Michigan Traffic Safety Summit 2007How to Read a Driving Record

&

Implied Consent Hearing Overview

Presented by Kay Lanier-Jones, Director

Driver Assessment and Appeal DivisionMichigan Department of State

www.michigan.gov/sos1-888-767-6424

Objectives

To correctly interpret a driving record.To understand “Repeat Offenders” as

identified by the driving record.To correctly interpret Ignition Interlock

requirements on the driver record.To correctly interpret “Driver

Responsibility” entries on a driver record. An overview of Implied Consent Hearings

Restrictions Restrictions are sanctions placed upon the

driving privileges of an offender and recorded on their master driving record detailing the limitations applied. Restrictions are indefinite or for a limited period of time.

Restrictions may be imposed at DA reexaminations under MCL 257.310d and MCL and MCL 257.320, 319 or 322.

Restrictions continue until fee paid

Generic Restrictions

May drive to and from residence and employment, during employment, to treatment and/or support group meeting, to regularly schedule treatment for serious medical condition, to probation, community service and school, must carry proof of destinations and hours.

Suspensions & Revocations

Suspensions: A suspension is a temporary loss

Carries “from” and “through” date After “through” date, reinstatement fee is required for relicensure

“No valid license” status until payment of reinstatement fee

Revocations: Sec. 303, 320, & 625 The most serious action is a revocation (MCL 257.52)

Termination of the driver license and privilege to operate a motor vehicle

Eligible to reapply to SOS for restoration [MCL 257.303(4)(a)(i)(ii)]:

After 1 year following a first revocation After 5 years for a subsequent revocation w/in 7

years No guarantee license will be returned

REPEAT OFFENDER >10/01/1999

The person has 2 or more additional susp/revocations under MCL 257.904 and is being charged with DWLS/Rev/Denied

Any combination of 2 substance abuse convictions, murder, negligent homicide, manslaughter within 7 years

904C Plate Confiscation LEIN Response 35:1

001 prior violation[625] or Murder, Manslaughter, Negligent Homicide with a vehicle

002 prior additional suspension/revocations [904(10), (11), (12)]

“if arresting for 2nd or more alcohol [625] or DWL (during any type of sup/rev)

With 2 or more prior mandatory additional suspension/revocations, plate

confiscation is required. Destroy the plate and issue a paper plate. Do not

confiscate dealer, manufacturer, out-of-state, rental, trailer, boat, US government,

Or apportioned (IRP) plates. MCL 257.904c”

Arresting for drunk driving? If 001 or more in this field

then take plate.

Arresting forDWLS? If 002 or

More in this field thenTake plate.

Ignition Interlock No longer court-ordered. Ordered by DAAD for all habitual offenders returning

to the road. Mandatory 1-year. Any hearing on or after 10/01/99. Discretionary with hearing officer after first year [see

Beaman v SOS, unpublished Ct of Appeals (2004)]

Sample Restricted Driver License

RESTRICTIONS EFFECTIVE 10/13/2005 THROUGH *INDEFINITE* AND UNTIL PAYMENT OF REINSTATEMENT FEE, LICENSEE SHALL NOT CONSUME INTOXICANTS, ANY ALCOHOL/DRUG RELATED ACTIVITY, ORIGINAL ACTION TO BE REINSTATED, MAY ONLY OPERATE VEHICLE EQUIPPED WITH INTERLOCK DEVICE, MAY DRIVE TO AND FROM CALIBRATION, ORIGINAL ACTION TO BE REINSTATED UPON VIOLATION, IGNITION INTERLOCK REQUIRED FOR ONE YEAR FROM DATE OF RESTRICTION, MAY DRIVE TO AND FROM RESIDENCE AND EMPLOYMENT, DURING EMPLOYMENT, TO TRTMENT AND/OR SUPPORT GROUP MTGS, TO REGULARLY SCHEDULED TRTMENT FOR SERIOUS MEDICAL CONDITION, TO PROBATION, COMMUNITY SERVICE AND SCHOOL, MUST CARRY PROOF OF DESTINATIONS AND HOURS ; SAFETY BELT USE REQUIRED.

