DRUNK DRIVING: 0

House Bill 4247 would amend the Michigan Vehicle Code to establish the blood alcohol level for operating a vehicle while intoxicated, the per se level, at 0.08 and increase some of the penalties for that BAC level. The bill would also establish a high-BAC offense for a BAC of .15 and over or for the use in any amount of cocaine or Schedule 1 drugs. House Bill 4248 would amend the Code of Criminal Procedure to incorporate the corresponding changes into the sentencing guidelines for drunk driving and to revise two offense variables.

House Bill 4247. Currently, Section 625(1) of the Michigan Vehicle Code makes it illegal to operate a vehicle with a BAC of .10 or more. It is also illegal to drive under the influence of alcohol, a controlled substance, or both. Section 625(3) makes it illegal to operate a vehicle if, due to the consumption of alcohol, a controlled substance, or both, the person's ability to operate the vehicle is visibly impaired. If a person is charged under Section 625(1), the code allows a guilty verdict to be rendered under the visibly impaired provision.

The bill would amend Section 625(1) to prohibit "operating while intoxicated". "Operating while intoxicated" would apply if the person were under the influence of alcohol, a controlled substance, or both, or the person had a BAC of .08 or more but less than .15. Section 625(3), which prohibits driving while visibly impaired, would not be amended by the bill. (Therefore, a person charged with driving with a BAC of .08 or more but less than .15 could be given a guilty verdict of operating a vehicle while visibly impaired.)

High BAC. The bill would also add Section 625(8) to prohibit a person from operating a vehicle with a BAC of .15 or more or any amount of a Schedule 1 drug or cocaine in his or her body. (Schedule 1 drugs are considered to have no medical benefit and include narcotics such as heroin, hallucinogens such as LSD and peyote, marijuana, gamma-hydroxybutyrate (GHB), and ecstasy.)

Legal presumptions. Currently, the code states that a person 21 years or older operating a vehicle with a BAC of .07 or less is presumed to have no impairment from alcohol. The code also specifies that a person 21 years of age or older driving with a BAC of over .07 but less than .10 is presumed to be operating while impaired and driving with a BAC of 1.0 or over is presumed to be operating under the influence. These presumptions would be deleted.

Penalties. Generally speaking, the bill would increase the amount of a fine that could be imposed for some drunk driving offenses and assign community service for some offenses according to hours instead of days. The bill would also create a penalty structure for the new high-BAC offense.

The code also prescribes penalties for drunk driving offenses committed while a person less than 16 years of age is in the vehicle. The minimum fine that could be imposed for a violation would be increased from $200 to $500 for a first offense and increased from $500 to $1,000 for a second offense occurring within seven years or a third or subsequent offense within ten years. The maximum fines would remain the same at $1,000 for a first offense and $5,000 for repeat offenses.

In addition, the bill would clarify in several sections of the code that "prior conviction" would include a violation of Section 625, except for 625(2); any prior enactment of Section 625 under specified circumstances, Section 625m; former section 625b; or a local ordinance or law of another state substantially corresponding to a conviction described in the above sections.

Significant changes to the penalties are given in more detail below.

BAC of .08. The penalties that used to apply to offenders with a BAC of .10 or over would now apply to a person with a BAC of .08 or more but less than .15, with the following changes:

· Community service would be changed from no more than 45 days to no more than 360 hours. (Forty-five days of community service equals 360 hours if based on an eight-hour day.)

· The fine range for a first offense would increase from $100-$500 to $500-$1,000.

· The minimum fine for a second offense within seven years would increase from $200 to $500; the maximum fine would remain at $1,000.

· The minimum fine for a third or subsequent offense within ten years would increase from $500 to $1,000; the maximum fine would remain at $5,000.

· The court could order, as a condition of probation, that any vehicle the offender drove be equipped with an ignition interlock device approved, certified, and installed as required by the code.

Visibly impaired. The penalties applying to operating a vehicle while visibly impaired would be changed as follows:

· Community service assessed at not more than 360 hours (changed from not more than 45 days).

· Maximum fine increased from $300 to $500 for a first offense.

· Minimum fine for a second offense within seven years increased from $200 to $500; the maximum would remain at $1,000.

· Minimum fine for a third or subsequent offense within ten years increased from $500 to $1,000; the maximum would remain at $5,000.

High BAC. The penalties for operating a vehicle with a BAC of .15 or over or any bodily quantity of a Schedule 1 drug or cocaine would be as follows:

· A first offense would be a misdemeanor punishable by not less than 80 hours or more than 480 hours of community service for a BAC of .15 or more and not more than 480 hours of community service for having any bodily quantity of a Schedule 1 drug or cocaine; imprisonment for not more than 93 days; and/or a fine of $1,000.

