(a) OUIL, UBAL, OUICS, OWI and Attempts.
(1) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this City, if the person is operating while intoxicated. As used in this section, "operating while intoxicated" means either of the following:
A. The person is under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance. As used in this section, "Alcoholic liquor" means that term as defined in Section 105 of the Michigan liquor control code of 1998, Act 58 of the Public Acts of 1998, M.C.L.A. 436.1105.
B. The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(2) The owner of a vehicle or a person in charge or in control of a vehicle shall not authorize or knowingly permit the vehicle to be operated upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of motor vehicles, within this city by a person if any of the following apply:
A. The person is under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.
B. The person has an 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 the motor vehicle 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, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this City when, due to the consumption of an alcoholic liquor, a controlled substance, or a combination of an alcoholic liquor and a controlled substance, the person's ability to operate the vehicle is visibly impaired. If a person is charged with violating paragraph (1)(a) hereof, a finding of guilty under this paragraph may be rendered.
(4) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the paring of vehicles, within this State if 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, Act 368 of the Public Acts of 1978, M.C.L.A. 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, Act 368 of the Public Acts of 1978, M.C.L.A. 333.7214.
(5) A person who is less than 21 years of age, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this City if the person has any bodily alcohol content. As used in this paragraph, the term "any bodily alcohol content" means either of the following:
A. An alcohol content of not less than 0.02 grams or more 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.
(6) A person, whether licensed or not, is subject to the following requirements:
A. He or she shall not operate a vehicle in violation of subsection (1), (3), or (4) while another person who is less than 16 years of age is occupying the vehicle. A person who violates this section is guilty of a crime punishable as follows:
1. A person who violates this section 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 one or more of the following:
(a) Imprisonment for not less than five days or more than one year. Not less than 48 hours of this imprisonment shall be served consecutively. This term of imprisonment shall not be suspended.
(b) Community service for not less than thirty days or more than ninety days.
B. He or she shall not operate a vehicle in violation of subsection (5) while another person who is less than 16 years of age is occupying the vehicle. A person who violates this subsection is guilty of a misdemeanor punishable as follows:
1. Except as provided herein, a person who violates this subdivision may be sentenced to one or more of the following:
(a) Community service for not more than sixty days.
(b) A fine of not more than $500.00
(c) Imprisonment for not more than 93 days.
2. If the violation occurs within seven years of a prior conviction or within 10 years of 2 or more prior convictions, a person who violates this subdivision shall be sentenced to pay a fine of not less than $200.00 or more than $1,000.00 and to one or more of the following:
(a) Imprisonment for not less than five days or more than 93 days. Not less than 48 hours of this imprisonment shall be served consecutively. This term of imprisonment shall not be suspended.
(b) Community service for not less than thirty days or more than ninety days.
C. In the judgment of sentence under subsection A(1) or B(1), the court may, unless the vehicle is ordered forfeited under M.C.L.A. 257.652n, order vehicle immobilization as provided in M.C.L.A. 275.904d. In the judgment of sentence under subsection A(2) or B(2) the court shall, unless the vehicle is ordered forfeited under M.C.L.A. 257.625n, order vehicle immobilization as provided in M.C.L.A. 275.904d.
(7) If a person is convicted of violating paragraph (a)(1) or (4) hereof, all of the following apply:
A. Except as otherwise provided in subsection (b) and (c) below, the person is guilty of a misdemeanor punishable by one or more of the following:
1. Service to the community for a period of not more than 45 days.
2. Imprisonment for not more than 93 days.
3. A fine of not less than one hundred dollars ($100.00) or more than five hundred dollars ($500.00).
B. If the violation occurs within seven years of a prior conviction, the person shall be sentenced to pay a fine of not less than two hundred dollars ($200.00) or more than five hundred dollars ($500.00) and one or more of the following:
1. Service to the community for a period of not more than 45 days.
2. Imprisonment for not more than 93 days.
C. In the judgment of sentence under this subsection, the court may order vehicle immobilization as provided in subsection (k) hereof, M.C.L.A. 257.904d.
D. A person sentenced to perform service to the community under this subsection 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.
E. In addition to imposing the sanctions prescribed under paragraph (a)(5) hereof, the court may, pursuant to the Code of Criminal Procedure, Act No. 175 of the Public Acts of Michigan of 1927 (M.C.L.A. 760.1 et seq., M.S.A. 28.841 et seq.), as amended, order the person to pay the costs of the prosecution.
F. The Secretary of State shall impose license sanctions pursuant to subsection (c) hereof, and M.C.L.A. 257.625b, M.S.A. 9.2325(2).
(8) A person who is convicted of violating paragraph (a)(2) hereof, is guilty of a misdemeanor, punishable by imprisonment for not more than 93 days, or a fine of not less than one hundred dollars ($100.00) or more than five hundred dollars ($500.00), or both.
(9) If a person is convicted of violating paragraph (a)(3) hereof, the person is guilty of a misdemeanor punishable by one or more of the following:
A. Service to the community for a period of not more than 45 days.
B. Imprisonment for not more than 93 days.
C. A fine of not more than three hundred dollars ($300.00).
D. In addition to imposing the sanctions prescribed in this subsection, the court may, pursuant to the Code of Criminal Procedure, Act No. 175 of the Public Acts of Michigan of 1927 (M.C.L.A. 760.1 et seq., M.S.A. 28.841 st seq.), as amended, order the person to pay the costs of the prosecution.
E. The Secretary of State shall impose license sanctions pursuant to subsection (c) hereof and, M.C.L.A. 257.625b, M.S.A. 9.2325(2).
F. A person sentenced to perform service to the community under this subsection 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.
