Bill Text: MI HB5785 | 2015-2016 | 98th Legislature | Introduced

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Bill Title: Liquor; drinking age; obtaining court order before nonconsensual preliminary chemical breath testing of a minor; require. Amends sec. 703 of 1998 PA 58 (MCL 436.1703).

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2016-08-03 - Bill Electronically Reproduced 07/13/2016 [HB5785 Detail]

Download: Michigan-2015-HB5785-Introduced.html

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HOUSE BILL No. 5785

July 13, 2016, Introduced by Rep. Lucido and referred to the Committee on Judiciary.

 

     A bill to amend 1998 PA 58, entitled

 

"Michigan liquor control code of 1998,"

 

by amending section 703 (MCL 436.1703), as amended by 2012 PA 125.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 703. (1) A minor shall not purchase or attempt to

 

purchase alcoholic liquor, consume or attempt to consume alcoholic

 

liquor, possess or attempt to possess alcoholic liquor, or have any

 

bodily alcohol content, except as provided in this section. A minor

 

who violates this subsection is guilty of a misdemeanor punishable

 

by the following fines and sanctions and is not subject to the

 

penalties prescribed in section 909:

 

     (a) For the first violation by a fine of not more than

 

$100.00. A court may order a minor under this subdivision to

 

participate in substance abuse prevention services or substance

 

abuse treatment and rehabilitation use disorder services as defined

in section 6107 6230 of the public health code, 1978 PA 368, MCL

 

333.6107, 333.6230, and designated by the administrator of the

 

office of substance abuse services, and may order that the minor to

 

perform community service and to undergo substance abuse screening

 

and assessment at his or her own expense as described in subsection

 

(5).

 

     (b) For a second violation of this subsection, section 33b(1)

 

of former 1933 (Ex Sess) PA 8, or a local ordinance substantially

 

corresponding to this subsection or section 33b(1) of former 1933

 

(Ex Sess) PA 8, by imprisonment for not more than 30 days but only

 

if the court finds that the minor violated an order of probation,

 

failed to successfully complete any treatment, screening, or

 

community service ordered by the court, or failed to pay any fine

 

for that conviction or juvenile adjudication, by a fine of not more

 

than $200.00, or both. A court may order a minor under this

 

subdivision to participate in substance abuse prevention services

 

or substance abuse treatment and rehabilitation use disorder

 

services as defined in section 6107 6230 of the public health code,

 

1978 PA 368, MCL 333.6107, 333.6230, and designated by the

 

administrator of the office of substance abuse services, to perform

 

community service, and to undergo substance abuse screening and

 

assessment at his or her own expense as described in subsection

 

(5).

 

     (c) For a third or subsequent violation of this subsection,

 

section 33b(1) of former 1933 (Ex Sess) PA 8, or a local ordinance

 

substantially corresponding to this subsection or section 33b(1) of

 

former 1933 (Ex Sess) PA 8, by imprisonment for not more than 60

days but only if the court finds that the minor violated an order

 

of probation, failed to successfully complete any treatment,

 

screening, or community service ordered by the court, or failed to

 

pay any fine for that conviction or juvenile adjudication, by a

 

fine of not more than $500.00, or both. A court may order a minor

 

under this subdivision to participate in substance abuse prevention

 

services or substance abuse treatment and rehabilitation use

 

disorder services as defined in section 6107 6230 of the public

 

health code, 1978 PA 368, MCL 333.6107, 333.6230, and designated by

 

the administrator of the office of substance abuse services, to

 

perform community service, and to undergo substance abuse screening

 

and assessment at his or her own expense as described in subsection

 

(5).

 

     (2) An individual who furnishes fraudulent identification to a

 

minor, or notwithstanding subsection (1) a minor who uses

 

fraudulent identification to purchase alcoholic liquor, is guilty

 

of a misdemeanor punishable by imprisonment for not more than 93

 

days or a fine of not more than $100.00, or both.

 

     (3) When an individual who has not previously been convicted

 

of or received a juvenile adjudication for a violation of

 

subsection (1) pleads guilty to a violation of subsection (1) or

 

offers a plea of admission in a juvenile delinquency proceeding for

 

a violation of subsection (1), the court, without entering a

 

judgment of guilt in a criminal proceeding or a determination in a

 

juvenile delinquency proceeding that the juvenile has committed the

 

offense and with the consent of the accused, may defer further

 

proceedings and place the individual on probation. The terms and

conditions of that probation include, but are not limited to, the

 

sanctions set forth in subsection (1)(a), payment of the costs

 

including minimum state cost as provided for in section 18m of

 

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

 

712A.18m, and section 1j of chapter IX of the code of criminal

 

procedure, 1927 PA 175, MCL 769.1j, and the costs of probation as

 

prescribed in section 3 of chapter XI of the code of criminal

 

procedure, 1927 PA 175, MCL 771.3. If a court finds that an

 

individual violated a term or condition of probation or that the

 

individual is utilizing this subsection in another court, the court

 

may enter an adjudication of guilt, or a determination in a

 

juvenile delinquency proceeding that the individual has committed

 

the offense, and proceed as otherwise provided by law. If an

 

individual fulfills the terms and conditions of probation, the

 

court shall discharge the individual and dismiss the proceedings.