· A second offense within seven years would be punishable by a fine between $1,000 and $1,500 and one or more of the following: 1) imprisonment for at least five days but not more than one year (not less than 48 hours would have to be served consecutively and the term of imprisonment could not be suspended), or 2) community service for not less than 30 days or more than 90 days. In the judgment of sentence, the court could order the vehicle forfeited under Section 625n.

· A third or subsequent offense within 10 years would be a felony. The person would have to be fined between $1,000 and $5,000 and be 1) imprisoned under the jurisdiction of the Department of Corrections for not less than one year or more than five years or 2) receive probation with imprisonment in the county jail for not less than 30 days or more than one year (not less than 48 hours would have to be served consecutively) along with community service for not less than 60 days or more than 180 days. The term of imprisonment could not be suspended. In the judgment of sentence, the court could order the vehicle forfeited under Section 625n.

· Unless the vehicle was ordered forfeited, the court would have to order, in the judgment of sentence, vehicle immobilization as provided in Section 904d of the code.

· The court would have to order, as a condition of probation, that any vehicle the offender drove be equipped with an ignition interlock device approved, certified, and installed as required by the code. The device would have to be installed for the full period that the person's license was suspended.

· For a violation with no prior conviction within seven years, the Secretary of State would have to suspend the person's license for one year; a restricted license could be issued after 60 days of suspension.

· Similarly to other drunk driving violations, the person would receive six points on his or her license.

Commercial motor vehicles. Currently, a person is prohibited from driving a commercial vehicle if his or her BAC is 0.04 grams or more but less than 0.07 grams; the bill would change this to prohibit driving with a BAC of 0.04 or more but less than 0.08 grams. The fine for a violation would be increased from a maximum of $300 to $500. The bill would delete a provision pertaining to failure to yield or obey protocols regarding emergency vehicles from the list of offenses that constitute a "prior conviction". (An identical provision pertaining to passenger vehicles would not be eliminated.)

Minors. Currently, a person less than 21 years of age is prohibited from operating a vehicle if he or she has any bodily alcohol content, defined as any presence of alcohol resulting from the consumption of alcohol (other than participation in a religious ceremony) or a BAC of not less than .02 or more than .07. The bill would increase the upper limit of the BAC to not more than .08. The community service that could be imposed for this offense would be changed from not more than 45 days to not more than 360 hours.

The minimum fine for a second or subsequent violation for a minor driving with any bodily alcohol content with another person 16 years of age or younger present in the vehicle would be increased from $200 to $500. The maximum fine amount would remain at $1,000. Only one violation or attempted violation could be used as a prior conviction.

Chemical tests and BAC analysis. Under current law, a person who fails to request a hearing within 14 days of refusing to submit to a chemical test is subject to license sanctions by the Secretary of State. The bill would amend these sanctions. If the person was driving a passenger vehicle, a license suspension or denial would be increased from six months to one year; for a second or subsequent refusal within seven years, the bill would require the SOS to revoke the license instead of a one-year suspension. This applies to the person's driver's license, chauffeur's license or permit to drive, and nonresident operating privilege. A person who had been driving without a license or permit could not be issued one for one year (increased from six months) or for two years (increased from one year) for a second or subsequent refusal within seven years.

The license sanctions would also be increased for a person who did not prevail at a hearing. For a first refusal, the person's license or permit would be suspended or denied for one year (increased from six months). For a second or subsequent refusal within seven years, the person's license or permit would be revoked (instead of suspended or denied for one year). (Note: The code allows a person to file a petition in the appropriate circuit court to review the suspension or denial. However, this provision was not amended to specifically include a review of a license revocation.)

Currently, the amount of alcohol or presence of a controlled substance, or both, in a driver's blood or urine or amount of alcohol in the breath at the time alleged as shown by chemical analysis of those substances is admissible into evidence in any civil or criminal proceeding. The bill would add that these levels would be presumed to be the same as at the time the person operated the vehicle.

If arrested for felonious driving, negligent homicide, manslaughter, or murder resulting from the operation of a vehicle, a person in violation of Section 625 would be considered to have given consent to a chemical test of his or her blood, urine, or breath.

A provision relating to chemical testing not limiting the introduction of other admissible evidence bearing upon the question of whether a person had been impaired by, or under the influence of, alcoholic liquor would be amended to apply to a BAC level of .08 or more for adults and a BAC of .02 or more but less than .08 for a person under 21 years of age.

