding 30 days.

-- Meet the Department's requirements for certification.

Each application for approval would have to be for a single BAIID mechanic. Approval of a BAIID mechanic would be for one year, and the renewal process would be the same as the approval process.

The Secretary of State could investigate a BAIID mechanic's compliance with the Code and would have to suspend, revoke, or deny an individual's certification as a BAIID mechanic if the SOS determined that one or more of the following applied:

-- The mechanic violated the Code or a rule promulgated under it.

-- The mechanic committed a fraudulent act in connection with the inspection, installation, monitoring, or removal of a BAIID.

-- The mechanic performed improper, careless, or negligent inspection, installation, monitoring, or removal of a BAIID.

-- The mechanic made a false statement of a material fact regarding his or her actions in inspecting, installing, monitoring, or removing a BAIID.

Technician Requirements. A certified BAIID technician would have to be at least 18 years old, have a valid driver license, and be a certified BAIID technician under the Vehicle Code.

To be a certified, an applicant would have to properly complete and file a BAIID technician application form with the Department. The application could require documentation provided by an employer that the applicant was currently trained in all necessary aspects of the specific BAIID device approved for use in Michigan that he or she would servicing, or any other documentation required by the Department. The fee for the certification of a BAIID technician would have to accompany the technician's application for certification filed with the SOS. The fee would have to be determined in the same manner as for a mechanic under administrative rules. An applicant also would have to submit a criminal history report certified within the immediately preceding 30 days.

Before initial certification, an applicant would have to satisfactorily pass a written examination that covered regulatory and other aspects of the BAIID usage program in Michigan. Failure of the initial examination would make the applicant ineligible for re-examination for 30 days. Failure of a subsequent examination would be conducted in the same manner as an initial failure.

Beginning 180 days after the bill's effective date, the applicant would have to be a certified BAIID technician. The Department of State could create a certified BAIID technician certificate.

Each application for approval would have to be for a single certified BAIID technician. Certification of a BAIID technician would be for one year. The renewal process would be the same as the approval process. A certified BAIID technician would have to reapply for certification if he or she installed BAIID devices for a manufacturer in addition to, or in lieu of, the manufacturer listed on the last certification application. If the name or address of a certified BAIID technician changed, he or she would have to notify the Department in writing.

The Department of State could investigate a certified BAIID technician's compliance with the application and certification requirements and would have to suspend, revoke, or deny a person's certification if the SOS determined that the certified BAIID technician took any of the actions that would require a BAIID mechanic's certification to be suspended, revoked, or denied.

The Department could not issue or renew any application for a certified BAIID technician from an individual who had previously been suspended, or denied certification, as a result of one of those actions.

BAIID Certification

The Code requires the Department of State to approve an ignition interlock device certified by a Department-approved laboratory as complying with particular model specifications for breath alcohol ignition interlock devices. The bill would delete these provisions.

Instead, a manufacturer seeking certification of a BAIID in Michigan would have to do all of the following:

-- Complete an application for certification.

-- Submit a report from a Department-approved laboratory certifying that the BAIID met or exceeded the model specifications.

-- Ensure that a BAIID installed on or after July 1, 2015, was capable of taking photographs.

-- Agree to ensure proper record-keeping and provide testimony relating to any aspect of the installation, service, repair, use, removal, or interpretation of any report or information recorded in the data storage system of a device or performance of any other duties required by the Code at no cost on behalf of the State or any political subdivision of the State.

The Code requires the Department to provide a list of all manufacturers of approved certified devices to each person who is issued a restricted license that permits him or her to drive a vehicle only if it is equipped with a BAIID. The Department may not include a certified BAIID manufacturer on the list unless the manufacturer complies with specific requirements, including filing with the Department a copy of evidence of insurance under Section 625l (which the bill would amend as described below). The bill would eliminate the reference to evidence of insurance under Section 625l, and instead would require the manufacturer to file proof of liability insurance issued by an insurance company authorized to do business in Michigan, specifying all of the following:

-- That the policy was current at the time of application.

-- The name and model number of the device model covered by the policy.

-- That the policy had a minimum coverage of $1.0 million per occurrence and $3.0 million in the aggregate.

-- That the policy would indemnify the Department of State and any other person injured as a result of any defects in the manufacture, materials, design, calibration, installation, or operation of the device.

Additionally, in order to be included on the list, a BAIID manufacturer must file a copy of an affidavit that the device meets the Code's definition of such a device; and is set to take samples periodically while the vehicle is in operation and, when the device detects an alcohol content of at least 0.025 gram per 210 liters of breath, or if a breath sample is not given within the allotted time, to do the following:

-- Emit a visible or audible warning signal.

