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Habitual/High BAC/BAIID and Proposed Driver License General Rules

Habitual/High BAC/BAIID and Proposed Driver License General Rules. Colleen Tulloch-Brown Administrative Law Examiner Bureau of Regulatory Services Michigan Department of State. MVC states: SOS “Shall” Impose Licensing Action. Courts no longer impose license sanctions Exceptions:

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Habitual/High BAC/BAIID and Proposed Driver License General Rules

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  1. Habitual/High BAC/BAIID and Proposed Driver License General Rules Colleen Tulloch-Brown Administrative Law Examiner Bureau of Regulatory Services Michigan Department of State

  2. MVC states: SOS “Shall” Impose Licensing Action • Courts no longer impose license sanctions • Exceptions: • - Drug crime, no proof of insurance, watercraft, snowmobile, ORV and child support • MCL 257.732 requires the Court to forward the abstract within 5 days after conviction • MCL 257.320a requires SOS to post to MDR within 5 days after receipt of abstract

  3. TYPES OF LICENSING ACTIONS

  4. License Suspension • A suspension is a temporary loss of the license • Carries “from” and “through” date • After “through” date, reinstatement fee is required for relicensure -Provided no additional violations have occurred

  5. Restricted Licenses A restricted license allows limited driving privileges. • Generic restrictions (MCL 257.319(17)) • Work • School • Treatment • Community service • Probation • Serious medical • Must carry proof of destination and hours

  6. License Revocation • The most serious action is a revocation • MCL 257.52 defines revocation as termination of the driver license and privilege to operate a motor vehicle • Eligible to reapply to SOS for restoration: • - After 1 year following a first revocation • - After 5 years for a subsequent revocation w/in 7 years • No guarantee license will be returned

  7. Alcohol and Drug-related Driving Offenses • Operating While Intoxicated (OWI) • Operating Under the Influence of Alcoholic Liquor, a Controlled Substance, or a combination of both • Operating with a BAC > 0.08% • Operating While Visibly Impaired (OWVI) • Includes Alcohol, Controlled Substances, or both • Operating With Presence of Drugs (OWPD)

  8. Alcohol and Drug-related Driving Offenses (continued) • OWI/OWVI/OWPD Causing Death/Serious Injury • Zero Tolerance • Less than 21 years of age with BAC of .02 or more but less than .08 • Child Endangerment • OWI, OWVI, OWPD or OWI/OWVI/OWPD Causing Death/Serious Injury with a passenger <16 years of age in vehicle

  9. License Sanctions -1st Offense Operated While Intoxicated (current) & OWPD MCL 257.625(1) & (8) Licensing: • * 30-day hard suspension/150-day restricted license • * 6 points • * Court-ordered ignition interlock (BAIID) permitted as part of probation order • -Does not appear on MDR • Driver Responsibility Fee: • * $1,000 for 2 consecutive years

  10. License Sanctions -1st Offense (continued) Operating While Visibly Impaired MCL 257.625(3) • Licensing: • * 90-day restricted license • * 180-day restricted license if controlled substances or a combination of alcohol and controlled substances • * 4 points • Driver Responsibility Fee: • * $500 for 2 consecutive years

  11. License Sanctions -1st Offense (continued) OWI/OWVI/OWPD Causing Death/Serious Injury • MCL 257.625(4) & (5) • Licensing: • * revocation/denial • - (1-year or 5-year minimum) • * 6 points • Driver Responsibility Fee: • *$1,000 for 2 consecutive years

  12. License Sanctions -1st Offense (continued) Zero Tolerance MCL 257.625(6) • Licensing: • * 30-day restricted license • * 4 points • Driver Responsibility Fee: • * $500 for 2 consecutive years

  13. License Sanctions -1st Offense (continued) Child Endangerment MCL 257.625(7) • Licensing: • * 90-day hard suspension/90-day restricted license • * 6 points • Driver Responsibility Fee: • * $500 for 2 consecutive years

  14. 2008 PA 461 & 2008 PA 462 • “Ignition Interlock/High BAC” legislation (effective, October 31, 2010) amends various sections of MVC: • New OWI Offense • New License Sanctions • New Ignition Interlock (“BAIID”) Requirements