In addition, in a provision pertaining to a person being ordered by a court to submit to a chemical test, the bill would reduce from 0.10 to 0.08 grams the BAC that constitutes "unlawful alcohol content" for an adult driving a noncommercial vehicle.

Other provisions. The bill would also:

· Replace "intoxicating" liquor with "alcoholic" liquor.

· Make it a criminal offense for an owner of a vehicle to allow a person with a BAC of .08 or more to drive the vehicle (decreased from 0.10) or whose ability to operate the vehicle was visibly impaired due to the consumption of drugs or alcohol, or both.

· Delete the definition of "serious impairment of a body function" contained in Section 625(5). Section 58c of the code also defines the term and includes "loss of an organ" in the definition.

· Currently, if monitoring of an ignition interlock device indicated that the device had been circumvented, a manufacturer must communicate that fact to the Secretary of State in order to be included on the list of approved manufacturers published by the department. The bill would require that the court also be alerted, if appropriate.

· The bill would allow persons approved by the court to observe the installation of an ignition interlock device.

· The bill would extend the same immunity from liability to a court, its officers, employees, or agents as the code already extends to the state, the Secretary of State its officers, employees, or agents in regards to claims or actions arising out of any act or omission by a manufacturer installer or servicing agent of an ignition interlock device that resulted in damage to persons or property.

· Require the number of arrests made for violations of the new high-BAC offense to be included in the annual Michigan Drunk Driving Audit prepared by the Department of State Police.

· Include a violation of Section 625(8) - the high-BAC offense - in references to violations of drunk driving provisions.

House Bill 4248. The bill would amend the Code of Criminal Procedure (MCL 777.12f et al.) to make several changes to the corresponding sentencing guidelines for drunk driving and to revise two offense variables. In one change, the bill would replace the references to "operating a vehicle under the influence or while impaired" contained in the sentencing guidelines that apply to violations of Section 625 (drunk driving) of the Michigan Vehicle Code with the term "operating a vehicle while intoxicated or impaired". The bill would also add that operating a vehicle with an unlawful blood alcohol level or presence of a controlled substance would be a Class E felony against the public safety with a maximum term of imprisonment of five years.

Offense variable 3. Currently, under offense variable 3 (physical injury to a victim), 35 points is scored if death results from the commission of a crime involving the operation of a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive while the offender is under the influence or while impaired. The bill would delete the phrase "under the influence or while impaired causing death" and replace it with language specifying that the points would have to be scored if the offender's bodily alcohol content was 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or while he or she was under the influence of or while visibly impaired by the use of alcoholic or intoxicating liquor or a controlled substance or a combination of both. The bill would also increase the points scored from 35 points to 50 points.

Offense variable 18. Offense variable 18 (operator ability affected by alcohol or drugs) requires that 20 points be scored if an offender operated a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive with a BAC of .20 or more and 15 points if the BAC was more than .15 but less than .20. The bill would amend these two provisions to instead specify that 20 points would be scored for a BAC of .15 or more or the person's body contained any amount of a Schedule 1 controlled substance or cocaine.

In addition, ten points must now be scored if the offender operated a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive when his or her BAC was 0.10 grams or more but less than 0.15 grams or while he or she was under the influence of alcohol, a controlled substance, or a combination of both. The bill would reduce the lower range of the BAC to 0.08 grams and increase the points to be scored to 15.

Further, five points must be scored when a person operates a vehicle, vessel, etc. and his or her BAC is .07 or more but less than .10 or while he or she was visibly impaired by the use of alcohol, a controlled substance, or a combination of both. The bill would retain the current level of points scored and the reference to operating a vehicle while visibly impaired, but would delete the reference to the BAC level.

Lastly, with regard to persons less than 21 years of age, the bill would increase the upper range of the BAC in the definition of "any alcohol content" from 0.07 grams to 0.08 grams.

BACKGROUND INFORMATION:

Federal requirements. Section 351 of the federal fiscal year 2001-2002 transportation appropriations act requires, in order to avoid sanctions, that a state enact and enforce a 0.08 BAC per se law that includes the following provisions:

· Applies to all persons;

· sets a BAC level of not higher than .08 as the legal limit;

· makes operating a vehicle by an individual at or above the legal limit a per se offense;

· provides for primary enforcement;

· applies the .08 BAC to the state's criminal code and, if the state has an administrative license suspension or revocation (ALR) law, to its ALR law; and,

· be deemed to be or be equivalent to the standard driving while intoxicated offense in the state.