-- Render the vehicle inoperable as soon as the vehicle is no longer being operated, requiring the operator to provide a breath sample containing a breath alcohol level of less than 0.025 gram per 210 liters of breath before the vehicle may be restarted.

Under the bill, the device also would have to disable the free restart and activate a violation reset. The device would have to initiate an audible or visual cue that would warn the driver that the device would enter a permanent lockout in five days.

In addition, after a vehicle was in operation, the BAIID would have to require a first retest sample within five to 15 minutes after the operator started the vehicle. The device would have to prompt second and subsequent retests within 25 to 45 minutes of the first retest. The vehicle's operator would have to be given not more than five minutes to provide a passing retest sample for each retest prompted by the device. The BAIID would have to accept multiple attempts to provide a retest sample without initiating a lockout.

The bill would delete a requirement that a manufacturer give the SOS a list of installers who are authorized to install and service the manufacturer's device in order to be included on the list given to a person with a restricted license.

BAIID Manufacturers

The bill would require a BAIID manufacturer, upon the request of the Department of State, and at no cost to the State, to give the Department at least two devices for each model certified under the Code for the Department's demonstration and training purposes.

Also, upon the Department's request, at no cost to the State, the manufacturer would have to install one of each certified device in a vehicle provided by the Department. Any service performed pursuant to this requirement, including installation, maintenance, calibration, or removal, would have to be completed at no cost to the State.

Upon the Department's request, for each Department-approved BAIID model, the provider would have to provide at least 10 hours of training to Department employees at no cost to the State. The training would have to be held at the times and locations within the State designated by the Department. The training would have to be designed to familiarize Department employees with the installation, operation, service, repair, and removal of the devices and include the training and instructions that the providers would give to customers. The BAIID provider also would have to give the Department, upon request, the following information:

-- A detailed description of the device, including complete instructions for installation, operation, service, repair, and removal.

-- Complete technical specifications, including detailed explanations and definitions of all data log entries.

A manufacturer would have to notify the Department at least 15 days before implementing any modification, upgrade, or alteration to any hardware, software, or firmware of a device certified for use in Michigan. The notification would have to include both of the following:

-- A description and explanation of the modification, upgrade, or alteration and proof satisfactory to the Department that the modifications, upgrades, and alterations would not adversely affect the device's ability to satisfy the Code's requirements.

-- A comprehensive plan of action for phasing out the use of the current device, approved by the Department before implementation of the plan of action.

Any equipment in the Department's possession that was retained for certification of the device would have to be modified, upgraded, or altered simultaneously with implementation.

Material modifications to a certified device could require recertification under the Code as determined by the Department.

A manufacturer would have to reapply for approval annually.

Rescinded Rules

The bill would rescind R 257.1005 and R 257.1006, which do the following:

-- Allow the SOS to remove a manufacturer from the approved list of certified BAIID manufacturers, if the manufacturer or its devices, installers, or service providers no longer comply with applicable Code requirements or rules; or the manufacturer or authorized installers and service providers fail to submit required reports in a timely manner.

-- Authorize the SOS to conduct inspections of a laboratory or BAIID manufacturer, installer, or service provider to determine compliance with relevant provisions of the Code and rules promulgated under it.

-- Allow the SOS to remove from the approved list a manufacturer or laboratory that fails to take necessary corrective action or to come into full compliance with the Code or an applicable rule, or fails to file a written response to a notice of noncompliance within 30 days.

Use of BAIID by another Person

The Code prohibits a person who has an ignition interlock device installed and whose driving privilege is restricted from requesting or soliciting another person to blow into the device to start the vehicle for the purpose of giving him or her an operable vehicle. The bill also would prohibit the person from allowing another person to blow into the device.

Liability

Under Section 625l, the State of Michigan, or the Department of State, its officers, employees, or agents, or a court, its officers, employees, or agents are not liable in any claim or action that may arise out of any act or omission by a manufacturer, installer, or servicing agent of an ignition interlock device that results in damage to people or property.

Section 625l also prohibits a person from selling, leasing, installing, or monitoring in a vehicle in Michigan an ignition interlock device unless the manufacturer and provider carries liability insurance covering product liability, including insurance to indemnify the Department of State and any person injured as a result of a design defect or the calibration or removal of the device or a misrepresentation about the device. The required insurance must be in an amount of at least $1.0 million per accident.

The bill would delete all of these provisions.

Restricted License Suspension, Denial, & Revocation

The Code requires the SOS to suspend a person's license for a violation of Section 625(1) or (3). (Section 625(1) prohibits a person from operating a vehicle while intoxicated. Section 625(3) prohibits a person from operating a vehicle when his or her ability to operate the vehicle is visibly impaired due to the consumption of alcoholic liquor, a controlled substance, and/or other intoxicating substance.) The SOS also must revoke and deny issuance of a person's license for any combination of three convictions for these violations within 10 years.

