OPERATING WHILE INTOXICATED H.B. 4219 (H-1), 4220 (H-1), 4308 (H-1) & 4309:
SUMMARY OF HOUSE-PASSED BILL
IN COMMITTEE
House Bill 4219 (Substitute H-1 as passed by the House)
House Bill 4220 (Substitute H-1 as passed by the House)
House Bill 4308 (Substitute H-1 as passed by the House)
House Bill 4309 (as passed by the House)
Sponsor: Representative Tenisha Yancey (H.B. 4219)
Representative Joseph N. Bellino, Jr. (H.B. 4220)
Representative Abdullah Hammoud (H.B. 4308)
Representative Graham Filler (H.B. 4309)
Senate Committee: Judiciary and Public Safety
CONTENT
House Bill 4220 (H-1) would amend Section 1c of Public Act (PA) 213 of 1965, which provides for setting aside convictions in certain criminal cases, to allow the setting aside of a conviction for operating while intoxicated (OWI) under certain circumstances.
House Bill 4219 (H-1) would amend Section 1 of PA 213 to prescribe the definition of "first violation operating while intoxicated offense" and to modify the definition of "operating while intoxicated".
House Bill 4308 (H-1) would amend the Michigan Vehicle Code to delete the sunset of October 1, 2021, on which the bodily alcohol content (BAC) that constitutes OWI will increase from 0.08 to 0.10.
House Bill 4309 would amend the sentencing guidelines within the Code of Criminal Procedure to reflect the elimination of the sunset provision raising the BAC that constitutes OWI.
House Bills 4219 (H-1) and 4220 (H-1) are tie-barred to each other. House Bill 4308 (H-1) and 4309 are tie-barred to each other. House Bill 4308 (H-1) also is tie-barred to House Bill 4220. House Bills 4219 (H-1) and 4220 (H-1) would take effect on April 11, 2021. House Bills 4308 (H-1) and 4309 each would take effect 90 days after their enactment.
House Bill 4220 (H-1)
Section 1c of PA 213 specifies that a person may not apply to have set aside, and a judge may not set aside, a conviction for certain traffic offenses, including a conviction for OWI committed by any person.
Under the bill, the prohibition on setting aside a conviction for OWI would not apply to a conviction for a first violation OWI if the person applying to have the conviction set aside had not previously applied to have and had had a first time OWI offense conviction set aside. However, a conviction for a first violation OWI offense that could be set aside upon application would not be eligible for and could not be set aside without application.
In making a determination whether to grant the petition to set aside a first violation OWI offense conviction, the reviewing court could consider whether or not the petitioner had benefited from rehabilitative or educational programs, if any were ordered by the sentencing court, or whether those steps were taken by the petitioner before sentencing for the first violation OWI offense conviction he or she was seeking to set aside. The reviewing court would not be constrained by the record made at sentencing. The reviewing court could deny the petition if it were not convinced that the petitioner either had availed himself or herself of rehabilitative or educational programming or benefited from rehabilitative or educational programming he or she had completed.
House Bill 4219 (H-1)
The bill would define "first violation operating while intoxicated offense" as a violation of any of the following committed by an individual who at the time of the violation has no prior convictions for violating Section 625 of the Michigan Vehicle Code:
-- Sections 625(1), (2), (3), (6), or (8) of the Vehicle Code.
-- A local ordinance substantially corresponding to those sections listed above.
-- A law of an Indian tribe substantially corresponding to those sections listed above.
-- A law of another state substantially corresponding to those sections listed above.
-- A law of the United States substantially corresponding to these sections listed above.
Public Act 213 defines "operating while intoxicated" as a violation of any of the following:
-- Sections 625 or 625m of the Vehicle Code.
-- A local ordinance substantially corresponding to those sections listed above.
-- A law of an Indian tribe substantially corresponding to those sections listed above.
-- A law of another state substantially corresponding to those sections listed above.
-- A law of the United States substantially corresponding to these sections listed above.
