HOUSE BILL No. 5318 February 8, 2000, Introduced by Reps. Garcia, Birkholz, Bovin, Richner, Bob Brown, Voorhees, Mortimer, Vander Roest and Jansen and referred to the Committee on Criminal Law and Corrections. A bill to amend 1949 PA 300, entitled "Michigan vehicle code," by amending sections 625 and 625m (MCL 257.625 and 257.625m), section 625 as amended by 1999 PA 73 and section 625m as amended by 1998 PA 347. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 625. (1) A person, whether licensed or not, shall not 2 operate a vehicle upon a highway or other place open to the gen- 3 eral public or generally accessible to motor vehicles, including 4 an area designated for the parking of vehicles, within this state 5 if either of the following applies: 6 (a) The person is under the influence of intoxicating 7 liquor, a controlled substance, or a combination of intoxicating 8 liquor and a controlled substance. 02932'99 DAM 2 1 (b) The person has an alcohol content of 0.10 grams or more 2 per 100 milliliters of blood, per 210 liters of breath, or per 67 3 milliliters of urine. 4 (2) The owner of a vehicle or a person in charge or in con- 5 trol of a vehicle shall not authorize or knowingly permit the 6 vehicle to be operated upon a highway or other place open to the 7 general public or generally accessible to motor vehicles, includ- 8 ing an area designated for the parking of motor vehicles, within 9 this state by a person who is under the influence of intoxicating 10 liquor, a controlled substance, or a combination of intoxicating 11 liquor and a controlled substance, who has an alcohol content of 12 0.10 grams or more per 100 milliliters of blood, per 210 liters 13 of breath, or per 67 milliliters of urine, or whose ability to 14 operate the motor vehicle is visibly impaired due to the consump- 15 tion of intoxicating liquor, a controlled substance, or a combi- 16 nation of intoxicating liquor and a controlled substance. 17 (3) A person, whether licensed or not, shall not operate a 18 vehicle upon a highway or other place open to the general public 19 or generally accessible to motor vehicles, including an area des- 20 ignated for the parking of vehicles, within this state when, due 21 to the consumption of intoxicating liquor, a controlled sub- 22 stance, or a combination of intoxicating liquor and a controlled 23 substance, the person's ability to operate the vehicle is visibly 24 impaired. If a person is charged with violating subsection (1), 25 a finding of guilty under this subsection may be rendered. 26 (4) A person, whether licensed or not, who operates a motor 27 vehicle in violation of subsection (1) or (3) and by the 02932'99 3 1 operation of that motor vehicle causes the death of another 2 person is guilty of a felony punishable by imprisonment for not 3 more than 15 years or a fine of not less than $2,500.00 or more 4 than $10,000.00, or both. The judgment of sentence may impose 5 the sanction permitted under section 625n. If the vehicle is not 6 ordered forfeited under section 625n, the court shall order vehi- 7 cle immobilization under section 904d in the judgment of 8 sentence. 9 (5) A person, whether licensed or not, who operates a motor 10 vehicle in violation of subsection (1) or (3) and by the opera- 11 tion of that motor vehicle causes a serious impairment of a body 12 function of another person is guilty of a felony punishable by 13 imprisonment for not more than 5 years or a fine of not less than 14 $1,000.00 or more than $5,000.00, or both. The judgment of sen- 15 tence may impose the sanction permitted under section 625n. If 16 the vehicle is not ordered forfeited under section 625n, the 17 court shall order vehicle immobilization under section 904d in 18 the judgment of sentence. As used in this subsection, "serious 19 impairment of a body function" includes, but is not limited to, 1 20 or more of the following: 21 (a) Loss of a limb or use of a limb. 22 (b) Loss of a hand, foot, finger, or thumb or use of a hand, 23 foot, finger, or thumb. 24 (c) Loss of an eye or ear or use of an eye or ear. 25 (d) Loss or substantial impairment of a bodily function. 