G. In the judgment of sentence under this subsection, the court may order vehicle immobilization as provided in subsection (k) hereof, M.C.L.A. 257.904d.
(10) If a person is convicted of violating paragraph (a)(5) hereof, the following shall apply:
A. Except as otherwise provided in subparagraph B. hereof, the person is guilty of a misdemeanor punishable by one or more of the following:
1. Service to the community for not more than 360 hours.
2. A fine of not less than $100.00 or more than $500.00.
3. Imprisonment for not more than 93 days.
B. If the violation occurs within seven years of one or more prior convictions, the person shall be sentenced to pay a fine of not less than $200.00 or more than $1,000.00 and one or more of the following:
1. Imprisonment for not less than five days or more than one year. Not less than 48 hours of the term of imprisonment imposed under this subparagraph shall be served consecutively.
2. Community service for not less than 30 days or more than 90 days.
C. A term of imprisonment imposed under subparagraph B. shall not be suspended.
D. In the judgment of sentence under subparagraph A., the court may order vehicle immobilization as provided in paragraph (k). In the judgment of sentence under subparagraph B, the court shall, unless the vehicle is ordered forfeited under M.C.L.A. 257.625(n) or a section herein substantially corresponding to M.C.L.A. 257.625(n), order vehicle immobilization as provided in M.C.L.A. 257.904(d) or a section herein substantially corresponding to M.C.L.A. 257.904(d).
E. In the judgment of sentence under subsection B, the court may impose the sanction permitted under M.C.L.A. 257.625(n) or a section herein substantially corresponding to M.C.L.A. 257.625(n).
(11) If the violation of paragraph (a)(11) hereof occurs within 7 years of a prior conviction or within 10 years of 2 or more prior convictions, the court shall, unless the vehicle is ordered forfeited under subsection (I), M.C.L.A. 257.625(n), order vehicle immobilization as provided in subsection (k) hereof, M.C.L.A. 257.904d in the judgment of sentence.
(12) In addition to imposing he sanctions prescribed under this section, the court may order the person to pay the costs of the prosecution under the Code of Criminal Procedure, Act 175 of the Public Acts of 1927, M.C.L.A. 760.1 to 777.69.
(13) A person sentenced to perform community service under this subsection shall not receive any 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.
(14) If a person is charged with a violation of paragraph (a)(1), (3), (4), or (6) hereof, the court shall not permit the defendant to enter a plea of guilty or nolo contendere to a charge of violating paragraph (a)(5) hereof in exchange for dismissal of the original charge. This paragraph does not prohibit the court from dismissing the charge upon the motion of the prosecuting attorney.
(15) A prior conviction shall be established at sentencing by one or more of the following:
A. A abstract of conviction.
B. A copy of the defendant's driving record.
C. An admission by the defendant.
(16) Except as otherwise provided in paragraph (a)(18) hereof, if a person is charged with operating a vehicle while under the influence of a controlled substance or a combination of alcoholic liquor and a controlled substance in violation of paragraph (a)(1) hereof, the court shall require the jury to return a special verdict in the form of a written finding or, if the court convicts the person without a jury or accepts a plea of guilty or nolo contendere, the court shall make a finding as to whether the person was under the influence of a controlled substance or a combination of alcoholic liquor and a controlled substance at the time of the violation.
(17) Except as otherwise provided in subsection (a)(18), if a person is charged with operating a vehicle while his or her ability to operate the vehicle was visibly impaired due to his or her consumption of a controlled substance of a combination of alcoholic liquor and a controlled substance in violation of paragraph (a)(3) hereof or a local ordinance substantially corresponding to paragraph (a)(3) hereof, the court shall require the jury to return a special verdict in the form of a written finding or, if the court convicts the person without a jury or accepts a plea of guilty or nolo contendere, the court shall make a finding as to whether, due to the consumption of a controlled substance or a combination of alcoholic liquor and a controlled substance, the person's ability to operate a motor vehicle was visibly impaired at the time of the violation.
(18) A special verdict described in paragraphs (a)(16) and (17) hereof, is not required if a jury is instructed to make a finding solely as to either of the following:
A. Whether the defendant was under the influence of a controlled substance or of a combination of alcoholic liquor and a controlled substance at the time of the violation.
B. Whether the defendant was visibly impaired due to his or her consumption of a controlled substance or a combination of alcoholic liquor and a controlled substance at the time of the violation.
(19) If a jury or court makes a finding under paragraphs (a)(16), (17) or (18) hereof, that the defendant operated a motor vehicle under the influence of or while impaired due to the consumption of a controlled substance, or combination of a controlled substance and an alcoholic liquor, the court shall do both of the following:
A. Report the finding to the Secretary of State.
B. Forward to the Department of State Police, on forms prescribed by the State Court Administrator, a record that specifies the penalties imposed by the court, including any term of imprisonment and any sanction imposed under subsection (i) hereof, M.C.L.A. 257.625n, and section (j) hereof, M.C.L.A. 257.904d.
(20) Except as otherwise provided by law, a record described in paragraph (a)(19)B. Hereof, is a public record, and the Department of State Police shall retain the information contained on that record for a period of not less than seven years.
(21) In a prosecution for a violation of paragraph (a)(5) hereof, the defendant shall bear the burden of proving that the consumption of alcoholic liquor was a part of a generally recognized religious service or ceremony by a preponderance of the evidence.
(Ord. 2003-13. Passed 10-21-03; Ord. 2007-18. Passed 9-4-07.)
(b) Warrantless Arrest at Accident; Preliminary Chemical Breath Analysis; Chemical Tests; Arrest and Evidence.
(1) A peace officer, without a warrant, may arrest a person when the peace officer has reasonable cause to believe that the person was, at the time of an accident, the operator of a vehicle involved in the accident in this City and was operating the vehicle in violation of this section.
