§ 42-66. Operation of a vessel by person under the influence of intoxicating liquor or a controlled substance.

(a)

Prohibited acts.

(1)

A person shall not operate a vessel on the waters within the City of Gibraltar if either of the following applies:

a.

The person is under the influence of intoxicating liquor or a controlled substance, or both.

b.

The person has a blood alcohol content of 0.10 gram or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

(2)

The owner of a vessel or a person in charge or in control of a vessel shall not authorize or knowingly permit the vessel to be operated on the waters within the City of Gibraltar by a person who is under the influence of intoxicating liquor or a controlled substance, or both, or who has a blood alcohol content of 0.10 gram or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

(3)

A person shall not operate a vessel on the waters within the City of Gibraltar when, due to the consumption of an intoxicating liquor or a controlled substance, or both, the person's ability to operate the vessel is visibly impaired. If a person is charged with violating subsection (a)(1), a finding of guilty under this subsection may be rendered.

(b)

Violation of subsections (a)(1) and (2); sanctions.

(1)

If a person is convicted of violating subsection (a)(1) the following apply:

a.

The person is guilty of a misdemeanor and shall be punished by one or more of the following:

1.

Community service for not more than 45 days.

2.

Imprisonment for not more than 90 days.

3.

A fine of not less than $100.00 nor more than $500.00.

(2)

In addition to the sanctions prescribed under subsection (b)(1), the court may, pursuant to the Code of Criminal Procedure, Act No. 175 of the Public Acts of 1927, being MCL 760.1 to 776.21, order the person to pay the costs of the prosecution.

(3)

A person who is convicted of violating subsection (a)(2) is guilty of a misdemeanor, punishable by imprisonment for not more than 90 days or a fine of not less than $100.00 nor more than $500.00, or both.

(c)

Violation of subsection (a)(3); sanctions.

(1)

If a person is convicted of violating subsection (a)(3), the following apply:

a.

The person is guilty of a misdemeanor punishable by one or more of the following:

1.

Community service for not more than 45 days.

2.

Imprisonment for not more than 90 days.

3.

A fine of not more than $300.00.

(2)

In addition to the sanctions prescribed in subsection (c)(1), the court may, pursuant to the Code of Criminal Procedure, Act No. 175 of the Public Acts of 1927, being MCL 760.1 to 776.21, order the person to pay the costs of the prosecution.

(d)

Peace officer; arrest without warrant; reasonable cause; conditions; returning vessel and occupants to shore; effect of not charging person receiving citation.

(1)

A peace officer, without a warrant, may arrest a person if the peace officer has reasonable cause to believe that the person was, at the time of an accident, the operator of a vessel involved in the accident within this city while in violation of subsections (a)(1) or (3).

(2)

A peace officer who has reasonable cause to believe that a person was operating a vessel on the waters within the City of Gibraltar and that, by the consumption of intoxicating liquor, the person may have affected his or her ability to operate a vessel may require the person to submit to a preliminary chemical breath analysis. The following apply with respect to a preliminary chemical breath analysis:

a.

Only a peace officer who has successfully completed a training course taught by a state-certified instructor in the administration of the preliminary chemical breath analysis may administer the test.

b.

A peace officer may arrest a person based in whole or in part upon the results of a preliminary chemical breath analysis.

c.

The results of a preliminary chemical breath analysis are admissible in a criminal prosecution for a crime described in subsections (a)(1) or (3) or subsection (i)(1) or in an administrative hearing solely to assist the court or hearing officer in determining a challenge to the validity of an arrest. This subsection does not limit the introduction of other competent evidence offered to establish the validity of an arrest.

d.

A person who refuses to submit to a preliminary chemical breath analysis upon a lawful request by a peace officer is responsible for a civil infraction and may be ordered to pay a civil fine of not more than $100.00.

(3)

A peace officer making an arrest under this subsection shall take measures to assure that the vessel and its occupants are safely returned to shore.

(4)

If, within 60 days after the issuance of a citation for a civil infraction under this subsection (d), the person to whom the citation is issued is not charged with a violation of subsections (a)(1) or (3), the citation issued for the civil infraction is void. Upon application of the person to whom the citation is issued, money paid by the person as fine, costs, or otherwise shall be immediately returned.

(e)

Chemical test and analysis of blood, urine or breath; collection of sample or specimen; application of administrative rules.

(1)

The following apply with respect to a chemical test and analysis of a person's blood, urine, or breath, other than a preliminary chemical breath analysis:

a.

The amount of alcohol or presence of a controlled substance, or both, in an operator's blood at the time alleged as shown by chemical analysis of the person's blood, urine, or breath is admissible into evidence in any civil or criminal proceeding.

b.

