STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6481

December 9, 1987

MOTOR VEHICLES:

Assessment for civil infraction determination for moving violation of ordinance

Effective date of assessment for civil infraction determination for moving violation

WORDS AND PHRASES:

"Moving violation"

The Legislature has required in Sec. 629e of the Michigan Vehicle Code that a $5.00 assessment shall be imposed for each civil infraction determination for a moving violation of state law or a local ordinance substantially corresponding to state law.

For purposes of the $5.00 assessment required by Sec. 629e of the Michigan Vehicle Code, a "moving violation" takes place when the operator of a motor vehicle violates the state law or an ordinance substantially corresponding to state law while the vehicle is actually moving.

The minimum fine and assessment provisions of Secs. 629c and 629e of the Michigan Vehicle Code apply only to civil infraction determinations for moving violations which occurred on or after November 29, 1987.

Honorable Doug Cruce

State Senator

The Capitol

Lansing, Michigan 48913

You have requested my opinion on three questions concerning the meaning and effect of amendatory 1987 PA 154.

1987 PA 154 amended Sec. 628(1) of the Michigan Vehicle Code, MCL 257.1 et seq; MSA 9.1801 et seq, to increase the maximum speed limit for certain motor vehicles on interstate highways in rural areas. It also amended Secs. 320a and 629b of and added Secs. 629c, 629d, and 629e to the Michigan Vehicle Code to provide for additional traffic enforcement measures for the protection and safety of the public. 1987 PA 154 became effective on November 29, 1987. OAG, 1987-1988, No 6480, p ___ (November 23, 1987).

Your first question relates to added Sec. 629e(1) and states:

Section 629e(1) of the Michigan Vehicle Code, as added by 1987 PA 154, MCL 257.629e(1); MSA 9.2329(5)(1), provides:

This subsection expressly imposes an assessment of $5.00 for each civil infraction determination for a moving violation. It is silent, however, as to whether the imposition of the assessment for the civil infraction determinations applies to moving violations under state law only or includes moving violations under ordinances substantially corresponding to state law.

The legislative intent should be ascertained and given effect. Metropolitan Council, No 23, AFSCME v Oakland County Prosecutor, 409 Mich 299, 318; 294 NW2d 578 (1980). Intent may be determined by an examination of sections of the Michigan Vehicle Code amended and added by 1987 PA 154. See, In re Corby's Estate, 154 Mich 353, 357; 117 NW 906 (1908).

In raising the maximum speed limit through amendment of Sec. 628 of the Michigan Vehicle Code, 1987 PA 154 also amended Sec. 320a of and added Sec. 629c to the Michigan Vehicle Code to establish a new system of points and minimum fines for speed violations on limited access highways where the speed limit is 55 miles per hour or greater. While a number of subsections of Sec. 320a(1) relate to points to be assessed for violation of "a law or ordinance corresponding" to a specific section of the Michigan Vehicle Code, subsection (7) requires the imposition of the respective number of points for "[v]iolation of any law or ordinance" exceeding the lawful maximum speed limit by more than the specified miles per hour.

In adding Sec. 629c to impose minimum fines and the imposition of points for speeding violations "[n]otwithstanding sections 320a and 907," the Legislature was aware of the minimum points to be awarded for civil infraction determinations for violation of both state laws and ordinances corresponding to state laws.

The Legislature was, thus, cognizant of the imposition of points for civil infraction determinations for violations of any state law or ordinance substantially corresponding to state law when it added Sec. 629e to require the "assessment of $5.00 for each civil infraction determination for a moving violation." Because it did not restrict the assessment to moving violations of state law only, the term "each civil infraction violation" encompasses both the violation of state law and ordinances substantially corresponding to state law. Had the Legislature intended to impose such a stricture, it would have done so in an unequivocal manner.

It is my opinion, in answer to your first question, that Sec. 629e requires the imposition of a $5.00 assessment for each civil infraction determination for a moving violation of state law or a local ordinance substantially corresponding to state law.

Your second question is:

The term "moving violation" in the Michigan Vehicle Code was considered and applied in OAG, 1985-1986, No 6292, p 64 (May 8, 1985), and OAG, 1963-1964, No 4302, p 363 (April 9, 1964). Although neither opinion defined that term, the operation of a go-cart or similar self-propelled vehicle in a reckless manner upon a public highway in violation of the Michigan Vehicle Code was determined to be a "moving violation" requiring the posting of points upon the operator's driver's record, OAG, 1985-1986, No 6292, supra, and the operation of a motor vehicle with defective equipment in violation of the Michigan Vehicle Code was determined to be a "moving violation" requiring the assessment of points upon a driving record of the operator, OAG, 1963-1964, No 4302, supra.