(2) A peace officer, without a warrant, may arrest a person if that person is found in the driver's seat of a vehicle parked or stopped on a highway or street within this City if any part of the vehicle intrudes into the roadway and the peace officer has reasonable cause to believe the person was operating the vehicle in violation of this section.
(3) A peace officer who has reasonable cause to believe that a person was operating a vehicle upon a public highway or other place open to the public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this City, and that the person, by the consumption of alcoholic liquor, may have been affected in his or her ability to operate a vehicle, or reasonable cause to believe that a person was operating a commercial motor vehicle within the City while the person's blood, breath, or urine contained any measurable amount of alcohol or while the person had any detectable presence of alcoholic liquor, or reasonable cause to believe that a person who is less than twenty-one years of age was operating a vehicle upon a public highway or other place open to the public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this City, while the person had any bodily alcohol content as that term is defined in paragraph (a)(9) hereof, may require the person to submit to a preliminary chemical breath analysis. The following provisions apply with respect to a preliminary chemical breath analysis administered pursuant to this subsection:
A. A peace officer may arrest a person based in whole or in part upon the results of a preliminary chemical breath analysis.
B. The results of a preliminary chemical breath analysis are admissible in a criminal prosecution for a crime enumerated in paragraph (c)(1) hereof or in an administrative hearing for one or more of the following purposes:
1. To assist the court or hearing officer in determining a challenge to the validity of an arrest. This paragraph does not limit the introduction of other competent evidence to establish the validity of an arrest.
2. As evidence of the defendant's breath alcohol content, if offered by the defendant to rebut testimony elicited on cross-examination of a defense witness that the defendant's breath alcohol content was higher at the time of the charged offense than when a chemical test was administered under paragraph (b)(4) hereof.
3. As evidence of the defendant's breath alcohol content, if offered by the prosecution to rebut testimony elicited on cross-examination of a prosecution witness that the defendant's breath alcohol content was lower at the time of the charged offense than when a chemical test was administered under paragraph (b)(4) hereof.
C. A person who submits to a preliminary chemical breath analysis shall remain subject to the requirements of subsections (c), (d), (e) and (f) hereof for the purposes of chemical tests described in those subsections.
D. A person who refuses to submit to a preliminary chemical breath analysis upon a lawful request by a peace officer is responsible for a civil infraction.
E. A peace officer shall use the results of a preliminary chemical breath analysis conducted pursuant to this section to determine whether to order a person out-of-service, under M.C.L.A. 257.319d, M.S.A. 9.2019(4). A peace officer shall order out-of-service, as required under M.C.L.A. 257.319d, M.S.A. 9.2019(4), a person who was operating a commercial motor vehicle and who refuses to submit to a preliminary chemical breath analysis as provided in this section. This section does not limit the use of other competent evidence by the peace officer to determine whether to order a person out-of-service under M.C.L.A. 257.319d, M.S.A. 9.2019(4).
F. A person who was operating a commercial motor vehicle and who is requested to submit to a preliminary chemical breath analysis under this section shall be advised that refusing a peace officer's request to take a test described in this section is a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than one hundred dollars ($100.00), or both, and will result in the issuance of a 24 hour out-of-service order.
G. A person who was operating a commercial motor vehicle and who refuses to submit to a preliminary chemical breath analysis upon a peace officer's lawful request is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than one hundred dollars ($100.00), or both.
(4) The following provisions apply with respect to chemical tests and analysis of a person's blood, urine, or breath, other than preliminary chemical breath analysis:
A. The amount of alcohol or presence of a controlled substance or both in a driver's blood at the time alleged as shown by chemical analysis of the person's blood, urine, or breath is admissible into evidence in any civil or criminal proceeding and is presumed to be the same as at the time the person operated the vehicle.
B. A person arrested for a crime described in paragraph (c)(1) hereof shall be advised of all of the following:
1. That if the person takes a chemical test of his or her blood, urine, or breath administered at the request of a peace officer, he or she has the right to demand that a person of his or her own choosing administer one of the chemical tests; that the results of the test are admissible in judicial proceedings as provided under this section and will be considered with other admissible evidence in determining the innocence or guilt of the defendant; and that he or she is responsible for obtaining a chemical analysis of a test sample obtained pursuant to his or her own request.
2. That if he or she refuses the request of a peace officer to take a test described in paragraph (b)(4)B.1. hereof, a test shall not be given without a court order, but the peace officer may seek to obtain a court order.
3. That his or her refusal of the request of a peace officer to take a test described in paragraph (b)(4)B.1. hereof will result in the suspension of his or her operator's or chauffeur's license and vehicle group designation, or operating privilege, and in the addition of six points to his or her driving record.
C. A sample or specimen of urine or breath shall be taken and collected in a reasonable manner. Only a licensed physician, or an individual operating under the delegation of a licensed physician under M.C.L.A. 333.16215, qualified to withdraw blood and acting in a medical environment, at the request of a peace officer, may withdraw blood to determine the amount of alcohol or presence of a controlled substance or both in the person's blood, as provided in this subsection. Liability for a crime or civil damages predicated on the act of withdrawing or analyzing blood and related procedures shall not attach to a licensed physician or individual operating under the delegation of licensed physician who withdraws or analyzes blood or assists in the withdrawal or analysis in accordance with this section unless the withdrawal or analysis is performed in a negligent manner.
D. A chemical test described in this subsection shall be administered at the request of a peace officer having reasonable grounds to believe the person has committed a crime described in paragraph (c)(1) hereof. A person who takes a chemical test administered at the request of a peace officer, as provided in this subsection, shall be given a reasonable opportunity to have a person of his or her own choosing administer one of the chemical tests described in this subsection within a reasonable time after his or her detention, and the results of the test shall be admissible and shall be considered with other admissible evidence in determining the innocence or guilt of the defendant. If the person charged is administered a chemical test by a person of his or her own choosing, the person charged shall be responsible for obtaining a chemical analysis of the test sample.