A person arrested for a crime described in subsections (a)(1) or (3) or subsection (i)(1) shall be advised of all of the following:

1.

That if the person takes a chemical test of his or her blood, urine, or breath administered at the request of a peace officer, the person has the right to demand that someone of the person's own choosing administer one of the chemical tests; that the results of the test are admissible in a judicial proceeding as provided under this chapter and shall be considered with other competent evidence in determining the innocence or guilt of the defendant; and that the person is responsible for obtaining a chemical analysis of a test sample obtained pursuant to the person's own request.

2.

That if the person refuses the request of a peace officer to take the test described in subsection (e)(1)b.1., the test shall not be given without a court order, but the peace officer may seek to obtain such a court order.

3.

That the person's refusal of the request of a peace officer to take the test described in subsection (e)(1)b.1. will result in issuance of an order that the person not operate a vessel on the waters of the state or within the city for at least six months.

(2)

A sample or specimen of urine or breath shall be taken and collected in a reasonable manner. Only a licensed physician, or a licensed nurse or medical technician under the direction of a licensed physician, qualified to withdraw blood and acting in a medical environment, may withdraw blood at the request of a peace officer for the purpose of determining the amount of alcohol or presence of a controlled substance, or both, in a person's blood, as provided in this subsection. A qualified person who withdraws or analyzes blood, or assists in the withdrawal or analysis, in accordance with this chapter is not liable for a crime or civil damages predicated on the act of withdrawing or analyzing blood and related procedures unless the withdrawal or analysis is performed in a negligent manner.

(3)

A rule relating to a chemical test for alcohol or a controlled substance promulgated under the Michigan Vehicle Code, Act No. 300 of the Public Acts of 1949, being MCL 257.1 to 257.923, applies to a chemical test administered under this chapter.

(f)

Chemical test; administration at request of peace officer, during medical treatment or by medical examiner if operator of vessel is deceased; procedures.

(1)

A chemical test described in [this] subsection (f) shall be administered at the request of a peace officer having reasonable grounds to believe the person has committed a crime described in subsection (a)(1). A person who takes a chemical test administered at the request of a peace officer, as provided in subsection (e)(1), shall be given a reasonable opportunity to have someone of the person's own choosing administer one of the chemical tests described in subsection (f) within a reasonable time after the person's detention, and the results of the test are admissible and shall be considered with other competent evidence in determining the innocence or guilt of the defendant. If the person charged is administered a chemical test by someone of the person's own choosing, the person charged is responsible for obtaining a chemical analysis of the test sample.

(2)

If, after an accident, the operator of a vessel involved in the accident is transported to a medical facility and a sample of the operator's blood is withdrawn at that time for the purpose of medical treatment, the results of a chemical analysis of that sample are admissible in any civil or criminal proceeding to show the amount of alcohol or presence of a controlled substance, or both, in the person's blood at the time alleged, regardless of whether the person had been offered or had refused a chemical test. The medical facility or person performing the chemical analysis shall disclose the results of the analysis to a prosecuting attorney who requests the results for use in a criminal prosecution as provided in this subsection. A medical facility or person disclosing information in compliance with this subsection is not civilly or criminally liable for making the disclosure.

(3)

If, after an accident, the operator of a vessel involved in the accident is deceased, a sample of the decedent's blood shall be withdrawn in a manner directed by the medical examiner for the purpose of determining the amount of alcohol or the presence of a controlled substance, or both, in the decedent's blood. The medical examiner shall give the results of the chemical analysis of the sample to the law enforcement agency investigating the accident, and that agency shall forward the results to the State of Michigan.

(g)

Chemical test; introduction of other competent evidence; availability of test results.

(1)

The provisions of subsections (e) and (f) relating to chemical testing do not limit the introduction of any other competent evidence bearing upon the question of whether or not a person was impaired by, or under the influence of, intoxicating liquor or a controlled substance, or both, or whether the person had a blood alcohol content of 0.10 gram or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

(2)

If a chemical test described in subsections (e) and (f) is administered, the results of the test shall be made available to the person charged or the person's attorney upon written request to the prosecution, with a copy of the request filed with the court. The prosecution shall furnish the results at least two days before the day of the trial. The results of the test shall be offered as evidence by the prosecution in that trial. Failure to fully comply with the request bars the admission of the results into evidence by the prosecution.

(h)

Chemical analysis of blood, urine or breath; amount of alcohol in operator's blood; presumptions; refusal to submit to chemical test as evidence.

