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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

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
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
license suspension
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

restricted licenses
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
license revocation
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
alcohol and drug related driving offenses
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)
alcohol and drug related driving offenses continued
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
license sanctions 1 st offense
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
license sanctions 1 st offense continued
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
license sanctions 1 st offense continued11
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
license sanctions 1 st offense continued12
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
license sanctions 1 st offense continued13
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
2008 pa 461 2008 pa 462
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

new owi offense
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.
license sanctions high bac 1 st offense
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
habitual offender revocation denial
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
habitual offender revocation denial continued
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)
1999 mr 9 r 257 313 rule 13
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
1999 mr 9 r 257 313 rule 13 continued
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
rule 13 abstinence requirement
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
habitual offender revocation denial hearing officer decision
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
mcl 257 322 9 current
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
mcl 257 322 9 effective 10 31 2010
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
mcl 257 625k current
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
current rule 13a habitual offenders major violations consequences
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
current rule 13a minor violations consequences
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)
amended mcl 257 625k effective 10 31 2010
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
proposed rule 1a habitual offense major violations consequences
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
proposed rule 1a minor violations consequences
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)
high bac effective 10 31 2010
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
sos mailing
SOS MAILING
  • High BAC Conviction – Mailing
    • Order of Action
    • HBAC Instruction Sheet
    • Rotating List of BAIID providers
order authorizing removal required
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
high bac violation of restrictions
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
sb 795 effective january 1 2011
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

proposed revision rule 13a
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

mcl 257 625 l
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

high bac
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
high bac additional considerations
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
high bac chart
HIGH BAC CHART
  • SOS Process for High BAC
2008 pa 463 effective 10 31 2010
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
2008 pa 463 effective 10 31 2010 continued
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
contact information
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