E. If, after an accident, the driver of a vehicle involved in the accident is transported to a medical facility and a sample of the driver'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 any civil or criminal proceeding to show the amount of alcohol or presence of a controlled substance or both in the person's blood at the time alleged, regardless of whether the person had been offered or had refused a chemical test. The medical facility or person performing the chemical analysis shall disclose the results of the analysis to a prosecuting attorney who requests the results for use in a criminal prosecution as provided in this subsection. A medical facility or person disclosing information in compliance with this subsection shall not be civilly or criminally liable for making the disclosure.
F. If, after an accident, the driver of a vehicle 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 the amount of alcohol or the presence of a controlled substance, or both, in the decedent's blood. The medical examiner shall give the results of the chemical analysis of the sample to the law enforcement agency investigating the accident, and that agency shall forward the results to the Department of State Police.
G. The Department of State Police shall promulgate uniform rules in compliance with the Administrative Procedure Act of 1969, M.C.L.A. 24.201 to 24.328 for the administration of chemical tests for the purposes of this subsection. An instrument used for a preliminary chemical breath analysis may be used for a chemical test described in this subsection if approved pursuant to rules promulgated by the department of state police.
(5) The provisions of paragraph (b)(3) hereof relating to chemical testing do not limit the introduction of any other admissible evidence bearing upon the question of whether a person was impaired by, or under the influence of, alcoholic liquor or a controlled substance, or a combination of alcoholic liquor and a controlled substance, or whether the person had an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or if the person is less than 21 years of age, whether the person had any bodily alcohol content. As used in this paragraph, the term "any bodily alcohol content" means either of the following:
A. An alcohol content of not less than 0.2 grams or more 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.
(6) If a chemical test described in paragraph (b)(4) hereof 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 two days before the date 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 shall bar the admission of the results into evidence by the prosecution.
(c) Consent to Chemical Tests; Certain Persons Not Considered to Have Given Consent to Withdrawal of Blood; Administration of Tests.
(1) A person who operates a vehicle upon a public highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this City 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 or urine or the amount of alcohol in his or her breath if the person is arrested for a violation of paragraph (a)(1), (3) or (9) hereof.
(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) The tests shall be administered as provided in paragraph (b)(3) hereof.
(d) Refusal to Submit to Chemical Test; Court Order; Report to Secretary of State; Form.
(1) If a person refuses the request of a peace officer to submit to a chemical test offered pursuant to paragraph (b)(3) hereof, a test shall not be given without a court order, but the officer may seek to obtain the court order.
(2) A written report shall immediately be forwarded to the Secretary of State by the peace officer. The report shall state that the officer had reasonable grounds to believe that the person had committed a crime described in paragraph (c)(1) hereof, and that the person had refused to submit to the test upon the request of the peace officer and had been advised of the consequence of the refusal. The form of the report shall be prescribed and furnished by the Secretary of State.
(e) Refusal to Submit to Chemical Tests; Notice of Report; Request for a Hearing; Counsel.
(1) If a person refuses to submit to a chemical test pursuant to paragraph (b)(3) hereof, the peace officer shall immediately notify the person, in writing, that within 14 days of the date of the notice the person may request a hearing as provided in subsection (f) hereof. The form of the notice shall be prescribed and furnished by the Secretary of State.
(2) The notice shall specifically state that failure to request a hearing within 14 days will result in the suspension of the person's license or permit to drive. The notice shall also state that there is not a requirement that the person retain counsel for the hearing, though counsel would be permitted to represent the person at the hearing.
(f) Effect of Failure to Request Hearing; Hearing Procedure; Notice; Authority of Hearing Officer; Scope of Hearing; Record; Transmittal of Record to Reviewing Court; Suspension or Denial of License or Permit; Judicial Review; Notice to Motor Vehicle Administrator of Another State.
(1) If a person who refuses to submit to a chemical test pursuant to subsection (d) hereof does not request a hearing within 14 days after the date of notice pursuant to subsection (e) hereof, the Secretary of State shall impose the following license sanctions:
A. If the person was operating a vehicle other than a commercial motor vehicle, suspend or deny the person's operator's or chauffeur's license or permit to drive, or nonresident operating privilege for one year or, for a second or subsequent refusal within seven years, for two years. If the person is a resident without a license or permit to operate a vehicle in the state, the Secretary of State shall not issue the person a license or permit for one year or, for a second or subsequent refusal within seven years, for two years.
B. If the person was operating a commercial motor vehicle, for the first refusal, suspend all vehicle group designations on the person's, operator's or chauffeur's license or permit or nonresident privilege to operate a commercial motor vehicle or, if the person is a resident without a license or permit to operate a commercial motor vehicle in the state, not issue the person an operator's or chauffeur's license with vehicle group designation, for one year.
C. If the person was operating a commercial motor vehicle, for a second or subsequent refusal that occurred in a separate incident from and within ten years of a prior refusal, revoke all vehicle group designations on the person's operator's or chauffeur's license or permit or nonresident privilege to operate a commercial motor vehicle or, if the person is a resident without a license or permit to operate a commercial motor vehicle in the state, not issue the person an operator's or chauffeur's license with vehicle group designations, for not less than ten years and until the person is approved for the issuance of a vehicle group designation.
D. If the person was operating a commercial motor vehicle and was arrested for an offense enumerated in subsection (c) hereof, other than a violation of paragraph (b)(3)G. or subsection (i) hereof, impose the license sanction described in paragraph (f)(1)A. hereof and the license sanction described in paragraph (f)(1)B. or C. hereof, if applicable.