(1)

Except in a prosecution relating solely to a violation of subsection (a)(1)b., the amount of alcohol in the operator's blood at the time alleged as shown by chemical analysis of the person's blood, urine, or breath gives rise to the following presumptions:

a.

If at the time the defendant had an alcohol content of 0.07 gram or less per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, it shall be presumed that the defendant's ability to operate a vessel was not impaired due to the consumption of intoxicating liquor and that the defendant was not under the influence of intoxicating liquor.

b.

If at the time the defendant had an alcohol content of 0.07 gram but less than 0.10 gram per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, it shall be presumed that the defendant's ability to operate a vessel was impaired within the provisions of subsection (a)(3) due to the consumption of intoxicating liquor.

c.

If at the time the defendant had an alcohol content of 0.10 gram or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, it shall be presumed that the defendant was under the influence of intoxicating liquor.

(2)

A person's refusal to submit to a chemical test as provided in subsections (e) and (f) is admissible in a criminal prosecution for a crime described in subsections (a)(1) and (3) or subsection (i) only for the purpose of showing that a test was offered to the defendant but not as evidence in determining innocence or guilt of the defendant. The jury shall be instructed accordingly.

(i)

Consent to chemical tests of blood, breath or urine; circumstances; exceptions; administration.

(1)

A person who operates a vessel on the waters within the City of Gibraltar is considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance, or both, in his or her blood in all of the following circumstances:

a.

The person is arrested for a violation of subsections (a)(1) or (3).

(2)

A person who is afflicted with hemophilia, diabetes, or a condition requiring the use of an anticoagulant under the direction of a physician shall not be considered to have given consent to the withdrawal of blood.

(3)

A chemical test described in subsection (i)(1) shall be administered as provided in subsections (e) and (f).

(j)

Refusal to submit to chemical test at request of peace officer; obtaining court order; forwarding report to secretary of state.

(1)

If a person refuses the request of a peace officer to submit to a chemical test offered pursuant to subsections (e) or (f), a test shall not be given without a court order, but the officer may seek to obtain the court order.

(2)

If a person refuses a chemical test offered pursuant to subsections (e) and (f), the peace officer who requested the person to submit to the test shall immediately forward a written report to the secretary of state. The report shall state that the officer had reasonable grounds to believe the person committed a crime described in subsection (a)(1) or subsection (i)(1) and that the person refused to submit to the test upon the request of the peace officer and has been advised of the consequences of the refusal. The form of the report shall be prescribed and furnished by the secretary of state.

(k)

Refusal to submit to chemical test; notice of right to request hearing.

(1)

If a person refuses to submit to a chemical test pursuant to subsections (e) or (f), the peace officer shall immediately notify the person in writing that within 14 days of the date of the notice the person may request a hearing as provided in subsection (l). The form of the notice shall be prescribed and furnished by the secretary of state.

(2)

The notice shall specifically state that failure to request a hearing within 14 days will result in issuance of an order that the person not operate a vessel on the waters of this state. The notice shall also state that there is not a requirement that the person retain counsel for the hearing, though counsel is permitted to represent the person at the hearing.

(l)

Refusal to submit to chemical test; failure to request hearing; manner and conditions of hearing if requested; record of proceedings; order; petitions to review order or to review determination of hearing officer.

(1)

If a person who refuses to submit to a chemical test pursuant to subsections (e) or (f) does not request a hearing within 14 days of the date of notice pursuant to subsection (j), the secretary of state shall issue an order that the person not operate a vessel on the waters of this state for six months or, for a second or subsequent refusal within seven years, for one year.

(2)

If a hearing is requested, the secretary of state shall hold the hearing in the same manner and under the same conditions as provided in section 332 of the Michigan Vehicle Code, Act No. 300 of the Public Acts of 1949, being MCL 257.322. A person shall not order a hearing officer to make a particular finding on any issue enumerated under subsections a. to d. below. Not less than five days' notice of the hearing shall be mailed to the person requesting the hearing, to the peace officer who filed the report under subsection (i) and, if the prosecuting attorney requests receipt of the notice, to the prosecuting attorney of the county where the arrest was made. The hearing officer may administer oaths, issue subpoenas for the attendance of necessary witnesses, and grant a reasonable request for an adjournment. Not more than one adjournment shall be granted to a party, and the length of an adjournment shall not exceed 14 days. A hearing under this subsection shall be scheduled to be held within 45 days after the date of arrest and, except for delay attributable to the unavailability of the defendant, a witness, or material evidence or to an interlocutory appeal or exceptional circumstances, but not for delay attributable to docket congestion, shall be finally adjudicated within 77 days after the date of arrest. The hearing shall cover only the following issues:

a.