26 (e) Serious visible disfigurement. 02932'99 4 1 (f) A comatose state that lasts for more than 3 days. 2 (g) Measurable brain damage or mental impairment. 3 (h) A skull fracture or other serious bone fracture. 4 (i) Subdural hemorrhage or subdural hematoma. 5 (6) A person who is less than 21 years of age, whether 6 licensed or not, shall not operate a vehicle upon a highway or 7 other place open to the general public or generally accessible to 8 motor vehicles, including an area designated for the parking of 9 vehicles, within this state if the person has any bodily alcohol 10 content. As used in this subsection, "any bodily alcohol 11 content" means either of the following: 12 (a) An alcohol content of not less than 0.02 grams or more 13 than 0.07 grams per 100 milliliters of blood, per 210 liters of 14 breath, or per 67 milliliters of urine. 15 (b) Any presence of alcohol within a person's body resulting 16 from the consumption of intoxicating liquor, other than consump- 17 tion of intoxicating liquor as a part of a generally recognized 18 religious service or ceremony. 19 (7) A person, whether licensed or not, is subject to the 20 following requirements: 21 (a) He or she shall not operate a vehicle in violation of 22 subsection (1), (3), (4), or (5) while another person who is less 23 than 16 years of age is occupying the vehicle. A person who vio- 24 lates this subdivision is guilty of a crime punishable as 25 follows: 26 (i) Except as provided in subparagraph (ii), a person who 27 violates this subdivision is guilty of a misdemeanor and shall be 02932'99 5 1 sentenced to pay a fine of not less than $200.00 or more than 2 $1,000.00 and to 1 or more of the following: 3 (A) Imprisonment for not less than 5 days or more than 1 4 year. Not less than 48 hours of this imprisonment shall be 5 served consecutively. This term of imprisonment shall not be 6 suspended. 7 (B) Community service for not less than 30 days or more than 8 90 days. 9 (ii) If the violation occurs within 7 years of a prior con- 10 viction or within 10 years of 2 or more prior convictions, a 11 person who violates this subdivision is guilty of a felony and 12 shall be sentenced to pay a fine of not less than $500.00 or more 13 than $5,000.00 and to either of the following: 14 (A) Imprisonment under the jurisdiction of the department of 15 corrections for not less than 1 year or more than 5 years. 16 (B) Probation with imprisonment in the county jail for not 17 less than 30 days or more than 1 year and community service for 18 not less than 60 days or more than 180 days. Not less than 48 19 hours of this imprisonment shall be served consecutively. This 20 term of imprisonment shall not be suspended. 21 (b) He or she shall not operate a vehicle in violation of 22 subsection (6) while another person who is less than 16 years of 23 age is occupying the vehicle. A person who violates this subdi- 24 vision is guilty of a misdemeanor punishable as follows: 25 (i) Except as provided in subparagraph (ii), a person who 26 violates this subdivision may be sentenced to 1 or more of the 27 following: 02932'99 6 1 (A) Community service for not more than 60 days. 2 (B) A fine of not more than $500.00. 3 (C) Imprisonment for not more than 93 days. 4 (ii) If the violation occurs within 7 years of a prior con- 5 viction or within 10 years of 2 or more prior convictions, a 6 person who violates this subdivision shall be sentenced to pay a 7 fine of not less than $200.00 or more than $1,000.00 and to 1 or 8 more of the following: 9 (A) Imprisonment for not less than 5 days or more than 1 10 year. Not less than 48 hours of this imprisonment shall be 11 served consecutively. This term of imprisonment shall not be 12 suspended. 