(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 M.C.L.A. 257.322, M.S.A. 9.2022. Not less than five days notice of the hearing shall be mailed to the person requesting the hearing, to the peace officer who filed the report under subsection (d) hereof, and if the prosecuting attorney requests receipt of the notice, to the prosecuting attorney of the city 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 one 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. Except for delay attributable to the unavailability of the defendant, a witness, or material evidence, or due to an interlocutory appeal or exceptional circumstances, but not a delay caused by docket congestion, the hearing shall be finally adjudicated within 77 days after the date of arrest. The hearing officer shall not impose any sanction for a failure to comply with this time limit. 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 paragraph (c)(1) hereof.
B. Whether the person was placed under arrest for a crime described in paragraph (c)(1) hereof.
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 the rights under paragraph (b)(4)B. hereof.
(3) A person shall not order a hearing officer to make a particular finding on any issue enumerated in subsection A to D.
(4) The hearing officer shall make a record of proceedings held pursuant to paragraph (f)(2) hereof. 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 Michigan of 1969 (M.C.L.A. 24.286, M.S.A. 3.560(186)), as amended. Upon notification of the filing of a petition for judicial review pursuant to Act No. 300 of the Public Acts of Michigan of 1949 (M.C.L.A. 257.323, M.S.A. 9.2023), the hearing officer shall transmit to the court in which the petition was filed, not less than ten days before the matter is set for review, the original or a certified copy of the official record of the proceedings. Proceedings at which evidence was presented need not be transcribed and transmitted if the sole reason for review is to determine whether or not the court will order the issuance of a restricted license. 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.
(5) After a hearing, if the person who requested the hearing does not prevail, the secretary of state shall suspend or deny issuance of a license or driving permit or a nonresident operating privilege of the person for a period of one year, or, for a second or subsequent refusal within seven years, for two years. If the person is a resident without a license or permit to operate a vehicle in the state, the secretary of state shall deny to the person the issuance of a license or permit for a period of one year, or, for a second or subsequent refusal within seven years, for two years. The person may file a petition in the circuit court of the county in which the arrest was made to review the suspension or denial as provided in M.C.L.A. 257.323, M.S.A. 9.2023. If the person was operating a commercial motor vehicle, impose the sanction prescribed under subsection (1)(b) or (1)(c), as applicable. The person may file a petition in the circuit court of the county in which the arrest was made to review the suspension or denial as provided in section 323. If the person was operating a commercial motor vehicle and was arrested for an offense enumerated in section 625c other than a violation of section 625a(5) or 625m, impose the license sanctions described in subparagraph A and B. If after the hearing the person who requested the hearing prevails, the peace officer who filed the report 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 Act No. 300 of the Public Acts of Michigan of 1949 (M.C.L.A. 257.323, M.S.A. 9.2023), as amended.
(6) When it has been finally determined that a nonresident's privilege to operate a vehicle in the state has been suspended or denied, the department shall give notice in writing of the action taken to the motor vehicle administrator of the state of the person's residence and of each state in which the person has a license to operate a motor vehicle.
(g) Duties of Peace Officer if Person Refuses Chemical Test.
(1) If a person refuses a chemical test offered pursuant to paragraph(b)(3) hereof, or submits to the chemical test, or a chemical test that is performed pursuant to a court order, and the test reveals an unlawful alcohol content, the peace officer who requested the person to submit to the test shall do all of the following:
A. On behalf of the Secretary of State, immediately confiscate the person's license or permit to operate a motor vehicle, and, if the person is otherwise eligible for a license or permit, issue a temporary license or permit to the person. The temporary license or permit shall be on a form provided by the Secretary of State.
B. Except as provided in paragraph (g)(2) hereof, immediately do all of the following:
1. Forward a copy of the written report of the person's refusal to submit to a chemical test to the Secretary of State.
2. Notify the Secretary of State by means of the law enforcement information network that a temporary license or permit was issued to the person.
3. Destroy the person's driver's license or permit.
(2) If a person submits to a chemical test offered pursuant to paragraph (b)(3) hereof, that requires an analysis of blood or urine and a report of the results of that chemical test is not immediately available, the peace officer who requested the person to submit to the test shall comply with paragraph (g)(1)A. hereof pending receipt of the test report. If the report reveals an unlawful alcohol content, the peace officer who requested the person to submit to the test shall immediately comply with paragraph (g)(1)B. hereof. If the report does not reveal an unlawful alcohol content, the peace officer who requested the person to submit to the test shall immediately notify the person of the test results, and immediately return the person's license or permit by first class mail to the address given at the time of arrest.
(3) A temporary license or permit issued under this section is valid for one of the following time periods:
A. If the case is not prosecuted, for 90 days after issuance or until the person's license or permit is suspended pursuant to subsection (g) hereof, whichever occurs earlier. The prosecuting attorney shall notify the Secretary of State if a case referred to the prosecuting attorney is not prosecuted. The arresting law enforcement agency shall notify the Secretary of State if a case is not referred to the prosecuting attorney for prosecution.
B. If the case is prosecuted, until the criminal charges against the person, are dismissed, the person is acquitted of those charges, or the persons license or permit is suspended, restricted, or revoked.
(4) As used in this subsection, the term "unlawful alcohol content" means any of the following, as applicable:
A. If the person tested is less than 21 years of age, 0.02 grams or more of alcohol per 100 milliliters of blood, per 210 liters of breath or per 67 milliliters of urine.
B. If the person tested was operating a commercial motor vehicle within this City, 0.04 grams or more of alcohol per 100 milliliters of blood, per 210 liters of breath, or 67 milliliters of urine.
