(A) General.
(1) A chemical test described in § 95.213 of this chapter shall be administered at the request of a peace officer having reasonable grounds to believe the person has committed a crime described in § 95.210(A) of this chapter. A person who takes a chemical test administered at the request of a peace officer, as provided in § 95.213 of this chapter, shall be given a reasonable opportunity to have someone of the person’s own choosing administer one of the chemical tests described in § 95.213 of this chapter within a reasonable time after the person’s detention, and the results of the test are admissible and shall be considered with other competent evidence in determining the innocence or guilt of the defendant. If the person charged is administered a chemical test by someone of the person’s own choosing, the person charged is responsible for obtaining a chemical analysis of the test sample.
(2) If, after an accident, the operator of a vessel involved in the accident is transported to a medical facility and a sample of the operator’s blood is withdrawn at that time for the purpose of medical treatment, the results of a chemical analysis of that sample are admissible in any civil or criminal proceeding to show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 division (A)(2). A medical facility or person disclosing information in compliance with this division (A)(2) is not civilly or criminally liable for making the disclosure.
(3) If, after an accident, the operator of a vessel involved in the accident is deceased, a sample of the decedent’s blood shall be withdrawn in a manner directed by the medical examiner for the purpose of determining the amount of alcohol or the presence of a controlled substance, or both, in the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 state.
(Prior Code, § 21.5-127)
(B) Chemical test; introduction of other competent evidence; availability of test results.
(1) The provisions of § 95.213 of this chapter and division (A) above relating to a chemical testing do not limit the introduction of any other competent evidence bearing upon the question of whether or not a person was impaired by, or under the influence of, intoxicating liquor or a controlled substance, or both, or whether the person had a blood alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath or per 67 milliliters of urine.
(2) If a chemical test described in § 95.213 of this chapter and division (A) above 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 day of the trial. The results of the test shall be offered as evidence by the prosecution in that trial. Failure to fully comply with the request bars the admission of the results into evidence by the prosecution.
(Prior Code, § 21.5-128)
(C) Chemical analysis of blood, urine or breath; amount of alcohol in operator’s blood; presumptions; refusal to submit to chemical test as evidence.
(1) Except in a prosecution relating solely to a violation of § 95.210(A)(2) of this chapter, the amount of alcohol in the operator’s blood at the time alleged as shown by chemical analysis of the person’s blood, urine or breath gives rise to the following presumptions:
(a) If at the time defendant had an alcohol content of 0.07 grams or less per 100 milliliters of blood, per 210 liters of breath or per 67 milliliters of urine, it shall be presumed that the defendant’s ability to operate a vessel was not impaired due to the consumption of intoxicating liquor and that the defendant was not under the influence of intoxicating liquor;
(b) If at the time the defendant had an alcohol content of more than 0.07 grams, but less than 0.10 grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, it shall be presumed that the defendant’s ability to operate a vessel was impaired within the provisions of § 95.210(C) of this chapter due to the consumption of intoxicating liquor; and
(c) If at the time the defendant had an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, it shall be presumed that the defendant was under the influence of intoxicating liquor.
(2) A person’s refusal to submit to a chemical test as provided in § 95.213 and division (A) above is admissible in a criminal prosecution for a crime described in §§ 95.210(A) and (C) and division (F) below only for the purpose of showing that a test was offered to the defendant, but not as evidence in determining innocence or guilt of the defendant. The jury shall be instructed accordingly.
(Prior Code, § 21.5-129)
(D) Advising defendant of penalties and sanctions; ordering screening; assessment and rehabilitative services.
(1) Before accepting a plea of guilty or nolo contendere under §§ 95.210, 95.211 and 95.999 of this chapter, the court shall advise the accused of the maximum possible term of imprisonment and the maximum possible fine that may be imposed for the violation, and shall advise the defendant that the maximum possible sanctions that may be imposed will be based upon the boating record maintained by the Secretary of State or other evidence of a prior conviction as provided in § 95.999 of this chapter.
(2) Before imposing sentence, other than court ordered operating sanctions, for a violation of § 95.210(A) and (C) of this chapter, the court shall order the person to undergo screening and assessment by a person or agency designated by the office of substance abuse services to determine whether the person is likely to benefit from rehabilitative services, including alcohol or drug education or treatment programs. As part of the sentence, the court may order the person to participate in and successfully complete one or more appropriate rehabilitative programs. The person shall pay for the costs of the screening, assessment and rehabilitative services.