13 (B) Community service for not less than 30 days or more than 14 90 days. 15 (c) IntheA judgment of sentence under subdivision (a)(i) 16 or (b)(i), the court may, unless the vehicle is ordered forfeited 17 under section 625n, order vehicle immobilization as provided in 18 section 904d. IntheA judgment of sentence under subdivision 19 (a)(ii) or (b)(ii), the court shall, unless the vehicle is 20 ordered forfeited under section 625n, order vehicle immobiliza- 21 tion as provided in section 904d. 22 (d) This subsection does not prohibit a person from being 23 charged with, convicted of, or punished for a violation of sub- 24 section (4) or (5) that is committed by the person while violat- 25 ing this subsection. However, points shall not be assessed under 26 section 320a for both a violation of subsection (4) or (5) and a 02932'99 7 1 violation of this subsection for conduct arising out of the same 2 transaction. 3 (8) If a person is convicted of violating subsection (1), 4 all of the following apply: 5 (a) Except as otherwise provided in subdivisions (b) and 6 (c), the person is guilty of a misdemeanor punishable by 1 or 7 more of the following: 8 (i) Community service for not more than 45 days. 9 (ii) Imprisonment for not more than 93 days. 10 (iii) A fine of not less than $100.00 or more than $500.00. 11 (b) If the violation occurs within 7 years of a prior con- 12 viction, the person shall be sentenced to pay a fine of not less 13 than $200.00 or more than $1,000.00 and 1 or more of the 14 following: 15 (i) Imprisonment for not less than 5 days or more than 1 16 year. Not less than 48 hours of the term of imprisonment imposed 17 under this subparagraph shall be served consecutively. 18 (ii) Community service for not less than 30 days or more 19 than 90 days. 20 (c) If the violation occurs within 10 years of 2 or more 21 prior convictions, the person is guilty of a felony and shall be 22 sentenced to pay a fine of not less than $500.00 or more than 23 $5,000.00 and to either of the following: 24 (i) Imprisonment under the jurisdiction of the department of 25 corrections for not less than 1 year or more than 5 years. 26 (ii) Probation with imprisonment in the county jail for not 27 less than 30 days or more than 1 year and community service for 02932'99 8 1 not less than 60 days or more than 180 days. Not less than 48 2 hours of the imprisonment imposed under this subparagraph shall 3 be served consecutively. 4 (d) A term of imprisonment imposed under subdivision (b) or 5 (c) shall not be suspended. 6 (e) IntheA judgment of sentence under subdivision (a), 7 the court may order vehicle immobilization as provided in 8 section 904d. IntheA judgment of sentence under 9 subdivision (b) or (c), the court shall, unless the vehicle is 10 ordered forfeited under section 625n, order vehicle immobiliza- 11 tion as provided in section 904d. 12 (f) In the judgment of sentence under subdivision (b) or 13 (c), the court may impose the sanction permitted under 14 section 625n. 15 (9) A person who is convicted of violating subsection (2) is 16 guilty of a crime as follows: 17 (a) Except as provided in subdivisions (b) and (c), a misde- 18 meanor punishable by imprisonment for not more than 93 days or a 19 fine of not less than $100.00 or more than $500.00, or both. 20 (b) If the person operating the motor vehicle violated sub- 21 section (4), a felony punishable by imprisonment for not more 22 than 5 years or a fine of not less than $1,500.00 or more than 23 $10,000.00, or both. 24 (c) If the person operating the motor vehicle violated sub- 25 section (5), a felony punishable by imprisonment for not more 26 than 2 years or a fine of not less than $1,000.00 or more than 27 $5,000.00, or both. 02932'99 9 1 (10) If a person is convicted of violating subsection (3), 2 all of the following apply: 3 (a) Except as otherwise provided in subdivisions (b) and 4 (c), the person is guilty of a misdemeanor punishable by 1 or 5 more of the following: 6 (i) Community service for not more than 45 days. 7 (ii) Imprisonment for not more than 93 days. 8 (iii) A fine of not more than $300.00. 9 (b) If the violation occurs within 7 years of 1 prior con- 10 viction, the person shall be sentenced to pay a fine of not less 11 than $200.00 or more than $1,000.00, and 1 or more of the 12 following: 13 (i) Imprisonment for not less than 5 days or more than 1 14 year. Not less than 48 hours of the term of imprisonment imposed 15 under this subparagraph shall be served consecutively. 