C. If the person tested is not a person described in paragraph (g)(4)A. or B. hereof, 0.08 grams or more of alcohol per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(h) Commercial Motor Vehicle Drivers; Operation of Vehicle While Intoxicated; Blood Alcohol Limits; Warrantless Arrest; Violation; Penalty.
(1) A person, whether licensed or not, who has an alcohol content of 0.04 grams or more but not more than 0.07 grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, shall not operate a commercial motor vehicle within this City.
(2) A peace officer may arrest a person without a warrant if the peace officer has reasonable cause to believe that the person was, at the time of an accident, the driver of a commercial motor vehicle involved in the accident and was operating the vehicle in violation of this subsection; or the person is found in the driver's seat of a commercial vehicle parked or stopped on a highway or street within this City if any part of the vehicle intrudes into the roadway and the peace officer has reasonable cause to believe the person was operating the vehicle in violation of this subsection.
(3) Except as otherwise provided in subsection (4), a person who is convicted of a violation of this subsection is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than three hundred dollars ($300.00), or both, together with costs of the prosecution.
(4) A person who violates this section within seven years of one prior conviction may be sentenced to imprisonment for not more than one year or a fine of not more than $1,000.00 or both.
(5) A term of imprisonment imposed under subsection (4) shall not be suspended.
(6) Subject to section (8), as used in this section, "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, or a law of another state substantially corresponding to a law of this state:
A. Except as provided in section (7), a violation or attempted violation of any of the following:
1. This section.
2. M.C.L.A. 257.625, except a violation of M.C.L.A. 257.625(2), or a violation of any prior enactment of M.C.L.A. 257.625 in which the defendant operated a vehicle while under the influence of intoxicating or alcoholic liquor or a controlled substance, or a combination of intoxicating or alcoholic liquor and a controlled substance, or while visibly impaired, or with an unlawful bodily alcohol content.
3. Former M.C.L.A. 257.625b.
B. Negligent homicide, manslaughter, or murder resulting from the operation of a vehicle or an attempt to commit any of those crimes.
(7) Only one violation or attempted violation of M.C.L.A. 257.625(6), a local ordinance substantially corresponding to M.C.L.A. 625(6), or a law of another state substantially corresponding to M.C.L.A. 257.625(6) may be used as a prior conviction.
(8) If two or more convictions described in subsection (6) are convictions for violations arising out of the same transaction, only one conviction shall be used to determine whether the person has a prior conviction.
(i) Vehicle Forfeitures; Distribution of Proceeds.
(1) Except as otherwise provided in this subsection and in addition to any other penalty provided for in this subsection, the judgment of sentence for a conviction for a violation of paragraph (a)(1) hereof may require one of the following with regard to the vehicle used in the offense if the defendant owns the vehicle in whole or in part or leases the vehicle:
A. Forfeiture of the vehicle if the defendant owns the vehicle in whole or in part.
B. Return of the vehicle to the lessor if the defendant leases the vehicle.
(2) The vehicle may be seized pursuant to an order of seizure issued by the court having jurisdiction upon a showing of probable cause that the vehicle is subject to forfeiture or return to the lessor.
(3) The forfeiture of a vehicle is subject to the interest of the holder of a security interest who did not have prior knowledge of or consent to the violation.
(4) Within fourteen days after the defendant's conviction for a violation described in paragraph (a)(1) hereof, the prosecuting attorney may file a petition with the court for the forfeiture of the vehicle or to have the court order return of a leased vehicle to the lessor. The prosecuting attorney shall give notice by first-class mail or other process to the defendant and his or her attorney, to all owners of the vehicle and any person holding a security interest in the vehicle that the court may require forfeiture or return of the vehicle.
(5) If a vehicle is seized before disposition of the criminal proceedings, a defendant who is an owner or lessee of the vehicle may move the court having jurisdiction over the proceedings to require the seizing agency to file a lien against the vehicle and to return the vehicle to the owner or lessee pending disposition of the criminal proceedings. The court shall hear the motion within seven days after the motion is filed. If the defendant establishes at the hearing that he or she holds the legal title to the vehicle or that he or she has a leasehold interest and that it is necessary for him or her or a member of his or her family to use the vehicle pending the outcome of the forfeiture action, the court may order the seizing agency to return the vehicle to the owner or lessee. If the court orders the return of the vehicle to the owner or lessee, the court shall order the defendant to post a bond in an amount equal to the retail value of the vehicle and shall also order the seizing agency to file a lien against the vehicle.
(6) Within fourteen days after notice by the prosecuting attorney is given under paragraph (i)(4) hereof, the defendant, an owner, lessee, or holder of a security interest may file a claim of interest in the vehicle with the court. Within twenty-one days after the expiration of the period for filing claims, but before sentencing, the court shall hold a hearing to determine the legitimacy of any claim, the extent of any co-owner's equity interest, the liability of the defendant to any co-lessee, and whether to order the vehicle forfeited or returned to the lessor. In considering whether to order forfeiture, the court shall review the defendant's driving record to determine whether the defendant has multiple convictions under M.C.L.A. 257.625 or a local ordinance substantially corresponding to M.C.L.A. 257.625, or multiple suspensions, restrictions, or denials under M.C.L.A. 257.904, or both. If the defendant has multiple convictions under M.C.L.A. 257.625, or multiple suspensions, restrictions, or denials under M.C.L.A. 257.904, or both, that factor shall weigh heavily in favor of forfeiture.
(7) If a vehicle is forfeited under this subsection, the unit of government that seized the vehicle shall sell the vehicle and dispose of the proceeds in the following order of priority:
A. Pay any outstanding security interest of a secured party who did not have prior knowledge of or consent to the commission of the violation.