(Prior Code, § 21.5-130)
(E) Sentencing as multiple offender; consideration of prior convictions; sanctions; “another boating substance abuse offense” defined.
(1) Immediately upon acceptance by the court of a plea of guilty or nolo contendere or upon entry of a verdict of guilty for a violation of § 95.210(A) and (C) of this chapter whether or not the person is eligible to be sentenced as a multiple offender, the court shall consider all prior convictions currently entered upon the boating record of the person or other evidence of prior convictions established under § 95.999 of this chapter, except those convictions that, upon motion by the defendant, are determined by the court to be constitutionally invalid, and shall impose the following sanctions:
(a) For a conviction under § 95.210(A) of this chapter:
1. If the court finds that the person has no prior convictions within seven years for a violation of § 95.210(A) and (C) of this chapter, former § 171(1), (3), (4) or (5), or another boating substance abuse offense, or that the person has one prior conviction within seven years for a violation of § 95.210(C) of this chapter; former § 171(3) of the Marine Safety Act; former § 73b of the Marine Safety Act; a local ordinance substantially corresponding to § 95.210(C) of this chapter or former § 73b of the Marine Safety Act; or law of another state substantially corresponding to § 95.210(C) of this chapter or former § 73b of the Marine Safety Act, the court may order that the person not operate a vessel on the waters of the state for not less than one year or more than two years;
2. If the court finds that the person has one or more prior convictions within seven years for a violation of § 95.210(A) and (C) of this chapter; former § 73 of the Marine Safety Act; a local ordinance substantially corresponding to § 95.210(A) of this chapter or former § 73 of the Marine Safety Act; or a law of another state substantially corresponding to § 95.210(A) of this chapter, or former § 73 of the Marine Safety Act, the court shall order that the person not operate a vessel on the waters of the state for not less than two years; and
3. If the court finds that the person has two or more prior convictions within ten years for a violation of § 95.210(A) and (C) of this chapter, or former § 171(1), (3), (4) or (5) or another boating substance abuse offense, the court shall order with no expiration date that the person not operate a vessel on the waters of the state.
1. If the court finds that the convicted person has no prior conviction within seven years for a violation of § 95.210(A) and (C) of this chapter, or former § 171(1), (3), (4) or (5) or another boating substance abuse offense, the court may order that the person not operate a vessel on the waters of the state for not less than six months or more than one year;
2. If the court finds that the person has one prior conviction within seven years for a violation of § 95.210(A) and (C) of this chapter; former § 73 of the Marine Safety Act; a local ordinance substantially corresponding to § 95.210(A) of this chapter or former § 73 of the Marine Safety Act; or a law of another state substantially corresponding to § 95.210(A) of this chapter, or former § 73 of the Marine Safety Act, the court shall order that the person not operate a vessel on the waters of the state for not less than two years; and
3. If the court finds that the person has two or more prior convictions within ten years for a violation of § 95.210(A) and (C) of this chapter, or former § 171(1), (3) or (5) or another boating substance abuse offense, the court shall order with no expiration date that the person not operate a vessel on the waters of the state.
(2) As used in this section, ANOTHER BOATING SUBSTANCE ABUSE OFFENSE means former §§ 73 or 73b of the Marine Safety Act, a local ordinance substantially corresponding to § 95.210(A) or (C) of this chapter or former §§ 73 or 73b of the Marine Safety Act, or a law of another state substantially corresponding to § 95.210(A) and (C) of this chapter, or former §§ 73 or 73b of the Marine Safety Act.
(Prior Code, § 21.5-131)
(F) Consent to chemical tests of blood, breath or urine; circumstances; exception; administration.
(1) A person who operates a vessel on the waters of the 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 in all of the following circumstances:
(a) The person is arrested for a violation of § 95.210(A) and (C) of this chapter; and/or
(b) The person arrested for negligent homicide, manslaughter or murder resulting from the operation of a vessel, and the peace officer had reasonable grounds to believe that the person was operating the vessel while impaired by, or under the influence of, intoxicating liquor or a controlled substance, or both, or while having a blood alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(2) A person who is afflicted with hemophilia, diabetes or a condition requiring the use of an anticoagulant under the direction of a physical shall not be considered to have given consent to the withdrawal of blood.