16 (ii) Community service for not less than 30 days or more 17 than 90 days. 18 (c) If the violation occurs within 10 years of 2 or more 19 prior convictions, the person is guilty of a felony and shall be 20 sentenced to pay a fine of not less than $500.00 or more than 21 $5,000.00 and either of the following: 22 (i) Imprisonment under the jurisdiction of the department of 23 corrections for not less than 1 year or more than 5 years. 24 (ii) Probation with imprisonment in the county jail for not 25 less than 30 days or more than 1 year and community service for 26 not less than 60 days or more than 180 days. Not less than 48 02932'99 10 1 hours of the imprisonment imposed under this subparagraph shall 2 be served consecutively. 3 (d) A term of imprisonment imposed under subdivision (b) or 4 (c) shall not be suspended. 5 (e) IntheA judgment of sentence under subdivision (a), 6 the court may order vehicle immobilization as provided in 7 section 904d. IntheA judgment of sentence under 8 subdivision (b) or (c), the court shall, unless the vehicle is 9 ordered forfeited under section 625n, order vehicle immobiliza- 10 tion as provided in section 904d. 11 (f) IntheA judgment of sentence under subdivision (b) or 12 (c), the court may impose the sanction permitted under 13 section 625n. 14 (11) If a person is convicted of violating subsection (6), 15 all of the following apply: 16 (a) Except as otherwise provided in subdivision (b), the 17 person is guilty of a misdemeanor punishable by 1 or both of the 18 following: 19 (i) Community service for not more than 45 days. 20 (ii) A fine of not more than $250.00. 21 (b) If the violation occurs within 7 years of 1 or more 22 prior convictions, the person may be sentenced to 1 or more of 23 the following: 24 (i) Community service for not more than 60 days. 25 (ii) A fine of not more than $500.00. 26 (iii) Imprisonment for not more than 93 days. 02932'99 11 1 (12) In addition to imposing the sanctions prescribed under 2 this section, the court may order the person to pay the costs of 3 the prosecution under the code of criminal procedure, 1927 4 PA 175, MCL 760.1 to776.22777.69. 5 (13) A person sentenced to perform community service under 6 this section shall not receive compensation and shall reimburse 7 the state or appropriate local unit of government for the cost of 8 supervision incurred by the state or local unit of government as 9 a result of the person's activities in that service. 10 (14) If the prosecuting attorney intends to seek an enhanced 11 sentence under this section or a sanction under section 625n or 12 904d based upon the defendant having 1 or more prior convictions, 13 the prosecuting attorney shall include on the complaint and 14 information, or an amended complaint and information, filed in 15 district court, circuit court, municipal court, or family divi- 16 sion of circuit court, a statement listing the defendant's prior 17 convictions AND LISTING ANY PERIOD THE DEFENDANT WAS INCARCERATED 18 WITHIN THE 10-YEAR PERIOD PRIOR TO THE VIOLATION. 19 (15) If a person is charged with a violation of subsection 20 (1), (3), (4), (5), or (7) or section 625m, the court shall not 21 permit the defendant to enter a plea of guilty or nolo contendere 22 to a charge of violating subsection (6) in exchange for dismissal 23 of the original charge. This subsection does not prohibit the 24 court from dismissing the charge upon the prosecuting attorney's 25 motion. 26 (16) A prior conviction shall be established at sentencing 27 by 1 or more of the following: 02932'99 12 1 (a) An abstract of conviction. 2 (b) A copy of the defendant's driving record. 3 (c) An admission by the defendant. 4 (17) Except as otherwise provided in subsection (19), if a 5 person is charged with operating a vehicle while under the influ- 6 ence of a controlled substance or a combination of intoxicating 7 liquor and a controlled substance in violation of subsection (1) 8 or a local ordinance substantially corresponding to 9 subsection (1), the court shall require the jury to return a spe- 10 cial verdict in the form of a written finding or, if the court 11 convicts the person without a jury or accepts a plea of guilty or 12 nolo contendere, the court shall make a finding as to whether the 13 person was under the influence of a controlled substance or a 14 combination of intoxicating liquor and a controlled substance at 15 the time of the violation. 