Except as otherwise provided, the SOS must issue a restricted license to a person whose license was suspended, restricted, revoked, or denied based on either of the following:

-- Two or more convictions for violating Section 625(1) or (3) or a substantially corresponding local ordinance.

-- One conviction for violating Section 625(1) or (3) or a substantially corresponding local ordinance, preceded by at least one conviction for violating a local ordinance or law of another state substantially corresponding to Section 625(1), (3), or (6), or a substantially corresponding Federal law.

(Section 625(6) prohibits a person younger than 21 from operating a vehicle if he or she has any bodily alcohol content.)

A restricted license may not be issued until after the person's license has been suspended or revoked for 45 days and the judge assigned to a DWI/sobriety court certifies to the SOS that the person has been admitted into a DWI/sobriety court program, and that an approved and certified ignition interlock device has been installed on each vehicle the individual owns and/or operates.

The restricted license must be suspended, revoked, or denied under certain circumstances, such as the person operates a vehicle without the required ignition interlock device. The bill provides that any required period of suspension or restriction would not be subject to appeal to the SOS.

Unrestricted License

Except as otherwise provided, a restricted license is effective until a hearing officer orders an unrestricted license under the Vehicle Code. The hearing officer may not order an unrestricted license until the later of the following events occurs:

-- The court notifies the SOS that the person has successfully completed the DWI/sobriety court program.

-- The minimum period of license sanction that would have been imposed under the Vehicle Code has been completed.

-- The person demonstrates that he or she has operated with a BAIID for at least one year.

-- The person satisfies license reinstatement requirements under the Vehicle Code and administrative rules.

Under the bill, a hearing officer could not issue an unrestricted license for one year after either of the following:

-- The hearing officer determined that the person consumed any alcohol during the period that his or her license was restricted, as determined by breath, blood, urine, or transdermal testing unless a second test, taken within five minutes after the first test, showed an absence of alcohol.

-- The hearing officer determined that the person consumed or otherwise used any controlled substance during the period that his or her license was restricted, except as lawfully prescribed.

Senate Bill 174

The Motor Vehicle Service and Repair Act defines "motor vehicle repair facility" as a place of business that engages in the business of performing or employing people who perform maintenance, diagnosis, vehicle body work, or repair service on a motor vehicle for compensation. The bill would include a BAIID service center in the definition.

Senate Bill 357

BAIID Service Facility

The bill would prohibit a motor vehicle repair facility from providing BAIID service without the approval of the Department of State. The Department could authorize a motor vehicle repair facility to perform BAIID service, or renew approval for that service, if the facility met the requirements outlined below.

The facility would have to operate at a fixed location in Michigan and employ at least one mechanic who held a specialty certification in BAIID service and who was properly trained as a BAIID technician by the BAIID manufacturer for which the facility was a vendor. The facility would have to maintain and make available for inspection records that proved that each mechanic who held a specialty certification in BAIID service and was employed by the facility was properly trained by the BAIID manufacturer.

The facility would have to provide a designated waiting area for customers that was separate from the area in which BAIID service was performed. Only a mechanic who held a specialty certification in BAIID service, a representative of the manufacturer, or a representative of the Department could be allowed to observe the installation or removal of a BAIID.

The facility would have to take adequate security measures to ensure that unauthorized personnel could not gain access to proprietary materials or files of any BAIID manufacturer for which the facility was a vendor.

The facility would have to inform the Department of any change in its business address at least 15 days before the date of any relocation. An application for approval would be for a single location, and separate application would be required for each location at which the facility would provide BAIID service.

If requested by the Department, the facility would have to allow it to conduct an on-site evaluation to ensure compliance with the Act.

The term of an original or renewal approval of a motor vehicle repair facility to provide BAIID service would be one year.

The Department could conduct an inspection of a motor vehicle repair facility that provided BAIID service to ensure compliance with the Act and the Michigan Vehicle Code (as it would be amended by Senate Bill 176), and rules promulgated to implement those provisions. The facility would have to pay for the actual costs to the Department in conducting an inspection.

Specialty Mechanic's Certification

Under the Act, a person may become certified as a specialty mechanic if he or she passes an examination, developed or adopted by the Secretary of State, as an adequate test of a person's ability to perform certain types of motor vehicle repair. In addition to the categories of repair or service for which certification is currently required, the bill would include BAIID service.

Within 120 days of the bill's effective date, the SOS would have to develop or adopt an examination for specialty mechanic certification in the repair or service of BAIIDs for a person who was engaged for compensation in BAIID service.