Whether the peace officer had reasonable grounds to believe that the person had committed a crime described in subsection (a)(1) or subsection (i)(1).

b.

Whether the person was placed under arrest for a crime described in subsection (a)(1) or subsection (i)(1).

c.

If the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable.

d.

Whether the person was advised of his or her rights under subsection (e).

(3)

The hearing officer shall make a record of proceedings held pursuant to subsection (l)(2). The record shall be prepared and transcribed in accordance with section 86 of the Administrative Procedures Act of 1969, Act No. 306 of the Public Acts of 1969, being MCL 24.286. Upon notification of the filing of a petition for judicial review in circuit court and not less than ten days before the matter is set for review, the hearing officer shall transmit to the court in which the petition is filed the original or a certified copy of the official record of the proceedings. The parties to the proceedings for judicial review may stipulate that the record be shortened. A party unreasonably refusing to stipulate to a shortened record may be taxed by the court in which the petition is filed for the additional costs. The court may permit subsequent corrections to the record.

(4)

After a hearing, if the person who requested the hearing does not prevail, the secretary of state shall order that the person not operate a vessel on the waters of this state for six months or, for a second or subsequent refusal within seven years, for one year. The person may file a petition in the circuit court of the county in which the arrest was made to review the order. If after the hearing the person who requested the hearing prevails, the peace officer who filed the report under subsection (n) may, with the consent of the prosecuting attorney, file a petition in the circuit court of the county in which the arrest was made to review the determination of the hearing officer.

(m)

Order not to operate vessel on waters of state; convictions requiring issuance of order by secretary of state; effectiveness of order if more than one conviction results from the same incident.

(1)

Notwithstanding a court order issued under subsections (a)(1) or (3), former sections 171(1), (3), (4) or (5), 181 or 182 of the Marine Safety Act, former sections 73 or 73b of the Marine Safety Act, or a local ordinances substantially corresponding to subsections (a)(1) or (3), or former sections 73 or 73b of the Marine Safety Act, if a court has not ordered a person not to operate a vessel as authorized by this chapter, the secretary of state shall issue an order that the person not operate a vessel on the waters of this state for not less than six months nor more than two years, if the person has the following convictions within a seven-year period, whether under the law of the State of Michigan, a local ordinance substantially corresponding to a law of this state, or a law of another state substantially corresponding to a law of the State of Michigan:

a.

One conviction under subsection (a)(1), former section 171(1) of the Marine Safety Act, or former section 73 of the Marine Safety Act.

b.

Any combination of two convictions under subsection (a)(3), former section 171(3) of the Marine Safety Act, or former section 73b of the Marine Safety Act.

c.

One conviction under subsection (a)(1), former section 171(1) of the Marine Safety Act, or former section 73 of the Marine Safety Act and one conviction under subsection (a)(3), former section 171(3) of the Marine Safety Act, or former section 73b of the Marine Safety Act.

(2)

If the secretary of state receives records of more than one conviction of a person resulting from the same incident, an order not to operate shall be issued solely for that violation for which an order could be effective for the longest period of time under this subsection

(n)

Failure to answer citation or notice to appear in court or comply with judgment or order; notice of issuance of order without expiration date; conditions terminating order.

(1)

If a person is charged with or convicted of a violation of subsections (a)(1), (2) or (3), or a local ordinance substantially corresponding to subsections (a)(1), (2) or (3), and the person fails to answer a citation or a notice to appear in court, or for any matter pending, or fails to comply with an order or judgment of the court, including but not limited to paying all fines, costs, and crime victim rights assessments, the court shall immediately given notice by first-class mail sent to the person's last known address that if the person fails to appear within seven days after the notice is issued or fails to comply with the order or judgment of the court, including but not limited to paying all fines, costs, and crime victim rights assessments, within 14 days after the notice is issued, the secretary of state will issue an order with no expiration date that the person not operate a vessel on the waters of this state. If the person fails to appear within the seven-day period or fails to comply with the order or judgment of the court, including but not limited to paying all fines, costs, and crime victim rights assessments, within the 14-day period, the court shall immediately inform the secretary of state, who shall immediately issue the order and send a copy to the person by personal service or first-class mail sent to the person's last known address.

(2)

An order imposed under subsection (n)(1) remains in effect until both of the following occur:

a.

The court informs the secretary of state that the person has appeared before the court and that all matters relating to the violation are resolved.

b.

The person has paid to the court an administrative order processing fee of $25.00.

(Ord. No. 340, 10-26-2009)