Mark Anthony Atchison A 322 000 187 823 Kay Lanier-Jones

333 Lansing Ave 2010 11/13/2005 X

Lansing MI 48917-1758 PR-OPER NO BRO 5-11 185

Driver Responsibility Effective October 1, 2003, the Driver

Responsibility Program calls for a monetary fee for drivers who:

Are convicted of specific qualifying offenses, or Accumulate seven or more qualifying points on their

driving records.

C-200-139-040-254 ANNE MARIE CARDRIVER 05/28/1952 F 5-04 125 BLU IMAGE 14566 STATE ST R-OPER 05/23/2004 2008 LANSING MI 48918-0001 78 VOTER CORRECTIVE LENS

04/20/2004 KALAMAZOO 04/12/2004 SPEED 90/70 -PA 4

04/11/2005 DETROIT 02/15/2005 NO PROOF OF INSURANCE -PA

**** 05/12/2005 DRIVER RESPONSIBILITY FEE NOTIFICATION FOR QUALIFYING CONVICTION FROM ACTIVITY OF 04/11/200 ASSESSMENT: N456789

07/08/2005 JACKSON 06/28/2005 SPEED 50/40 -PU 2

07/23/2005 LIVONIA 07/17/2005 DISOBEYED TRAFFIC SIGNAL -PA 3 **** 09/15/2005 DRIVER RESPONSIBILITY FEE NOTIFICATION FOR QUALIFYING

POINTS 09/13/2005 ASSESSMENT: M123456 **** DRIVER RESPONSIBILITY FEE SUSPENSION FROM 12/26/2005 THROUGH *INDEFINITE*, ASSESSMENT: N456789 LICENSE NOT VALID UNTIL REINSTATEMENT FEE PAID, FROM ACTIVITY OF 05/12/2005

**** DRIVER RESPONSIBILITY FEE SUSPENSION FROM 12/26/2005 THROUGH *INDEFINITE*, ASSESSMENT M123456 LICENSE NOT VALID UNTIL REINSTATEMENT FEE PAID, FROM ACTIVITY OF 09/15/2005

**** TERMINATED DRIVER RESPONSBILITY FEE SUSPENSION 05/22/2006, ASSESSMENT: N456789, FROM ACTIVITY OF 12/26/2005

**** TERMINATED DRIVER RESPONSBILITY FEE SUSPENSION 05/22/2006, ASSESSMENT: M123456, FROM ACTIVITY OF 12/26/2005

**** 05/30/2006 PAID DRIVER RESPONSIBILITY FEE FOR QUALIFYING CONVICTION FROM ACTIVITY OF 05/12/2005 ASSESSMENT: N456789

**** 05/30/2006 PAID DRIVER RESPONSIBILITY FEE FOR QUALIFYING POINTS FROM ACTIVITY OF 09/15/2005 ASSESSMENT: M123456

Implied Consent MCL 257.625c - A person who operates a vehicle upon a public

highway or other place open to the general public or generally accessible to motor vehicles within this state is considered to have given implied consent. Exception: Persons afflicted with diabetes, hemophilia or a condition

requiring use of an anticoagulant have NOT given implied consent for a blood test. MCL 257.625c(2).

Sanctions for refusal:

6 points added to driving record

First implied consent refusal 1 year suspension – may appeal to circuit court on hardship or merits

Second implied consent refusal 2 year suspension – may only appeal to circuit court on merits

Implied Consent Hearings

If person requests a hearing within 14 days of the arrest, implied consent sanctions are stayed and a hearing is scheduled. MCL 257.625f.

FOUR STATUTORY ISSUES AT THE IMPLIED CONSENT HEARING [Found on the Notice of Hearing]

1. Whether the peace officer had reasonable grounds to believe that the person had committed a crime described in section 625c(1).

2. Whether the person was placed under arrest for a crime described in section 625c(1)

3. Whether the person was advised of chemical test rights under section 625a(6)

4. Whether the person refused to submit to a chemical test upon the request of the officer, and whether the refusal was unreasonable.

Implied Consent Hearings

(continued)● Notice of Hearing – Only officers identified in

the LEIN Report will be noticed● Burden of proof – The arresting officer has the

burden of proof at IC hearings● Must prove case and all four issues by a

preponderance of the evidence● Petitioner must prove affirmative defenses● Witnesses may be sequestered.

● The Petitioner and the Officer in Charge may remain in the hearing room at all times.