Previous legislation. In 1992, 1993, 1995 and 1997, legislation was introduced which would have lowered the BAC level to 0.08. The bills died in the Senate Committee on Judiciary. In 1999 and 2001, legislation was again introduced that would have lowered the per se law from 0.10 BAC to 0.08 BAC and prohibited a person under 21 from operating a vehicle with a BAC between .02 and .05. These bills also died in committee.

Research reports. The Legislative Service Bureau has written two reports available to the public. The Blood Alcohol Concentration Debate In Michigan (Research Report Volume 21 No. 8, revised December 2002) gives a history of the state's drunken driving laws, the two-tiered system, the 0.08 BAC movement, and National Highway Traffic Safety Administration (NHTSA) proposals. Also available is Repeat Drunken Driver Laws in Michigan (Research Report Volume 18, No. 4, revised December 2002), which reviews Michigan's drunken driving laws, current penalties, and the impact of the repeat offenders legislation. Copies of both reports can be requested by phone at 517-373-0472 or can be viewed online at www.lsbws1.lsb.state.mi.us.

The House Fiscal Agency also has an analysis entitled House Bills 4247 and 4248 - 0.08 Percent BAC and Federal Funding to Michigan Highway Programs that can be found on the House Fiscal Agency website - www.house.mi.gov/hfa/PDFs/

HB4247.pdf.

FISCAL IMPLICATIONS:

The House Fiscal Agency has not yet completed an analysis of all the potential fiscal impacts of the two bills. The agency has, however, completed an analysis of federal sanctions that could be imposed if the state has not enacted and implemented a 0.08 per se law by September 30, 2003. In that case, the state stands to lose approximately $9.2 million in fiscal year 2003-2004 federal-aid highway funds. The amount withheld would increase each following year until reaching approximately $37.6 million for fiscal year 2006-2007 and following. Though a reimbursement could be applied for until FY 2007-2008, after that time, the funds would begin to lapse and would no longer be available for apportionment to Michigan. (5-19-03)

ARGUMENTS:

For:

Evidence continues to mount that adoption of a 0.08 BAC as the legal limit for drunken driving saves lives. According to the National Highway Traffic Safety Administration (NHTSA), two out of three recent studies conducted by the agency clearly demonstrated positive effects of lowering the illegal blood alcohol concentration level from 0.10 to 0.08. In the most comprehensive study, which analyzed data from all 50 states over a period of 16 years, it was "estimated that .08 BAC laws had an 8% effect in reducing fatal crashes involving drivers at both high BACs and lower BACs and resulted in 275 fewer fatalities in the 16 states where they were in effect in 1997." It has been estimated that between 500 and 600 additional lives would be saved if all 50 states adopted 0.08 BAC laws. The second study, which studied the effects of 0.08 laws and administrative license revocation (ALR) laws in eleven states, found that .08 laws, whether alone or in conjunction with an ALR law, reduced alcohol-related fatalities in seven of the states. The third study, which was limited to the state of North Carolina, concluded that there "was little clear effect of the lower BAC limit." (The state was already showing a trend toward declining alcohol-related traffic accidents before the study was conducted.)

For:

The bills would increase penalties for drunk driving. When the penalties were increased for repeat offenders, the crash rate involving drunk drivers decreased. Since ignition interlocks would have to be installed on cars for drivers convicted of a high-BAC offense (and may be ordered for a vehicle under a conviction of operating while intoxicated), the number of fatalities and serious injuries in crashes involving alcohol should continue to decrease. The increase in fines and increase in jail time for BAC levels over .15 should also have a deterrent effect and thus reduce the number of repeat offenders.

For:

There is increased documentation of the dangerous effects that use of illegal drugs have on a driver's ability to safely operate his or her vehicle. Under House Bill 4247, the use of any amount of cocaine or Schedule 1 drugs, which includes opiates, hallucinogens, date rape drugs, and marijuana, would incur the same harsh penalties as for people with high alcohol levels. It is difficult to project the number of impaired drivers this provision will remove from the roads, but it will aide law enforcers to remove drug users from behind the wheel, which will surely increase overall safety for other drivers and pedestrians. Plus, since judges can order participation in substance abuse programs as conditions of probations, perhaps more people can receive help earlier in their addictions. The bill may, therefore, even impact overall crime rates, as the majority of crimes involve offenders who are under the effects of drugs and/or alcohol.