It has been held that the operation of a motorcycle by a driver without protective headgear constituted a "moving traffic violation" for which the operator's license could be suspended. Texas Dep't of Public Safety v Ryland, 533 SW2d 91, 93 (Tex Civ App, 1976).

The term "moving traffic violation" has been described as a generic term and includes speeding convictions, unless the Legislature expressly determines that driving under certain speeds not to be moving violations. State v Herber, 1 Kan App 732, 734; 573 P2d 1112, 1114 (1977). Operating a motor vehicle without a license constituted a "moving violation" for the purpose of assessing points and suspension of an operator's license. Rudd v David, 444 SW2d 457, 460 (Mo 1969).

These authorities have a common thread. A moving violation takes place when the operator of a motor vehicle violates the state law or an ordinance substantially corresponding to state law while the vehicle is actually moving.

It is noted that Sec. 320a(1)(b) of the Michigan Vehicle Code requires the imposition of 6 points for conviction of "operating" a motor vehicle while under the influence of intoxicating liquor or a controlled substance, or both, in violation of Sec. 625(b) of the Michigan Vehicle Code, MCL 257.625(b); MSA 9.2325(2). The Michigan Supreme Court has held in People v Pomeroy (On Rehearing), 419 Mich 441; 355 NW2d 98 (1984), that a visibly impaired, but a sleeping person, could not be operating a motionless car in violation of Sec. 625(b), although had the person been awake he might be found to have such physical control as to support the conclusion that he was operating the car, even if it was motionless. Section 629e of the Michigan Vehicle Code, however, requires imposition of the $5.00 assessment for each "civil infraction determination for a moving violation" only. The Legislature did not call for a $5.00 assessment for a conviction for an operating violation.

It is my opinion, in answer to your second question, that for purposes of the $5.00 assessment required by Sec. 629e of the Michigan Vehicle Code, a "moving violation" takes place when the operator of a motor vehicle violates the state law or an ordinance substantially corresponding to state law while the vehicle is actually moving.

Your last question is:

In addition to the imposition of a $5.00 assessment for each civil infraction violation, by means of Sec. 629e, 1987 PA 154 added Sec. 629c to the Michigan Vehicle Code to provide, in pertinent part:

"Speed of the vehicle at the time of Minimum

the violation, in miles per hour Points Fine

------------------------------------ ------ -------

"56 to 60 0 $10.00

61 to 70 1 $20.00

71 to 80 2 $30.00

81 to 85 3 $40.00

86 or over 4 $50.00"

Consideration of any ex post facto implications of Secs. 629c and 629e of the Michigan Vehicle Code must await the initial analysis and determination whether the Legislature intended these provisions to have retrospective effect.

Statutes are prospective in their operation unless a contrary intent is expressly stated by the Legislature or is clearly evident from the context of the statute. Briggs v Campbell, Wyant & Cannon Foundry Co, 379 Mich 160, 164; 150 NW2d 752 (1979).

There is no express intent stated in 1987 PA 154 to make either Sec. 629c or Sec. 629e retroactive. There is nothing in the context of these sections or in any other provision of 1987 PA 154 stating the legislative intent to make these provisions retrospective in application.

Enacting Sec. 2 of 1987 PA 154 states that the amendatory act shall take effect upon expiration of 30 days after the date of its enactment. Moreover, a study of the legislative history of 1987 PA 154 confirms the manifest intent of the Legislature that the changes ordered in the maximum speed limit, point system, fines, and assessments be prospective in their operation. See Luttrell v Dep't of Corrections, 421 Mich 93, 103-104; 365 NW2d 74 (1984).

The House passed House Substitute (H-7) to 1987 SB 135 containing enacting Sec. 2 which provided that the amendatory act shall take effect upon expiration of 30 days after its enactment "except that section 629e, as added by this amendatory act, shall take immediate effect...." 1987 Journal of the House, No 86, p 2806. The Senate amended proposed enacting Sec. 2 of SB 135 as substituted by the House to eliminate the immediate effect provision for Sec. 629e. 1987 Journal of the Senate, No 81, p 2852-2853. The House concurred in the amendment. 1987 Journal of the House, No 88, p 2874.

The manifest intent of the Legislature was to make all the provisions of amendatory 1987 PA 154 effective 30 days after its enactment. None of its provisions may be given retrospective effect.

Because the Legislature did not intend that Secs. 629c and 629e of the Michigan Vehicle Code have retrospective effect, any discussion of the ex post facto implication of these sections is obviated.

It is my opinion, in answer to your last question, that the minimum fine and assessment provisions of Secs. 629c and 629e of the Michigan Vehicle Code, as added by 1987 PA 154, apply only to civil infraction determinations for violations which occurred on or after November 29, 1987.

Frank J. Kelley

Attorney General