B. Pay the equity interest of a co-owner who did not have prior knowledge of or consent to the commission of the violation.
C. Satisfy any order of restitution entered in the prosecution for the violation.
D. Pay the claim of each person who shows that he or she is a victim of the violation to the extent that the claim is not covered by an order of restitution.
E. Pay any outstanding lien against the property that has been imposed by a governmental unit.
F. Pay the proper expenses of the proceedings for forfeiture and sale, including, but not limited to, expenses incurred during the seizure process and expenses for maintaining custody of the property, advertising and court costs.
G. The balance remaining after the payment pursuant to paragraphs (i)(7)A. to F. hereof, shall be distributed by the court having jurisdiction over the forfeiture proceedings to the unit or units of government substantially involved in effecting the forfeiture. Seventy-five percent of the money received by a unit of government under this subdivision shall be used to enhance enforcement of the criminal laws and 25% of the money shall be used to implement the Crime Victim's Rights Act, Act No. 87 of the Public Acts of 1985, being M.C.L.A. 780.751 to 780.834. A unit of government receiving money under this subsection shall report annually to the Department of Management and Budget the amount of money received under this subsection that was used to enhance enforcement of the criminal laws and the amount that was used to implement the Crime Victim's Rights Act.
(8) The court may order the defendant to pay to a co-lessee any liability determined under paragraph (i)(6) hereof. The order may be enforced in the same manner as a civil judgment.
(9) The return of a vehicle to the lessor under this subsection does not affect or impair the lessor's rights or the defendant's obligations under the lease.
(10) If the prosecuting attorney intends to seek a sanction under this subsection based upon the defendant having one or more prior convictions, the prosecuting attorney shall include on the complaint and information, or an amended complaint and information, filed in the district court, a statement listing the defendant's prior convictions.
(11) The failure of the court or prosecutor to comply with any time limit specified in this subsection does not preclude the court from ordering forfeiture of a vehicle or its return to a lessor, unless the court finds that the owner or claimant suffered substantial prejudice as a result of that failure.
(12) The forfeiture provisions of this subsection do not preclude the prosecuting attorney from pursuing a forfeiture proceeding under any other law of this State or any other provision under this section.
(j) Vehicle Immobilization.
(1) Vehicle immobilization applies as follows:
A. For a conviction under paragraph (a)(1), (3) or (11) hereof, with no prior convictions, the court may order vehicle immobilization for not more than 180 days.
B. For a conviction under paragraph (a)(1), (3) or (11) hereof, within seven years after a prior conviction, the court shall order vehicle immobilization for not less than 90 days or more than 180 days.
C. For a conviction under paragraph (a)(1), (3) or (11) hereof, within ten years after two or more prior convictions, the court shall order vehicle immobilization for not less than one year or more than three years.
(2) For conviction or civil infraction determination resulting from a violation that occurred during a period of suspension, revocation, or denial, the following apply:
A. Except as provided in subdivision (b), for one prior suspension, revocation, or denial under section 904(10), (11), or (12) or former section 904(2) or (4) within the past seven years, the court may order vehicle immobilization for not more than 180 days.
B. Except as provided in subdivision (c) and (d), if the person is convicted under section 904(4) or (5), the court shall order vehicle immobilization for not more than 180 days.
C. For any combination of 2 or 3 prior suspensions, revocations, or denials under section 904(10), (11), or (12) or former section 904(c) or (4) within the past seven years, the court shall order vehicle immobilization for not less than one year or more than three years.
D. For any combination of 4 or more prior suspensions, revocations, or denials under section 904(10), (11), or (12) or former section 904(2) or (4) within the past seven years, the court shall order vehicle immobilization for not less than one year or more than three years.
(2) The defendant shall provide the court the vehicle identification number and registration plate number of the vehicle involved in the violation.
(3) The court may order vehicle immobilization under this subsection under either of the following circumstances:
A. The defendant is the owner, co-owner, lessee, or co-lessee of the vehicle operated during the violation.
B. The owner, co-owner, lessee, or co-lessee knowingly permitted the vehicle to be operated in violation of paragraph (a)(2) hereof, regardless of whether a conviction resulted.
(4) An order required to be issued under this subsection shall not be suspended.
(5) If a defendant is ordered imprisoned for the violation for which immobilization is ordered, the period of immobilization shall begin at the end of the period of imprisonment.
(6) As used in this subsection:
A. Subject to paragraph (j)(7) hereof, "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, or a law of another state substantially corresponding to a law of this State:
1. Except as otherwise provided in this paragraph, a violation or attempted violation of M.C.L.A. 257.625(1), (3), (4), (5), (6), or (7), 625m, former M.C.L.A. 625(1) or (2), or former M.C.L.A. 625b. However, only one violation or attempted violation of section 625(6), a local ordinance substantially corresponding to M.C.L.A. 625(6), or a law of another state substantially corresponding to M.C.L.A. 625(6), may be used as a prior conviction.
2. M.C.L.A. 257.625m.
3. Former M.C.L.A. 257.625b.
4. Negligent homicide, manslaughter, or murder resulting from the operation of a vehicle or an attempt to commit any of those crimes.
B. "Vehicle immobilization" means requiring the motor vehicle involved in the violation to be immobilized in a manner provided in paragraph (j)(10) hereof.
(7) If two or more convictions described in paragraph (j)(6) A.1 hereof are convictions for violations arising out of the same incident, only one conviction shall be used to determine whether the person has a prior conviction.
(k) Ignition Interlock Device.
(1) The department shall approve an ignition interlock device certified by a department approved laboratory as complying with the national highway traffic safety administration's mode specifications for breath alcohol ignition interlock devices (BAIID), 57 F.R. p. 11772, April 7, 1992. Subject to subsection (5), the department shall public a list of all manufacturers of approved certified devices.