Under the bill, the term would mean a violation of any of offenses listed above that is not a first violation operating while intoxicated offense.
House Bill 4308 (H-1)
Operating while Intoxicated
Section 625(1) of the Vehicle Code prohibits a person from operating a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, if he or she is operating while intoxicated. "Operating while intoxicated" means the person meets any of the following:
-- Is under the influence of alcohol, a controlled substance, or other intoxicating substance or a combination of those.
-- Has a BAC of 0.08 or more.
-- Has a BAC of 0.17 or more.
Beginning October 1, 2021, the 0.08 BAC standard described above will increase to 0.10. (The 0.10 standard was in Michigan statute before September 30, 2003, the effective date of Public Act 61 of 2003, which lowered the BAC standard to 0.08 from 0.10.). The bill would delete this provision.
Authorizing Operation of a Vehicle
Section 625(2) of the Code prohibits the owner or person in charge or in control of a vehicle from authorizing or knowingly permitting it to be operated by a person if any of the following apply:
-- The person who is under the influence of alcohol, a controlled substance, or other intoxicating substance, or a combination of those.
-- The person has a BAC of 0.08 or more.
-- The person's ability to operate the vehicle is visibly impaired due to the consumption of alcohol, a controlled substance, or other intoxicating substance, or a combination of those.
Beginning October 1, 2021, the 0.08 BAC standard described above will increase to 0.10 or more. The bill would delete this provision.
Zero-Tolerance Offense
Section 625(6) of the Code prohibits a person under the age of 21 from operating a vehicle if the person has any bodily alcohol content (which is commonly referred to as a "zero-tolerance offense"). "Any bodily alcohol content" means either of the following:
-- A BAC of 0.02 grams or more but less than 0.08 grams.
-- Any presence of alcohol within the person's body resulting from the consumption of alcohol, other than the consumption of alcohol as part of a generally recognized religious service or ceremony.
Beginning October 1, 2021, the BAC standard described above will increase to a BAC of 0.02 or more but less than 0.10. The bill would delete this provision.
Chemical Testing for Alcohol Content
Section 625a of Code specifies that its provisions pertaining to chemical testing of BAC do not limit the introduction of any other admissible evidence bearing upon whether the person meets any of the following:
-- Was impaired by, or under the influence of, alcohol, a controlled substance, or other intoxicating substance, or a combination of those.
-- Had a BAC of 0.08 or more.
-- Had any BAC within his or her body if the person is less than 21 years old.
Beginning October 1, 2021, the BAC standard described above will increase to 0.10. The bill would delete this provision.
Under the Section 625g of Code, if an operator of a vehicle refuses a chemical test or submits to a chemical test that reveals an unlawful alcohol content, the peace officer who requested the person to submit to the test must take certain actions, including confiscating the person's driver license. "Unlawful alcohol content" means any of the following:
-- If the person is under 21, a BAC of 0.02 or more.
-- If the person tested was operating a commercial motor vehicle, a BAC of 0.04 or more.
-- If the person is not under 21 or operating a commercial motor vehicle, a BAC of 0.08 or more.
Beginning October 1, 2021, the 0.08 BAC standard described above will increase to 0.10. The bill would delete this provision.
Operating a Commercial Motor Vehicle
Section 625m of the Code prohibits a person from operating a commercial motor vehicle if he or she has a BAC of 0.04 or more but less than 0.08.
Beginning October 1, 2021, the BAC standard described above will increase to a BAC of 0.04 or more but less than 0.10. The bill would delete this provision.
House Bill 4309
Under the sentencing guidelines, offense variable 3 is physical injury to a victim. The guidelines require 50 points to be scored if death results from the commission of a crime and the offense or attempted offense involves the operation of a vehicle, vessel, off-road vehicle (ORV), snowmobile, aircraft, or locomotive, and one of several factors applies. One of those factors is that the offender had a BAC of 0.08 or more.