  15. NEW OWI OFFENSE • HIGH BAC • MCL 257.625(1)(c) will prohibit operation of a vehicle if: • The person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

  16. License Sanctions – HIGH BAC 1st Offense Operating with a BAC > 0.17% (effective 10/31/2010) MCL 257.625(1)(c) Licensing: * 1 year suspension; eligible for restricted license after 45 days with proof of ignition interlock (BAIID) installation * 6 points • Driver Responsibility Fee: • *$1,000 for 2 consecutive years

  17. Habitual Offender – Revocation/Denial Habitual Offender • Any combination of 2 alcohol or substance related driving convictions, murder, negligent homicide, manslaughter within 7 years • Minimum 1 or 5 year revocation • Any combination of 3 convictions within 10 years

  18. Habitual Offender - Revocation/Denial (continued) Section 303 • MCL 257.303(4) - The SOS “shall not” issue a license to a habitual offender until all of the following occur: • Expiration of 1 or 5 years • Rebuts presumption he or she is a habitual violator by clear and convincing evidence • Meets requirements of SOS (Promulgated Rules)

  19. 1999 MR 9 R 257.313 (Rule 13) Petitioner must prove all of the following by clear and convincing evidence: • That any alcohol/drug problem is under control and likely to remain under control • That the risk of repeating past abusive behavior is a low or minimal risk • That the risk of driving impaired or under the influence again is a low or minimal risk

  20. 1999 MR 9 R 257.313 (Rule 13) (continued) • That they have the ability and motivation to drive safely and within the law • That they meet the minimum period of required abstinence • Other relevant showings

  21. Rule 13 Abstinence Requirement 12 month (or more) period of abstinence required if 1 or more of the following is established: • A BAC of 2 or more times the statutory presumption (0.16 or higher); or • 3 or more substance abuse convictions; or • Any history of use after a period of control; or • Diagnosis of alcohol and/or drug dependency; or • Prior record of revocation/denial

  22. Habitual Offender Revocation/Denial - Hearing Officer Decision • If the Hearing Officer is satisfied the petitioner has met all the requirements by clear and convincing evidence driving privileges are granted. • Full privileges • Restricted privileges • MCL 257.322(6) requires a BAIID

  23. MCL 257.322(9) – Current • Duration of BAIID-Habitual Offenders: • Initial period - 1 year • Hearing Officer discretion after first year • BAIID ordered by DAAD appears on MDR • No Medical Waivers under statute

  24. MCL 257.322(9) (effective 10/31/2010) • Duration of BAIID-Habitual Offenders: • Initial period – “not less than” 1 year • BAIID ordered by DAAD appears on MDR • Removal Order required – MCL 257.322a • No Medical Waivers under statute

  25. MCL 257.625k - Current BAIID Must: • Prevent vehicle from being started unless alcohol content of less than 0.025% • Render vehicle inoperable if alcohol content of 0.04% or more

  26. Current Rule 13a – Habitual Offenders-Major Violations/Consequences • A rolling retest violation, BAC over 0.04% • Receiving a 625g permit • Conviction for tampering with the device - MCL 257.625l • Reported tampering or attempts without a conviction • 3 minor violations within a monitoring period • BAIID is removed and not installed in another vehicle within 7 days • Consequence = Reinstatement of Rev/Denied

  27. Current Rule 13a – Minor Violations/Consequences • 3 start-up test failures, 2 months or more after the BAIID is installed, occurring within a monitoring period • Petitioner fails to report to the BAIID installer for monitoring within 7 days of service date • Consequence: 3 months extension of BAIID (no appeal to DAAD)

  28. Amended MCL 257.625k (effective 10/31/2010) BAIID Must: • Prevent vehicle from being started unless alcohol content of less than 0.025% • Render vehicle inoperable as soon as no longer being operated if alcohol content of 0.025% or more

  29. Proposed Rule 1a – Habitual Offense - Major Violations/Consequences • A rolling retest violation, BAC over 0.025% • Receiving a 625g permit • Conviction for violation of MCL 257.625l (operating w/o a BAIID) • Reported tampering or attempts without a conviction • 3 minor violations within a monitoring period • BAIID is removed and not installed in another vehicle within 7 days • Operating without a BAIID • Consequence = Reinstatement of Rev/Denied