16 (18) Except as otherwise provided in subsection (19), if a 17 person is charged with operating a vehicle while his or her abil- 18 ity to operate the vehicle was visibly impaired due to his or her 19 consumption of a controlled substance or a combination of intoxi- 20 cating liquor and a controlled substance in violation of 21 subsection (3) or a local ordinance substantially corresponding 22 to subsection (3), the court shall require the jury to return a 23 special verdict in the form of a written finding or, if the court 24 convicts the person without a jury or accepts a plea of guilty or 25 nolo contendere, the court shall make a finding as to whether, 26 due to the consumption of a controlled substance or a combination 27 of intoxicating liquor and a controlled substance, the person's 02932'99 13 1 ability to operate a motor vehicle was visibly impaired at the 2 time of the violation. 3 (19) A special verdict described in subsections (17) and 4 (18) is not required if a jury is instructed to make a finding 5 solely as to either of the following: 6 (a) Whether the defendant was under the influence of a con- 7 trolled substance or a combination of intoxicating liquor and a 8 controlled substance at the time of the violation. 9 (b) Whether the defendant was visibly impaired due to his or 10 her consumption of a controlled substance or a combination of 11 intoxicating liquor and a controlled substance at the time of the 12 violation. 13 (20) If a jury or court finds under subsection (17), (18), 14 or (19) that the defendant operated a motor vehicle under the 15 influence of or while impaired due to the consumption of a con- 16 trolled substance or a combination of a controlled substance and 17 an intoxicating liquor, the court shall do both of the 18 following: 19 (a) Report the finding to the secretary of state. 20 (b) On a form or forms prescribed by the state court admin- 21 istrator, forward to the department of state police a record that 22 specifies the penalties imposed by the court, including any term 23 of imprisonment, and any sanction imposed under section 625n or 24 904d. 25 (21) Except as otherwise provided by law, a record described 26 in subsection (20)(b) is a public record and the department of 02932'99 14 1 state police shall retain the information contained on that 2 record for not less than 7 years. 3 (22) In a prosecution for a violation of subsection (6), the 4 defendant bears the burden of proving that the consumption of 5 intoxicating liquor was a part of a generally recognized reli- 6 gious service or ceremony by a preponderance of the evidence. 7 (23) Subject to subsection (25), as used in this section, 8 "prior conviction" means a conviction for any of the following, 9 whether under a law of this state, a local ordinance substan- 10 tially corresponding to a law of this state, or a law of another 11 state substantially corresponding to a law of this state: 12 (a) Except as provided in subsection (24), a violation or 13 attempted violation of subsection (1), (3), (4), (5), (6), or 14 (7), section 625m, former section 625(1) or (2), or former sec- 15 tion 625b. 16 (b) Negligent homicide, manslaughter, or murder resulting 17 from the operation of a vehicle or an attempt to commit any of 18 those crimes. 19 (24) Except for purposes of the enhancement described in 20 subsection (11)(b), only 1 violation or attempted violation of 21 subsection (6), a local ordinance substantially corresponding to 22 subsection (6), or a law of another state substantially corre- 23 sponding to subsection (6) may be used as a prior conviction. 24 (25) If 2 or more convictions described in subsection (23) 25 are convictions for violations arising out of the same transac- 26 tion, only 1 conviction shall be used to determine whether the 27 person has a prior conviction. 02932'99 15 1 (26) IN DETERMINING WHETHER A VIOLATION OCCURS WITHIN 10 2 YEARS OF 2 OR MORE PRIOR CONVICTIONS FOR PURPOSES OF THIS SEC- 3 TION, THE COURT SHALL EXCLUDE ANY PERIOD OF TIME THE PERSON 4 CHARGED WITH THE VIOLATION IS INCARCERATED IN CALCULATING THE 5 10-YEAR PERIOD. 