 

Discharge A discharge and dismissal under this section shall be is

 

without adjudication of guilt or without a determination in a

 

juvenile delinquency proceeding that the individual has committed

 

the offense and is not a conviction or juvenile adjudication for

 

purposes of disqualifications or disabilities imposed by law upon

 

on conviction of a crime. An individual may obtain only 1 discharge

 

and dismissal under this subsection. The court shall maintain a

 

nonpublic record of the matter while proceedings are deferred and

 

the individual is on probation and if there is a discharge and

 

dismissal under this subsection. The secretary of state shall

 

retain a nonpublic record of a plea and of the discharge and

 

dismissal under this subsection. These records shall be furnished

to any of the following:

 

     (a) To a court, prosecutor, or police agency upon on request

 

for the purpose of determining if an individual has already

 

utilized this subsection.

 

     (b) To the department of corrections, a prosecutor, or a law

 

enforcement agency, upon on the department's, a prosecutor's, or a

 

law enforcement agency's request, subject to all of the following

 

conditions:

 

     (i) At the time of the request, the individual is an employee

 

of the department of corrections, the prosecutor, or the law

 

enforcement agency, or an applicant for employment with the

 

department of corrections, the prosecutor, or the law enforcement

 

agency.

 

     (ii) The record is used by the department of corrections, the

 

prosecutor, or the law enforcement agency only to determine whether

 

an employee has violated his or her conditions of employment or

 

whether an applicant meets criteria for employment.

 

     (4) A violation of subsection (1) successfully deferred,

 

discharged, and dismissed under subsection (3) is considered a

 

prior violation for the purposes of subsection (1)(b) and (c).

 

     (5) A court may order an individual convicted of violating

 

subsection (1) to undergo screening and assessment by a person or

 

agency as designated by the substance abuse coordinating agency as

 

defined in section 6103 of the public health code, 1978 PA 368, MCL

 

333.6103, in order department-designated community mental health

 

entity as defined in section 100a of the mental health code, 1974

 

PA 258, MCL 330.1100a, to determine whether the individual is

likely to benefit from rehabilitative services, including alcohol

 

or drug education and alcohol or drug treatment programs. A court

 

may order an individual subject to a conviction or juvenile

 

adjudication of, or placed on probation regarding, a violation of

 

subsection (1) to submit to a random or regular preliminary

 

chemical breath analysis. The parent, guardian, or custodian of a

 

minor under who is less than 18 years of age not emancipated under

 

1968 PA 293, MCL 722.1 to 722.6, may request a random or regular

 

preliminary chemical breath analysis as part of the probation.

 

     (6) The secretary of state shall suspend the operator's or

 

chauffeur's license of an individual convicted of violating

 

subsection (1) or (2) as provided in section 319 of the Michigan

 

vehicle code, 1949 PA 300, MCL 257.319.

 

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

 

minor has consumed alcoholic liquor or has any bodily alcohol

 

content may require request that individual to submit to a

 

preliminary chemical breath analysis. If a minor does not consent

 

to a preliminary chemical breath test, the test shall not be

 

administered without a court order, but a peace officer make seek

 

to obtain a court order. A peace officer may arrest an individual

 

based in whole or in part upon the results of a preliminary

 

chemical breath analysis. The results of a preliminary chemical

 

breath analysis or other acceptable blood alcohol test are

 

admissible in a criminal prosecution to determine whether if the

 

minor has consumed or possessed alcoholic liquor or had any bodily

 

alcohol content. A minor who refuses to submit to a preliminary

 

chemical breath test analysis as required in this subsection is

responsible for a state civil infraction and may be ordered to pay

 

a civil fine of not more than $100.00.

 

     (8) A law enforcement agency, upon on determining that an

 

individual less than 18 years of age who is not emancipated under

 

1968 PA 293, MCL 722.1 to 722.6, allegedly consumed, possessed,

 

purchased alcoholic liquor, attempted to consume, possess, or

 

purchase alcoholic liquor, or had any bodily alcohol content in

 

violation of subsection (1) shall notify the parent or parents,

 

custodian, or guardian of the individual as to the nature of the

 

violation if the name of a parent, guardian, or custodian is

 

reasonably ascertainable by the law enforcement agency. The law

 

enforcement agency shall notify the parent, guardian, or custodian

 

not later than 48 hours after the law enforcement agency determines

 

that the individual who allegedly violated subsection (1) is less

 

than 18 years of age and not emancipated under 1968 PA 293, MCL

 

722.1 to 722.6. The law enforcement agency may notify the parent,

 

guardian, or custodian by any means reasonably calculated to give

 

prompt actual notice including, but not limited to, notice in

 

person, by telephone, or by first-class mail. If an individual less

 

than 17 years of age is incarcerated for violating subsection (1),

 

his or her parents or legal guardian shall be notified immediately

 

as provided in this subsection.