Implied Consent Hearing Format

Opening Statements Presentation of proofs

Arresting officer’s direct testimony Cross examination of the arresting officer by

petitioner/attorney [Repeat if there is more than one police officer]

Petitioner’s direct testimony Cross examination of the petitioner Rebuttal by police officer Cross examination on rebuttal Rebuttal by petitioner [Optional] Cross examination on rebuttal [Optional]

Closing Statements

Issue 1: Reasonable Grounds

Officer should offer specific testimony explaining why they believed the driver was operating under the influence. Odor of intoxicants, slurred speech, bloodshot

eyes. Driver admission that they had been drinking. Observations during Field Sobriety Tests. PBT results.

Issue 2: Arrest Valid arrest is a prerequisite to Implied Consent

obligations – Gallagher v SOS, 59 Mich App 269, 229 NW2d 410 (1975).

Arrest MUST be for a crime described in MCL 257.625(c)(1), such as driving while impaired or intoxicated by alcohol or drugs, driving with presence of Schedule 1 drug in body (including marijuana), or for person under 21 driving with a BAC.

Issue 2: Warrantless Arrest

MCL 764.15(1)(a) – Requires that a felony, misdemeanor or ordinance violation be committed in the officer’s presence in order to arrest without a warrant.

Notable Exceptions to “Presence” Requirement

MCL 764.15(1)(d) – 93 day Misdemeanor Exception People v Stephen, 262 Mich App 213, 685 NW2d 309 (2004)

– Officer does not have to observe defendant operating a vehicle.

MCL 764.15(1)(h) and MCL 257.625a(1)(a) – Accident Exception

MCL 257.625a(1)(b) – Where person is found in the driver’s seat of a vehicle parked or stopped on a highway or street where any part of the vehicle intrudes into the roadway and officer has reasonable cause to believe the person was operating while impaired or intoxicated.

Issue 3: Chemical Test Rights

Under MCL 257.625a(6), driver must be advised of all of the following: If driver takes chemical test at request of officer, driver has the

right to demand that a person of their choosing administer a chemical test.

Test results are admissible in judicial proceedings to be considered with other evidence in determining guilt or innocence.

Driver is responsible for obtaining chemical analysis obtained pursuant to their request.

If driver refuses officer’s test, a test will not be administered without a court order, but officer may choose to seek such an order.

Refusal of officer’s test will result in a suspension and 6 points.

Issue 3: Chemical Test Rights (continued)

Read Chemical Test Rights verbatim from DI-93 or DI-177 forms.

Do not explain the chemical test rights other than as worded on the DI-93 or DI-177 forms.

Caution: Do not advise of the length of the suspension.

At the hearing, officer should submit a clear copy of the DI-93 or the DI-177 to be admitted into record.

Issue 4: Unreasonable Refusal

Collins v SOS, 384 Mich 656, 187 NW2d 423 (1971)

Anything short of unconditional consent is a refusal.

Officer, not driver, chooses which test to be offered.

But Note: Hall v SOS, 60 Mich App 431, 231 NW2d 396 (1975) Commendable police practice is to allow a brief call to attorney for advice

before driver decides whether to take the chemical test. Totality of the circumstances determines reasonableness of refusal if call

to attorney not allowed (see People v Bradford).

Documented physical inability to complete test is reasonable.

Issue 4: DataMaster Refusals

Review chapter 8 of the “Michigan Breath Test Operator Training Manual”.

Technical Refusal - machine determines 5 unsuccessful attempts anytime within 2 minute testing period.

Operator Refusal - operator determines 2 minute testing period expires without sufficient breath sample.

“INVALID SAMPLE” is not a refusal. At the hearing, the breath test operator should

submit DataMaster evidence tickets for each test to be admitted into the record.

Recent Appellate Decisions

People v Fosnaugh, 248 Mich App 444, 639 NW2d 587 (2001)

One valid breath sample is sufficient.

People v Parton, unpublished Ct of Appeals (09-30-2004)

One observation period is sufficient to obtain a valid breath sample.

People v Bradford, unpublished Ct of Appeals (12-27-2005) The reasonableness of a refusal depends on the totality of the circumstances.

People v Anstey, 476 Mich 436, 719 NW2d 579 (2006) Dismissal of charges is not the remedy for a denial of independent test – Koval overruled.

Questions