  30. Proposed Rule 1a– Minor Violations/Consequences • 3 start-up test failures, 2 months or more after the BAIID is installed, occurring within a monitoring period • Petitioner fails to report to the BAIID installer for monitoring within 7 days of service date • Consequence: 3 months extension of BAIID (no appeal to DAAD)

  31. High BAC (effective 10/31/2010) • New MCL 257.319(8)(g) • Requires 1 year suspension • SOS may issue restricted license after 45 days • New MCL 257.319(8)(h) • May only operate vehicle equipped with BAIID • Proof of BAIID installation must be provided • Generic restrictions (MCL 257.319(17)) (and BAIID) for remainder of 1 year suspension

  32. SOS MAILING • High BAC Conviction – Mailing • Order of Action • HBAC Instruction Sheet • Rotating List of BAIID providers

  33. ORDER AUTHORIZING REMOVAL REQUIRED • MCL 257.322a (effective 10/31/2010) • Prohibits a person with an SOS issued restricted license from removing the BAIID or causing it to be removed unless the SOS issued an order authorizing its removal • 90 day misdemeanor • Applies to habitual & High BAC

  34. High BAC Violation of Restrictions • New MCL 257.319(8)(h) • Removal - Requires verification to the SOS of “no instances” of > 0.025% • New MCL 257.319(8)(i) • Violation of conditions or “operates or attempts to operate” with 0.025% • Excludes start-up test failure within first 2 months • SOS shall impose an additional like period of suspension and restriction

  35. SB 795 (effective January 1, 2011) • Language added to SB 795 (Sobriety Court) to clarify High BAC issues • MCL 257.319(8)(h) & (i) • Removal not prohibited and no additional suspension if: - Start-up test failure within first 2 months - Start-up test failure followed by a breath sample < 0.025% within 15 minutes - Rolling retest > 0.025% followed by breath sample < 0.025% within 5 minutes

  36. Proposed Revision Rule 13a • Servicing required every 60 days • Report from BAIID vendor required when servicing indicates: • Habitual - Major/Minor violation • High BAC - Start-up test > 0.025% that is not followed by a breath sample < 0.025% within 15 minutes - Rolling retest > 0.025% that is not followed by a breath sample < 0.025% within 5 minutes

  37. MCL 257.625l • 6 month misdemeanor to: • “Request or solicit” another to provide a sample • Provide a sample for another • Tamper/Circumvent • Operate without a BAIID when one is required (effective 10/31/2010) -Law enforcement must impound vehicle - If operator individually or jointly owns: * Confiscate plate * Issue temporary plate * Notify SOS through LEIN

  38. High BAC • At the end date of license restrictions (plus any additional periods of suspension/restriction) the driver: • Asks the BAIID provider to submit a BAIID report to SOS • Obtains an Order authorizing removal of the BAIID • Pays reinstatement fee • For individual who chose not to obtain restricted license: • Pays reinstatement fee

  39. High BAC Additional Considerations • If additional period of suspension/restriction imposed • Entitled to request license appeal hearing within 14 days • If letter denying removal of BAIID is issued • Entitled to request license appeal hearing within 14 days

  40. HIGH BAC CHART • SOS Process for High BAC

  41. 2008 PA 463 (effective 10/31/2010) • Eliminates Negligent Homicide and Felonious Driving • Creates two new misdemeanor offenses • Moving Violation Causing Death/Moving Violation Causing Serious Injury - Licensing: • * 1 year suspension • * 6 points • - Driver Responsibility Fee: • * $1,000 for 2 consecutive years

  42. 2008 PA 463 (effective 10/31/2010) (continued) • Creates two new felony reckless driving offenses • Reckless Driving Causing Serious Impairment of a Body Function/Reckless Driving Causing Death - Licensing: • * revocation/denial • - (1-year or 5-year minimum) • * 6 points • - Driver Responsibility Fee: • *$1,000 for 2 consecutive years

  43. Contact Information • Bureau of Regulatory Services • P. O. Box 30196 • Lansing, MI 48909-7696 • 888-SOS-MICH • (888-767-6424) • www.michigan.gov/sos • Tulloch-BrownC@michigan.gov

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