 

     (9) This section does not prohibit a minor from possessing

 

alcoholic liquor during regular working hours and in the course of

 

his or her employment if employed by a person licensed by this act,

 

by the commission, or by an agent of the commission, if the

 

alcoholic liquor is not possessed for his or her personal

consumption.

 

     (10) The following individuals are not considered to be in

 

violation of subsection (1):

 

     (a) A minor who has consumed alcoholic liquor and who

 

voluntarily presents himself or herself to a health facility or

 

agency for treatment or for observation including, but not limited

 

to, medical examination and treatment for any condition arising

 

from a violation of sections 520b to 520g of the Michigan penal

 

code, 1931 PA 328, MCL 750.520b to 750.520g, committed against a

 

minor.

 

     (b) A minor who accompanies an individual who meets both of

 

the following criteria:

 

     (i) Has consumed alcoholic liquor.

 

     (ii) Voluntarily presents himself or herself to a health

 

facility or agency for treatment or for observation including, but

 

not limited to, medical examination and treatment for any condition

 

arising from a violation of sections 520b to 520g of the Michigan

 

penal code, 1931 PA 328, MCL 750.520b to 750.520g, committed

 

against a minor.

 

     (c) A minor who initiates contact with a peace officer or

 

emergency medical services personnel for the purpose of obtaining

 

medical assistance for a legitimate health care concern.

 

     (11) If a minor under the age of who is less than 18 years of

 

age who is not emancipated under 1968 PA 293, MCL 722.1 to 722.6,

 

voluntarily presents himself or herself to a health facility or

 

agency for treatment or for observation as provided under

 

subsection (10), the health facility or agency shall notify the

parent or parents, guardian, or custodian of the individual as to

 

the nature of the treatment or observation if the name of a parent,

 

guardian, or custodian is reasonably ascertainable by the health

 

facility or agency.

 

     (12) This section does not limit the civil or criminal

 

liability of a vendor or the vendor's clerk, servant, agent, or

 

employee for a violation of this act.

 

     (13) The consumption of alcoholic liquor by a minor who is

 

enrolled in a course offered by an accredited postsecondary

 

educational institution in an academic building of the institution

 

under the supervision of a faculty member is not prohibited by this

 

act if the purpose of the consumption is solely educational and is

 

a requirement of the course.

 

     (14) The consumption by a minor of sacramental wine in

 

connection with religious services at a church, synagogue, or

 

temple is not prohibited by this act.

 

     (15) Subsection (1) does not apply to a minor who participates

 

in either or both of the following:

 

     (a) An undercover operation in which the minor purchases or

 

receives alcoholic liquor under the direction of the person's

 

employer and with the prior approval of the local prosecutor's

 

office as part of an employer-sponsored internal enforcement

 

action.

 

     (b) An undercover operation in which the minor purchases or

 

receives alcoholic liquor under the direction of the state police,

 

the commission, or a local police agency as part of an enforcement

 

action unless the initial or contemporaneous purchase or receipt of

alcoholic liquor by the minor was not under the direction of the

 

state police, the commission, or the local police agency and was

 

not part of the undercover operation.

 

     (16) The state police, the commission, or a local police

 

agency shall not recruit or attempt to recruit a minor for

 

participation in an undercover operation at the scene of a

 

violation of subsection (1), section 701(1), or section 801(2).

 

     (17) In a criminal prosecution for the violation of subsection

 

(1) concerning a minor having any bodily alcohol content, it is an

 

affirmative defense that the minor consumed the alcoholic liquor in

 

a venue or location where that consumption is legal.

 

     (18) As used in this section:

 

     (a) "Any bodily alcohol content" means either of the

 

following:

 

     (i) An alcohol content of 0.02 grams or more per 100

 

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

 

milliliters of urine.

 

     (ii) Any presence of alcohol within a person's body resulting

 

from the consumption of alcoholic liquor, other than consumption of

 

alcoholic liquor as a part of a generally recognized religious

 

service or ceremony.

 

     (b) "Emergency medical services personnel" means that term as

 

defined in section 20904 of the public health code, 1978 PA 368,

 

MCL 333.20904.

 

     (c) "Health facility or agency" means that term as defined in

 

section 20106 of the public health code, 1978 PA 368, MCL

 

333.20106.

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.