For:

Regardless of the merits of lowering the drunk driving per se law to a 0.08 BAC, the simple fact is that if Michigan does not adopt such a law and have it in effect by October 1 of this year, the state will lose upwards of $9 million in federal highway construction funds for the next fiscal year. Each subsequent year that such a law is not in effect will result in even greater funding losses. Given the ongoing need for road repair and the existing budget shortage which makes funding for the worthiest of projects hard to come by, the loss of such a significant amount of revenue would not make good fiscal sense.

Response:

This is little more than government-sanctioned blackmail. The states, as granted in the U. S. Constitution, should be able to retain the right to decide which laws work best for their citizens. Though Michigan's per se level for drunk driving is 0.10 BAC, drivers with a BAC of over 0.07 face license sanctions, imprisonment, fines, and other penalties. Coupled with tough repeat offender laws enacted in the late 1990s, drunk driving related accidents have decreased over pre-1990 levels. Absent the federal government's strong-arm tactics, there simply is no need at this time to revise the state's drunk driving laws.

For:

The following arguments in support of 0.08 BAC laws were found on the Mothers Against Drunk Driving (MADD) website:

· The amount of alcohol that a 170-pound man or 137-pound woman would have to consume within an hour in order to exceed a BAC of 0.08 would be more than what is commonly accepted as social drinking. Therefore, a lower BAC law should not "capture" or overly penalize social drinkers, but should instead penalize problem drinkers.

· The fatal crash risk significantly increases at a 0.08 BAC level; the risk of a driver with a 0.08 BAC being killed is eleven times higher than a driver without alcohol in his or her system. The risk is 29 times higher with a 0.10 BAC.

· Virtually everyone shows signs of impairment at 0.08, regardless of how many drinks it took to reach that limit.

· The BAC level in Canada, Great Britain, Austria, and Switzerland is 0.08.

Against:

Some are concerned that the bill represents an effort to eventually lower the BAC legal limit even lower, say to .05 as some European countries have done, or even to adopt a zero tolerance law for all drivers. Further, some concern has been expressed as to law enforcement officers citing people with low BAC levels (.02-.07) under the visibly impaired provision. Since very harsh penalties kick in for a second or subsequent offense, this could unduly penalize social drinkers who do not represent the drinking population responsible for the majority of fatalities and serious injuries - the ones driving with BAC levels over .15 and .20.

Response:

A person can already be charged with driving while visibly impaired even though his or her BAC level is within the legal limit if erratic driving behavior has been documented by police officers. Most likely, this provision will be used for plea offers for those driving with a BAC level of .08 to .015 and not to "capture" social drinkers who had a glass or two of wine with dinner. As to the bills being the beginning of a slippery slope to a zero tolerance law, that is unlikely. So far, research supports that the majority and the worst alcohol related accidents involve BAC levels upwards of .15. Though people do need to be made aware that impairment is documented for the general population at 0.08, research just does not support the need to further lower the per se level. The bills appropriately reserve the harshest penalties for drug use and alcohol use that seriously impairs a driver's ability to safely operate a motor vehicle.

Against:

Some experts in data collection and analysis believe that there are flaws in the data and analysis used by the NHTSA, MADD, and other groups. For instance, some people listed as drunk had BACs of zero in the NHTSA's data, according to Responsibility in DUI L Laws, Inc. (R.I.D.L.). Also, some data suggests that breathalyzers register a higher BAC for women than for men, meaning that they may show a gender bias. Until such time the data is scrutinized for accuracy, the state's drunk driving laws should remain unchanged.

POSITIONS:

The Department of State Police supports the bills. (6-4-03)

The Office of Secretary of State supports the bills. (6-6-03)

The Prosecuting Attorneys Association of Michigan (PAAM) supports the bills. (6-4-03)

The Michigan Interfaith Council on Alcohol Problems (MICAP) supports the bills. (6-4-03)

The Michigan Restaurant Association supports the bills. (6-9-03)

The Mothers Against Drunk Driving (MADD) Michigan State Organization supports the bills. (6-9-03)

National Interlock supports the bills. (6-9-03)

A representative from the Michigan Sheriffs Association indicated support for the bills. (5-14-03)

The Michigan District Judges Association is neutral on the bill. (6-4-03)

The Michigan Beer and Wine Wholesalers Association is neutral on the bills. (6-9-03)

The Michigan Licensed Beverage Association supports the concept of the high-BAC offense, but does not support the bill in its entirety because of the forced compliance by the federal government and because of the new treatment for impaired offenses. (6-9-03)

A representative from Responsibility in DUI Laws (R.I.D.L.) testified in opposition to the bills. (6-4-03)

Analyst: S. Stutzky

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This analysis was prepared by nonpartisan House staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.