STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6071

May 28, 1982

INTERIM BONDS:

Application to person arrested for operating a vehicle while under the influence of intoxicating liquor

TRAFFIC RULES & REGULATIONS:

Appearance ticket to person charged with operating a vehicle while under the influence of intoxicating liquor

An interim bond is authorized for a person arrested and charged with a misdemeanor for operating a vehicle while under the influence of intoxicating liquor.

An appearance ticket may not issue to a person arrested without a warrant for operating a vehicle while under the influence of intoxicating liquor.

Colonel Gerald L. Hough

Director

Department of State Police

714 South Harrison Road

East Lansing, Michigan 48823

You have requested my opinion on two questions. Your first question is:

Your first question arises because of a recent statutory amendment increasing the maximum fine for conviction of operating a vehicle while under the influence of intoxicating liquor or controlled substance or combination of them, hereafter referred to as DUIL, in violation of the Michigan Vehicle Code, 1949 PA 300; MCLA 257.1 et seq; MSA 9.1801 et seq, Sec. 625. Prior to its amendment by 1980 PA 515, 1949 PA 300, Sec. 625, supra, provided a maximum monetary penalty of $100.00 for a first offense. 1980 PA 515 amended 1949 PA 300, Sec. 625, supra, to increase the maximum fine to $500.00. You question whether such an increase in the maximum fine makes a person arrested and charged with DUIL no longer eligible for an interim bond pursuant to 1961 PA 44; MCLA 780.581 et seq; MSA 28.872(1) et seq.

1949 PA 300, Sec. 625(1), supra, sets forth the DUIL offense, while subsections (3)(a) and (b) thereof prescribe the following penalties:

1961 PA 44, supra, sets forth the circumstances under which an interim bond is available. 1961 PA 44, supra, Sec. 1, in pertinent part, provides:

A study of the legislative history of 1961 PA 44, Sec. 1, supra, is instructive. The Legislature last amended it by means of 1970 PA 157 to add subsection (2)(b) to provide expressly for posting of a $200.00 bond if the offense charged is a violation of the DUIL statute, 1949 PA 300, Sec. 625, supra, if no magistrate is available or immediate trial may not be had. In addition, 1970 PA 157 amended 1961 PA 44, Sec. 1, supra, renumbering it and striking the words 'any offense' and inserting in their place, the word 'misdemeanor.' This amendment was necessitated by the fact that 1949 PA 300, Sec. 625, supra, then extant, provided for a first offense misdemeanor punishable by imprisonment for not more than 90 days or a fine of not less than $50.00 nor more than $100.00, or both; a second offense misdemeanor punishable by imprisonment for not more than one year or a fine of not more than $1,000.00 or both; and a third offense, within a period of ten years, punishable as a felony. The Legislature was aware of these provisions and made the corresponding change from 'any offense' to 'misdemeanor' to make its intent manifest that the posting of an interim bond for DUIL was in the case of a misdemeanor charge only. The fact that the Legislature subsequently amended 1949 PA 300, Sec. 625, supra, by 1980 PA 515 to increase the monetary penalty for conviction of DUIL as a first offense misdemeanor from not less than $50.00 nor more than $100.00 to not less than $100.00 nor more than $500.00, does not compel a different conclusion.

Thus, 1961 PA 44, Sec. 1(2)(b), supra, continues to provide expressly for the posting of an interim bond by persons arrested for DUIL, provided that the person is charged with a misdemeanor, whether for a first or second offense.

It should be noted, however, that an interim bond is not available to a person who has been convicted twice for DUIL and, within a period of ten years, is charged with a third such offense, since upon conviction for a third offense a person is guilty of a felony. The title to 1961 PA 44, supra, indicates that the availability of interim bonds is limited to persons charged with misdemeanor offenses:

Thus, although the reference to DUIL offenses in 1961 PA 44, Sec. 1(2)(b), supra, does not explicitly state whether interim bonds are available for felony offenses, the title resolves the matter. The general terms of an act are restricted by a title which specifically refers to a particular class. Booth v Eddy, 38 Mich 245 (1878).

It is my opinion, therefore, that an interim bond is authorized for a person arrested and charged with a misdemeanor for operating a vehicle while under the influence of intoxicating liquor.

You next ask:

1927 PA 175, c 4, supra, Sec. 9(b), as last amended by 1980 PA 506, provides:

The term 'minor offense,' as defined by 1927 PA 175, c 1, Sec. 1(k); MCLA 761.1; MSA 28.843, 'means a misdemeanor or ordinance violation for which the maximum permissible imprisonment does not exceed 92 days and the maximum permissible fine does not exceed $500.00.'

A person arrested for DUIL as a first offense would be charged with a misdemeanor punishable by maximum imprisonment for 90 days and a maximum fine of $500.00, so the person would stand charged with a minor offense for which an appearance ticket may be appropriate pursuant to 1927 PA 175, c 4, Sec. 9(b), supra.

However, 1949 PA 300, supra, Sec. 728(1), as last amended by 1979 PA 66, contains its own procedure for releasing persons arrested without a warrant for violation of a covered offense punishable as a misdemeanor:

In accordance with the underscored language in 1949 PA 300, Sec. 728(1), supra, the Legislature has in 1949 PA 300, supra, Sec. 727(2), set out an offense for which service of a citation with immediate release is not available.

It is readily apparent that 1927 PA 175, c 4, Sec. 9b, supra, and 1949 PA 300, Sec. 727(2) and 728(1), supra, are in conflict and resolution of the contest between the two statutes must be effected in accordance with accepted principles of statutory construction.

1927 PA 175, c 4, Sec. 9b, supra, is part of The Code of Criminal Procedure entitled by the Legislature as 'AN ACT to revise, consolidate, and codify the laws relating to criminal procedure . . ..' Thus, it is a general statute dealing with procedure in criminal cases. On the other hand, 1949 PA 300, Secs. 727 and 728, supra, are parts of the Michigan Vehicle Code, designated by the Legislature in its title as 'AN ACT to provide for the . . . regulation of vehicles upon the public highways of this state; . . . (and) to provide penalties for violation of any provisions of this act . . ..' It is demonstrable that it is a special statute relating to the regulation of the operation of vehicles upon the highways of the state with appropriate penalties for violation of its provisions. While both 1927 PA 175, c 4, Sec. 9b, supra, and 1949 PA 300, Secs. 727 and 728, supra, are portions of codes enacted by the Legislature, the code dealing with regulation of operation of motor vehicles must be held to be special and the code dealing with procedure in criminal cases to be general so that any conflict is resolved in favor of the special code, 1949 PA 300, Secs. 727 and 728, supra, even though 1949 PA 300, Secs. 727 and 728, supra, were enacted earlier. See, Imlay Twp Primary School Dist No 5 v State Board of Education, 359 Mich 478, 485; 102 NW2d 720 (1960); Attorney General, ex rel Owen, v Joyce, 233 Mich 619; 207 NW 863 (1926).

Thus, it must be concluded that the Legislature has prohibited the issuance of an appearance ticket and immediate release for a person charged with a misdemeanor offense for DUIL under 1949 PA 300, Sec. 625(1) or (2), supra.

In response to your second question, it is my opinion that a law enforcement officer may not issue an appearance ticket to a person arrested without a warrant for operating a vehicle while under the influence of intoxicating liquor.

Frank J. Kelley