Beginning October 1, 2021, the points must be scored if the offender has a BAC of 0.10 or more. The bill would delete this provision.
Offense variable 18 is operator ability affected by alcohol or drugs. The guidelines require 10 points to be scored if the offender operated a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive while he or she had a BAC of 0.08 or more but less than 0.15.
Beginning October 1, 2021, the points must be scored if the offender had a BAC of 0.10 or more but less than 0.15. The bill would delete this provision.
The guidelines also require five points to be scored under offense variable 18 if the offender operated a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive, and he or she was under 21 and had any bodily alcohol content. "Any bodily alcohol content" includes a BAC of 0.02 or more but less than 0.08 or.
Beginning October 1, 2021, the term, instead, includes a BAC of 0.02 or more but less than 0.10. the bill would delete this provision.
780.621c (H.B. 4220)
257.625 et al. (H.B. 4308)
777.33 & 777.84 (H.B. 4309)
BACKGROUND
Section 625(3) of the Vehicle Code prohibits a person from operating a vehicle while the person is visibly impaired due to the consumption of alcohol, a controlled substance, or other intoxicating substance, or a combination of those.
Section 625(8) of the Vehicle Code prohibits a person from operating a vehicle if the person has in his or her body any amount of a Schedule 1 controlled substance under Section 7212 of the Public Health Code or a rule promulgated under Section 7212 or of a controlled substance described in Section 7214(a)(iv) of the Public Health Code.
FISCAL IMPACT
House Bills 4219 (H-1) & 4220 (H-1)
The bills likely would not have a noticeable fiscal impact on local court systems. While the bill likely would result in additional expungement filings across the State, it is assumed these filings would not flood the local court systems with additional administrative costs and hearing requests. There are several fees associated with the expungement process ($50 to the Michigan State Police (MSP) for a background check, $10 to $15 to MSP for fingerprints, $10 to the Internet Criminal History Access Tool), but no filing fees that go to a Judiciary restricted fund.
The bills likely would not have a fiscal impact on State government.
House Bill 4308 (H-1)
The bill would have no fiscal impact on State or local units of government; however, allowing the BAC sunset to take effect could reduce costs for the Michigan Department of Corrections (MDOC) and reduce revenue for local libraries. Currently, under the State's per se statute, a person with a BAC of 0.08 grams is considered to be operating while intoxicated; however, the statute requires the per se level to revert back to a BAC of 0.10 grams on October 1, 2021.
Enactment of the bill would have no fiscal impact on the State or local units as the current BAC thresholds would remain the same; thus, costs associated with them would remain unchanged. However, absent the bills, the likely result would be fewer convictions and a reduction in jail times and sentences. As a result, the MDOC could save an estimated $42,400 per prisoner per year, the average annual cost for incarceration in an MDOC facility. Additionally, the average costs for parole and felony probation supervision services averaging $4,300 annually per supervised offender, also could be saved. Finally, fewer convictions would result in fewer fines, which would lead to lower revenue for local libraries (which are the beneficiaries of civil fines).
The bill also would preserve existing Federal aid apportionments as it would lift the sunset on the 0.08 BAC standard. Under Federal law (23 USC 163), states that do not comply with at least a 0.08 BAC standard can lose Federal aid through the National Highway Performance Program and the Surface Transportation Program. The Department of Transportation estimates these loses could be up to $53.0 million in Federal aid per year. Currently, Michigan receives roughly $1.4 billion in Federal aid per year.
House Bill 4309
The bill would have no fiscal impact on local government and an indeterminate fiscal impact on the State, in light of the Michigan Supreme Court's July 2015 opinion in People v. Lockridge, in which the Court ruled that the sentencing guidelines are advisory for all cases. This means that any changes to the guidelines under the bill would not be compulsory for the sentencing judge. As penalties for felony convictions vary, the fiscal impact of any given felony conviction depends on judicial decisions.
Michael Siracuse
This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent.