HB-4616, As Passed House, May 4, 2005

SUBSTITUTE FOR

HOUSE BILL NO. 4616

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 82101, 82127, 82136, 82139, 82140, 82143,

82144, and 82146 (MCL 324.82101, 324.82127, 324.82136, 324.82139,

324.82140, 324.82143, 324.82144, and 324.82146), section 82101 as

amended by 2004 PA 587, section 82127 as amended by 2001 PA 12,

sections 82136 and 82146 as added by 1995 PA 58, and sections

82139, 82140, 82143, and 82144 as amended by 1996 PA 183.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 82101. As used in this part:

     (a) "Alcoholic liquor" means that terms as defined in section

1d of the Michigan vehicle code, 1949 PA 300, MCL 257.1d.

(b)  (a) "Conviction" means a final conviction, the payment

of a fine, a plea of guilty or nolo contendere if accepted by the

court, or a finding of guilt or probate court disposition on a

violation of this part, regardless of whether the penalty is

rebated or suspended.

(c)  (b) "Dealer" means any person engaged in the sale,

lease, or rental of snowmobiles as a regular business.

(d)  (c) "Former section 15a" means section 15a of former

1968 PA 74, as constituted  prior to  before May 1, 1994.

(e)  (d) "Highly restricted personal information" means an

individual's photograph or image, social security number, digitized

signature, and medical and disability information.

(f)  (e) "Highway or street" means the entire width between

the boundary lines of every way publicly maintained if any part

thereof is open to the use of the public for purposes of vehicular

travel.

(g)  (f) "In-kind contributions" means services and goods as

approved by the department that are provided by a grant recipient

toward completion of a department-approved local snowmobile program

under section 82107.

(h)  (g) "Law of another state" means a law or ordinance

enacted by another state or by a local unit of government in

another state.

     (h) "Long-term incapacitating injury" means an injury that

causes a person to be in a comatose, quadriplegic, hemiplegic, or

paraplegic state, which state is likely to continue for 1 year or

more.

     (i) "Operate" means to ride in or on and be in actual physical

control of the operation of a snowmobile.

     (j) "Operator" means any person who operates a snowmobile.

     (k) "Owner" means any of the following:

     (i) A person who holds the legal title to a snowmobile.

     (ii) A vendee or lessee of a snowmobile that is the subject of

an agreement for conditional sale or lease with the right of

purchase upon performance of the conditions stated in the agreement

and with an immediate right of possession vested in the conditional

vendee or lessee.

     (iii) A person renting a snowmobile or having the exclusive use

of a snowmobile for more than 30 days.

     (l) "Peace officer" means any of the following:

     (i) A sheriff.

     (ii) A sheriff's deputy.

     (iii) A deputy who is authorized by a sheriff to enforce this

part and who has satisfactorily completed at least 40 hours of law

enforcement training, including training specific to this part.

     (iv) A village or township marshal.

     (v) An officer of the police department of any municipality.

     (vi) An officer of the Michigan state police.

     (vii) The director and conservation officers employed by the

department.

     (viii) A law enforcement officer who is certified  pursuant to

under the commission on law enforcement standards act, 1965 PA 203,

MCL 28.601 to 28.616, as long as that officer is policing within

his or her jurisdiction.

     (m) "Personal information" means information that identifies

an individual, including an individual's driver identification

number, name, address not including zip code, and telephone number,

but does not include information on snowmobile operation or

equipment-related violations or civil infractions, operator or

snowmobile registration status, accidents, or other behaviorally-

related information.

     (n) "Probate court or family division disposition" means the

entry of a probate court order of disposition or family division

order of disposition for a child found to be within the provisions

of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL

712A.1 to 712A.32.

     (o) "Prosecuting attorney", except as the context requires

otherwise, means the attorney general, the prosecuting attorney of

a county, or the attorney representing a local unit of government.

     (p) "Recreational snowmobile trail improvement subaccount"

means the recreational snowmobile trail improvement subaccount of

the snowmobile account created in section 82110. This subdivision

does not apply unless House Resolution Z of the 92nd Legislature

becomes part of the state constitution of 1963.

     (q) "Right-of-way" means that portion of a highway or street

less the roadway and any shoulder.

     (r) "Roadway" means that portion of a highway or street

improved, designated, or ordinarily used for vehicular travel. If a

highway or street includes 2 or more separate roadways, the term

roadway refers to any such roadway separately, but not to all such

roadways collectively.

     (s) "Shoulder" means that portion of a highway or street on

either side of the roadway that is normally snowplowed for the

safety and convenience of vehicular traffic.

     (t) "Snowmobile" means any motor-driven vehicle designed for

travel primarily on snow or ice of a type that utilizes sled-type

runners or skis, an endless belt tread, or any combination of these

or other similar means of contact with the surface upon which it is

operated, but is not a vehicle that must be registered under the

Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923.

     (u) "Snowmobile account" means the snowmobile account of the

Michigan conservation and recreation legacy fund provided for in

section 2025. This subdivision does not apply unless House

Resolution Z of the 92nd Legislature becomes part of the state

constitution of 1963.

     (v) "Snowmobile registration fee subaccount" means the

snowmobile registration fee subaccount of the snowmobile account

created in section 82111. This subdivision does not apply unless

House Resolution Z of the 92nd Legislature becomes part of the

state constitution of 1963.

     (w) "Zone 1" means all of the Upper Peninsula.

     (x) "Zone 2" means all of that part of the Lower Peninsula

north of a line beginning at and drawn from a point on the

Michigan-Wisconsin boundary line due west of the westerly terminus

of River road in Muskegon county; thence due east to the westerly

terminus of River road; thence north and east along the center line

of the River road to its intersection with highway M-120; thence

northeasterly and easterly along the center line of highway M-120

to the junction of highway M-20; thence easterly along the center

line of M-20 to its junction with US-10 at the Midland-Bay county

line; thence easterly along the center line of the "business route"

of highway US-10 to the intersection of Garfield road in Bay

county; thence north along the center line of Garfield road to the

intersection of the Pinconning road; thence east along the center

line of Pinconning road to the intersection of the Seven Mile road;

thence north along the center of the Seven Mile road to the Bay-

Arenac county line; thence north along the center line of the

Lincoln School road (county road 25) in Arenac county to the

intersection of highway M-61; thence east along the center line of

highway M-61 to the junction of highway US-23; thence northerly and

easterly along the center line of highway US-23 to the center line

of the Au Gres river; thence southerly along the center line of the

river to its junction with Saginaw Bay of Lake Huron; thence north

78° east to the international boundary line between the United

States and the Dominion of Canada.

     (y) "Zone 3" means all of that part of the Lower Peninsula

south of the line described in subdivision  (x).

     Sec. 82127. (1) A person shall not operate a snowmobile in

this state if  either any of the following  applies apply:

     (a) The person is under the influence of  intoxicating

alcoholic liquor or a controlled substance, or both.

     (b) The person has a blood alcohol content of  0.10 0.08

grams or more per 100 milliliters of blood, per 210 liters of

breath, or per 67 milliliters of urine.

(c) 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, 1978 PA 368, MCL 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, 1978 PA

368, MCL 333.7214.

     (2) The owner of a snowmobile or a person in charge or in

control of a snowmobile shall not authorize or knowingly permit the

snowmobile to be driven or operated by a person  who if any of the

following apply:

     (a) The person is under the influence of  intoxicating

alcoholic liquor or a controlled substance, or both.  , or who

(b) The person has  a blood an alcohol content of  0.10 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 a snowmobile is visibly

impaired due to the consumption of an alcoholic liquor, a

controlled substance, or a combination of an alcoholic liquor and a

controlled substance.

     (3) A person shall not operate a snowmobile when, due to the

consumption of an  intoxicating alcoholic liquor or a controlled

substance, or both, the person's ability to operate the snowmobile

is visibly impaired. If a person is charged with violating

subsection (1), a finding of guilty under this subsection may be

rendered.

     (4) A person who operates a snowmobile  under the influence of

intoxicating liquor or a controlled substance, or both, or with 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,

in violation of subsection (1) or (3) and by the operation of that

snowmobile causes the death of another person is guilty of a felony

punishable by imprisonment for not more than 15 years  ,  or a fine

of not less than $2,500.00 or more than $10,000.00, or both.

     (5) A person who operates a snowmobile  under the influence of

intoxicating liquor or a controlled substance, or both, or with 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,

in violation of subsection (1) or (3) and by the operation of that

snowmobile causes a serious impairment of a body function of

another person is guilty of a felony punishable by imprisonment for

not more than 5 years  ,  or a fine of not less than $1,000.00 or

more than $5,000.00, or both. As used in this subsection, "serious

impairment of a body function"  includes, but is not limited to, 1

or more of the following: means that term as defined in section

58c of the Michigan vehicle code, 1949 PA 300, MCL 257.58c.

      (a) Loss of a limb or use of a limb.

     (b) Loss of a hand, foot, finger, or thumb or use of a hand,

foot, finger, or thumb.

     (c) Loss of an eye or ear or use of an eye or ear.

     (d) Loss or substantial impairment of a bodily function.

     (e) Serious visible disfigurement.

     (f) A comatose state that lasts for more than 3 days.

     (g) Measurable brain damage or mental impairment.

     (h) A skull fracture or other serious bone fracture.

     (i) Subdural hemorrhage or subdural hematoma.

     Sec. 82136. (1) A peace officer, without a warrant, may arrest

a person if the peace officer has reasonable cause to believe that

the person was, at the time of an accident, the operator of a

snowmobile involved in the accident in this state while in

violation of section 82127(1), (3), (4), or (5) or a local

ordinance substantially corresponding to section 82127(1) or (3).

     (2) A peace officer who has reasonable cause to believe that a

person was operating a snowmobile and that, by the consumption of

intoxicating alcoholic liquor, the person may have affected his or

her ability to operate a snowmobile may require the person to

submit to a preliminary chemical breath analysis. The following

apply with respect to a preliminary chemical breath analysis:

     (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

section 82143(1) or in an administrative hearing solely to assist

the court or hearing officer in determining a challenge to the

validity of an arrest. This subdivision does not limit the

introduction of other competent evidence offered to establish the

validity of an arrest.

     (c) A person who submits to a preliminary chemical breath

analysis remains subject to the requirements of sections 82143 to

82146 for the purposes of chemical tests described in those

sections.

     (d) A person who refuses to submit to a preliminary chemical

breath analysis upon a lawful request by a peace officer is guilty

of a misdemeanor.

     Sec. 82139. (1) The provisions of sections 82137 and 82138

relating to chemical testing do not limit the introduction of any

other competent evidence bearing upon the question of whether a

person was impaired by, or under the influence of,  intoxicating

alcoholic liquor or a controlled substance, or both, or whether the

person had a blood alcohol content of  0.10  0.08 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 sections 82137 and 82138

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 2 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.

     Sec. 82140.  (1) Except in a prosecution relating solely to a

violation of section 82127(1)(b), the amount of alcohol in the

driver'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 the defendant had a blood 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 snowmobile 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 a blood 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 snowmobile was impaired within the provisions

of section 82127(3) due to the consumption of intoxicating liquor.

     (c) If at the time the defendant 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, 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 sections 82137 and 82138 is admissible in a criminal

prosecution for a crime described in section 82143(1) 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.

     Sec. 82143. (1) A person who operates a snowmobile 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 section

82127(1), (3), (4), or (5) or a local ordinance substantially

corresponding to section 82127(1) or (3).

     (b) The person is arrested for negligent homicide,

manslaughter, or murder resulting from the operation of a

snowmobile, and the peace officer had reasonable grounds to believe

that the person was operating the snowmobile  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 in violation of section

82127.

     (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) A chemical test described in subsection (1) shall be

administered as provided in sections 82137 and 82138.

     Sec. 82144. (1) If a person refuses the request of a peace

officer to submit to a chemical test offered pursuant to section

82137 or 82138, 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

section 82137 or 82138, or submits to the chemical test and the

test reveals a blood alcohol content of  0.10  0.08 grams or more

per 100 milliliters of blood, per 210 liters of breath, or per 67

milliliters of urine, 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 that the person had committed a crime

described in section 82143(1), and either that the person has

refused to submit to the test upon the request of the peace officer

and has been advised of the consequences of the refusal or that the

test revealed a blood alcohol content of  0.10  0.08 grams or more

per 100 milliliters of blood, per 210 liters of breath, or per 67

milliliters of urine. The form of the report shall be prescribed

and furnished by the secretary of state.

     Sec. 82146. (1) If a person who refuses to submit to a

chemical test  pursuant to  under section 82144 does not request a

hearing within 14 days of the date of notice pursuant to section

82145, the secretary of state shall issue an order that the person

not operate a snowmobile for  6 months  1 year or, for a second or

subsequent refusal within 7 years, for  1 year  2 years.

     (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 section 322 of the Michigan vehicle code,  Act No.

300 of the Public Acts of 1949, being section 257.322 of the

Michigan Compiled Laws  1949 PA 300, MCL 257.322. A person shall

not order a hearing officer to make a particular finding on any

issue enumerated under subdivisions (a) to (d). Not less than 5

days' notice of the hearing shall be mailed to the person

requesting the hearing, to the peace officer who filed the report

under section 82144, 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 1

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 section

82143(1).

     (b) Whether the person was placed under arrest for a crime

described in section 82143(1).

     (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 his or her rights under

section 82137.

     (3) The hearing officer shall make a record of proceedings

held  pursuant to  under subsection (2). 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 1969, being section 24.286 of the Michigan Compiled Laws

1969 PA 306, MCL 24.286. Upon notification of the filing of a

petition for judicial review  pursuant to  under section 82150 and

not less than 10 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 snowmobile for  6 months  1 year or, for a

second or subsequent refusal within 7 years, for  1 year  2 years.

The person may file a petition in the circuit court of the county

in which the arrest was made to review the order as provided in

section 82150. If after the hearing the person who requested the

hearing prevails, the peace officer who filed the report under

section 82144 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 section 82150.

     Enacting section 1. This amendatory act takes effect January

1, 2006.