(2) The secretary of state shall promulgate rules to implement this section in compliance with the Administrative Procedures Act of 1969, Act 306 of the Public Acts of 1969, M.C.L.A. 24.201 to 24.328.
(3) The manufacturer of an ignition interlock device shall bear the cost of that device's certification.
(4) A laboratory that certifies an ignition interlock device as provided in this section shall immediately notify the department of that certification.
(5) The department shall not include the manufacturer of a certified ignition interlock device on the list of manufacturers published under subsection (1) unless the manufacturer complies with all of the following:
A. The manufacturer has filed copies of all of the following with the department:
1. A bound executed as provided in M.C.L.A. 257.625(o) or letter of credit.
2. Evidence of insurance as described in M.C.L.A. 257.625l.
3. An affidavit that the ignition interlock device is all of the following:
(a) An alcohol concentration measuring device that prevents a motor vehicle from being started at any time without first determining through a deep lung sample the operator's breath alcohol level.
(b) Calibrated to render the motor vehicle incapable of being started if the device detects an alcohol content of 0.025 grants or more per 210 liters of breath of the person who offers a breath sample.
(c) Set a periodically take samples while the vehicle is in operation and to do one or both of the following:
i. Emit a warning signal when the device detects an alcohol content of 0.025 grams or more per 210 liters of breath in the person who offers a breath sample.
ii. If it detects an alcohol content of 0.04 grams or more per 210 liters of breath of the person who offers the breath sample, render the vehicle inoperable as soon as the vehicle is no longer being operated.
B. The manufacturer of ignition interlock devices provides a list of installers who are authorized to install and service its ignition interlock devices to the secretary of state.
C. Agrees to have service locations within 50 miles of any location within this state.
D. Agrees to provide an ignition interlock device without cost to a person whose gross income for the immediately preceding tax year based on his or her state income tax return was less than 150% of the official poverty line for that same tax year established in the poverty guidelines issued by the secretary of health and human services under authority of Section 673(2) of the community services block grant act, subtitle B of title VI of the omnibus budget reconciliation act of 1981, Public Law 97-35, 42 U.S.C. 9902. A person in whose vehicle an ignition interlock device is installed without cost under this subdivision shall pay a maintenance fee to the installer of not more than $1.00 per day.
E. Agrees to periodically monitor installed ignition interlock devices and if monitoring indicates that the device has been circumvented, to communicate that fact to the secretary of state or to the court, as appropriate.
(6) A manufacturer that has made a filing under subsection (5) shall immediately notify the department if the device no longer meets the requirements of subsection (5).
(7) A person who knowingly provides false information to the department under subsection (4) or (5) is guilty of a misdemeanor punishable by imprisonment for not more than one year or a fine of not more than $1,000.00, or both, together with costs of the prosecution.
(8) A person who negligently fails to comply with subsection (6) is guilty of a misdemeanor punishable by imprisonment for not more than one year or a fine of not more than $1,000.00, or both, together with costs of the prosecution.
(l) Ignition Interlock Device; Tampering, Circumventing, Misusing device.
(1) The manufacturer of an ignition interlock device shall design a warning label, and the person who has an ignition interlock device shall promptly affix that label to each ignition interlock device upon installation. The label shall contain a warning that any person tampering, circumventing, or otherwise misusing the device is guilty of a misdemeanor punishable as provided by law.
(2) A person who has an ignition interlock device installed and whose driving privilege is restricted shall not request or solicit any other person to blow into an ignition interlock device or to start a vehicle equipped with the device for the purpose of providing the person whose driving privilege is restricted with an operable vehicle.
(3) A person shall not blow into an ignition interlock device or start a motor vehicle equipped with the device for the purpose of providing an operable vehicle to a person who has an interlock device installed and whose driving privilege is restricted.
(4) A person shall not tamper with or circumvent the operation of an ignition interlock device.
(5) A person who violates subsection (2), (3), or (4) is guilty of a misdemeanor punishable by imprisonment for not more than six months or a fine of not more than $5,000.00, or both.
(6) As used in this section, "ignition interlock device" or "device" means an alcohol concentration measuring device that prevents a motor vehicle from being started at any time without first determining through a deep lung sample the operator's breath alcohol level. The system shall be calibrated so that the motor vehicle may not be started if the breath alcohol level of the operator, as measured by the test, reaches a level of 0.025 grams per 210 liters of breath.
(7) The state, or the department, its officers, employees, or agents, or a court, its officers, employees, or agents are not liability in any claim or action that may arise, directly or indirectly, out of any act or omission by a manufacturer, installer, or servicing agent of an ignition interlock device that results in damage to persons or property.
(8) A person shall not sell, lease, install, or monitor in a vehicle in this state an ignition interlock device unless the ignition interlock device manufacturer and provider carries liability insurance covering product liability, including, but not limited to, insurance to indemnify the department and any person injured as a result of a design defect or the calibration or removal of the ignition interlock device or a misrepresentation about the ignition interlock device. The insurance required by this subsection shall be in an amount of not less than $1,000,000.00 per incident.
(9) The provider of insurance described in this section may cancel the insurance upon 30 days' written notice to the department and is not liable for a claim arising from an event that occurs after the effective date of a cancellation made in compliance with this section.
(10) An ignition interlock device shall be serviced according to manufacturer's standards. Service shall include, but not be limited to, physical inspection of the device and vehicle for tampering, calibration of the device, and monitoring of the date contained within the device's memory. Only authorized employees of the manufacturer or the department or other persons approved by the court, may observe the installation of a device. Reasonable security measures must be taken to prevent the customer from observing the installation of a device or obtaining access to installation materials.