6 Sec. 625m. (1) A person, whether licensed or not, who has 7 an alcohol content of 0.04 grams or more but not more than 0.07 8 grams per 100 milliliters of blood, per 210 liters of breath, or 9 per 67 milliliters of urine shall not operate a commercial motor 10 vehicle within this state. 11 (2) A peace officer may arrest a person without a warrant 12 under either of the following circumstances: 13 (a) The peace officer has reasonable cause to believe that 14 the person was, at the time of an accident, the driver of a com- 15 mercial motor vehicle involved in the accident and was operating 16 the vehicle in violation of this section or a local ordinance 17 substantially corresponding to this section. 18 (b) The person is found in the driver's seat of a commercial 19 motor vehicle parked or stopped on a highway or street within 20 this state if any part of the vehicle intrudes into the roadway 21 and the peace officer has reasonable cause to believe the person 22 was operating the vehicle in violation of this section or a local 23 ordinance substantially corresponding to this section. 24 (3) Except as otherwise provided in subsections (4) and (5), 25 a person who is convicted of a violation of this section or a 26 local ordinance substantially corresponding to this section is 27 guilty of a misdemeanor punishable by imprisonment for not more 02932'99 16 1 than 93 days or a fine of not more than $300.00, or both, 2 together with costs of the prosecution. 3 (4) A person who violates this section or a local ordinance 4 substantially corresponding to this section within 7 years of 1 5 prior conviction may be sentenced to imprisonment for not more 6 than 1 year or a fine of not more than $1,000.00, or both. 7 (5) A person who violates this section or a local ordinance 8 substantially corresponding to this section within 10 years of 2 9 or more prior convictions is guilty of a felony and shall be sen- 10 tenced to pay a fine of not less than $500.00 or more than 11 $5,000.00 and to either of the following: 12 (a) Imprisonment under the jurisdiction of the department of 13 corrections for not less than 1 year or more than 5 years. 14 (b) Probation with imprisonment in the county jail for not 15 less than 30 days or more than 1 year and community service for 16 not less than 60 days or more than 180 days. Not less than 48 17 hours of the imprisonment imposed under this subdivision shall be 18 served consecutively. 19 (6) IN DETERMINING WHETHER A VIOLATION OCCURS WITHIN 10 20 YEARS OF 2 OR MORE PRIOR CONVICTIONS FOR PURPOSES OF SUBSECTION 21 (5), THE COURT SHALL EXCLUDE ANY PERIOD OF TIME THE PERSON 22 CHARGED WITH THE VIOLATION IS INCARCERATED IN CALCULATING THE 23 10-YEAR PERIOD. 24 (7)(6)A term of imprisonment imposed under subsection 25 (4) or (5) shall not be suspended. 26 (8)(7)Subject to subsection(9)(10), as used in this 27 section, "prior conviction" means a conviction for any of the 02932'99 17 1 following, whether under a law of this state, a local ordinance 2 substantially corresponding to a law of this state, or a law of 3 another state substantially corresponding to a law of this 4 state: 5 (a) Except as provided in subsection(8)(9), a violation 6 or attempted violation of this section, section 625(1), (3), (4), 7 (5), (6), or (7), former section 625(1) or (2), or former section 8 625b. 9 (b) Negligent homicide, manslaughter, or murder resulting 10 from the operation of a vehicle or an attempt to commit any of 11 those crimes. 12 (9)(8)Only 1 violation or attempted violation of 13 section 625(6), a local ordinance substantially corresponding to 14 section 625(6), or a law of another state substantially corre- 15 sponding to section 625(6) may be used as a prior conviction. 16 (10)(9)If 2 or more convictions described in subsection 17(7)(8) are convictions for violations arising out of the same 18 transaction, only 1 conviction shall be used to determine whether 19 the person has a prior conviction. 02932'99 Final page. 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