STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5628

January 18, 1980

MICHIGAN VEHICLE CODE:

Construction and loading of vehicles to avoid contents from escaping

Where an officer has arrested a person for violation of the provision in the Michigan Vehicle Code which provides for the construction and loading of vehicles to avoid the contents from escaping, he or she may issue a citation for such violation.

Upon conviction of such violation, an abstract must be sent to the Secretary of State for assignment of points to the driver's record.

A person convicted of violations of this provision must be assessed two points on his or her driving record. However, an individual, not the driver, may not be assigned points on his or her driving record if convicted of such violation.

The Michigan Vehicle Code does not require proof that the operator of the vehicle have any intent to violate the law in order to sustain a conviction for such violations.

The Honorable Robert VanderLaan

State Senator

The Capitol

Lansing, Michigan 48909

You have written requesting my opinion on the following questions:

In your first question you ask whether the driver of a vehicle found in violation of Sec. 720 of the Michigan Vehicle Code, may be ticketed by a law enforcement officer. The Michigan Vehicle Code Sec. 720, 1949 PA 300, Sec. 720; MCLA 257.720; MSA 9.2420, provides for the proper construction and loading of certain vehicles in order to avoid the contents of such vehicles from 'dropping, sifting, leaking, blowing off, or otherwise escaping therefrom.' The section also provides as follows:

The Michigan Vehicle Code, Sec. 728 provides that an officer arresting a person for a misdemeanor violation shall cite that person.

Where an officer has arrested a person for a violation of the Michigan Vehicle Code which is punishable as a misdemeanor, he or she may issue a citation. As Sec. 720 of the Michigan Vehicle Code is a misdemeanor, it is my opinion that the driver of a vehicle from which the contents are escaping while the vehicle is being driven or moved may be cited by the arresting officer.

In your second question you ask whether a violation of $720 of the Michigan Vehicle Code, supra, is a moving violation for which an abstract must be sent to the secretary of state pursuant to Sec. 732 of the code, MCLA 257.732; MSA 9.2432, and for which points must be assigned by the secretary of state pursuant to Sec. 320a(1)(i) of the Michigan Vehicle Code; MCLA 257.320a(1)(i); MSA 9.2020(1)(i).

Section 732 of the Michigan Vehicle Code, supra, provides:

Thus, the code mandates that where a person is convicted, determined responsible or has forfeited bail, the judge or clerk of the court of record shall prepare and forward to the secretary of state an abstract of the record.

A violation of Sec. 720 of the Michigan Vehicle Code, supra, is clearly within the parameters of Sec. 732 of the code. It is my opinion that an abstract must be sent to the secretary of state by the authorities made responsible for such reporting under the code.

Section 320a of the Michigan Vehicle Code provides for the addition of points to a driver's operating record upon conviction of an infraction under the code as follows:

As a violation of Sec. 720 of the Michigan Vehicle Code, supra, is not specifically mentioned in the statute, it clearly falls within Sec. 720(1)(i) of the code, relating to 'all' other moving violations. It is therefore my opinion that a person convicted of violation of Sec. 720 of the code, supra, must be assessed 2 points on his or her driving record pursuant to Sec. 320a of the code, supra. See also OAG, 1963-1964, No 4302, p 363 (April 9, 1964).

In your third question you ask whether an individual, not the driver, responsible for the infraction of Sec. 720 of the Michigan Vehicle Code, supra, must be assigned points on his or her driving record pursuant to Sec. 320a(1)(i) of the code.

The assessment of points against an operator's license is premised on that operator's convictions for violations of the Michigan Vehicle Code. Sec. 720 of the Michigan Vehicle Code provides:

However, it is not a moving violation for the purpose of assessing points against the company or an individual who loaded the vehicles since neither the company nor the individual who loaded the vehicle is involved in the moving of the vehicle.

It is therefore my opinion that an individual, not the driver, may not be assigned points on his or her driving record pursuant to Sec. 320a(1)(i) if that individual is convicted of an infraction of the code.

In your fourth question you ask whether the imposition of the misdemeanor penalty contained in Sec. 720 of the Michigan Vehicle Code, supra, requires proof of intent on the part of the operator of the vehicle before the violation may be proved, the abstract dispatched and the points assessed.

Section 720 of the Motor Vehicle Code, supra, provides that:

In contrast, it will be noted that the Legislature has provided with respect to the conduct of the company or individual who leads the vehicle, that the violation is only committed if done 'with knowledge that it is to be driven on a public highway.'

In People v Roby, 52 Mich 577-579; 18 NW 365 (1884), the court stated:

Thus, in People v Roby, the court upheld the conviction of a saloon keeper who violated a law requiring all saloons to be closed on Sunday despite the fact that the violation occurred without his knowledge or consent.

Sec. 520 of the Michigan Vehicle Code, supra, contains no requirement that the operator of the vehicle have an intent to operate that vehicle in contravention of the statute before he may be cited with its violation misdemeanor. It is therefore my opinion that no proof of intent need be shown to secure the conviction of a vehicle operator for violation of Sec. 720 of the Michigan Vehicle Code, supra.

Frank J. Kelley