(3) A chemical test described in division (F)(1) above shall be administered as provided in § 95.213 of this chapter and division (A) above.
(Prior Code, § 21.5-132)
(G) Refusal to submit to chemical test at request of peace officer; obtaining court order; forwarding report to Secretary of State.
(1) If a person refuses the request of a peace officer to submit to a chemical test offered pursuant to § 95.213 of this chapter and division (A) above, a test shall not be given without a court order, but the officer may seek to obtain the court order.
(2) If a person refuses a chemical test offered pursuant to § 95.213 of this chapter and division (A) above, the peace officer who requested the person to submit to the test shall immediately forward a written report to the Secretary of State. The report shall state that the officer had reasonable grounds to believe the person committed a crime described in § 95.210(A) above and division (F)(1) above and that the person refused to submit to the test upon the request of the peace officer and has been advised of the consequences of the refusal. The form of the report shall be prescribed and furnished by the Secretary of State.
(Prior Code, § 21.5-133)
(H) Refusal to submit to chemical test; notice of right to request hearing.
(1) If a person refuses to submit to a chemical test pursuant to § 95.213 of this chapter and division (A) above, 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 division (I) below. 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 issuance of an order that the person not operate a vessel on the waters of the state. The notice shall also state that here is not a requirement that the person retain counsel for the hearing, though counsel is permitted to represent the person at the hearing.
(Prior Code, § 21.5-134)
(I) Refusal to submit to chemical test; failure to request hearing; manner and conditions of hearing if requested; record of proceedings; order; petitions to review order or to review determination of hearing officer.
(1) If a person who refuses to submit to a chemical test pursuant to § 95.213 of this chapter and division (A) above does not request a hearing within 14 days of the date of notice pursuant to § 95.213 of this chapter, the Secretary of State shall issue an order that the person not operate a vessel on the waters of the state for six months or, for a second or subsequent refusal within seven years, for one year.
(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 § 322 of the state’s Vehicle Code, Public Act 300 of 1949, being M.C.L.A. § 257.322. A person shall not order a hearing officer to make a particular finding on any issue enumerated under divisions (I)(2)(a) through (I)(2)(d) below. 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 division (G) above and, if the Prosecuting Attorney requests receipt of the notice, to the Prosecuting Attorney of the county where the arrest was made. The hearing officer may administer oaths, issue subpoenas for the attendance of necessary witnesses and grant a reasonable request for an adjournment. Not more than 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 and, except for delay attributable to the unavailability of the defendant, a witness or material evidence or to an interlocutory appeal or exceptional circumstances, but not for delay attributable to docket congestion, shall be finally adjudicated within 77 days after the date of arrest. The hearing shall cover only the following issues:
(a) Whether the peace officer had reasonable grounds to believe that the person had committed a crime described in § 95.210(A) of this chapter or division (F)(1) above;
(b) Whether the person was placed under arrest for a crime described in § 95.210(A) of this chapter or division (F)(1) above;
(c) If the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable; and
(d) Whether the person was advised of his or her rights under § 95.213 of this chapter.
(3) The hearing officer shall make a record of proceedings held pursuant to division (I)(2) above. The record shall be prepared and transcribed in accordance with § 86 of the Administrative Procedures Act of 1969, Public Act 306 of 1969, being M.C.L.A. § 24.286. Upon notification of the filing of a petition for judicial review in Circuit Court and not less than ten days before the matter is set for review, the hearing officer shall transmit to the court in which the petition is filed the original or a certified copy of the official record of the proceedings. The parties to the proceedings for judicial review may stipulate that the record be shortened. A party unreasonably refusing to stipulate to a shortened record may be taxed by the court in which the petition is filed for the additional costs. The court may permit subsequent corrections to the record.
(4) After a hearing, if the person who requested the hearing does not prevail, the Secretary of State shall order that the person not operate a vessel on the waters of the state for six months or, for a second or subsequent refusal within seven years, for one year. The person may file a petition in the Circuit Court of the county in which the arrest was made to review the order. If, after the hearing, the person who requested the hearing prevails, the peace officer who filed the report under section 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.
(Prior Code, § 21.5-135)
(Ord. 1048, passed 5-18-1998)