The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6824

December 1, 1994

CRIMINAL LAW:

Peace officer holding a person arrested for violating the new statutory prohibition on drinking and driving by persons under 21 years of age

A person arrested for violating the new statutory prohibition on drinking and driving by persons under 21 years of age, section 625(6) of the Michigan Vehicle Code as added by 1994 PA 211, MCL 257.625(6); MSA 9.2325(6), may be held by a peace officer under MCL 780.581(3); MSA 28.872(1)(3), until the person is in a safe condition to be released.

Colonel Michael D. Robinson

Michigan State Police

714 S. Harrison Road

East Lansing, MI 48823

You have asked whether a person arrested for violating the new statutory prohibition on drinking and driving by persons under 21 years of age, section 625(6) of the Michigan Vehicle Code as added by 1994 PA 211, MCL 257.625(6); MSA 9.2325(6), may be held by a peace officer under MCL 780.581(3); MSA 28.872(1)(3), until the person is in a safe condition to be released.

The new statutory prohibition on drinking and driving by persons under 21, section 625(6) of the Michigan Vehicle Code, provides:

A person who is less than 21 years of age, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person has any bodily alcohol content. As used in this subsection, "any bodily alcohol content" means either of the following:

(a) A blood alcohol content of not less than 0.02% or more than 0.07% by weight of alcohol.

(b) Any presence of alcohol within a person's body resulting from the consumption of intoxicating liquor, other than consumption of intoxicating liquor as a part of a generally recognized religious service or ceremony.

A violation of this statute is a misdemeanor punishable by community service and/or a fine. Imprisonment is not part of the punishment. MCL 257.625(10); MSA 9.2325(10).

MCL 780.581; MSA 28.872(1), which deals with the release of persons arrested without a warrant for a misdemeanor, provides, in pertinent part:

(1) If a person is arrested without a warrant for a misdemeanor ... and the misdemeanor ... is punishable by imprisonment for not more than 1 year, or by a fine, or both, the officer making the arrest shall take, without unnecessary delay, the person arrested before the most convenient magistrate of the county in which the offense was committed to answer to the complaint.

(3) If, in the opinion of the arresting officer or department, the arrested person is under the influence of intoxicating liquor or a controlled substance, or a combination of intoxicating liquor and a controlled substance, ... or it is otherwise unsafe to release him or her, the arrested person shall be held ... until he or she is in a proper condition to be released, or until the next session of court. [ Emphasis added.]

The above-quoted provision also applies where a person is arrested with a warrant for a misdemeanor. MCL 780.582; MSA 28.872(2).

Violation of section 625(6) of the Michigan Vehicle Code is a misdemeanor punishable by a fine and/or community service. Consequently, the provisions of the statutes cited above for the processing of persons arrested for misdemeanors apply. Under MCL 780.581(1); MSA 28.872(1)(1), the person arrested must be taken before a magistrate if one is available. Moreover, subsection (3) of the same statute authorizes a peace officer, when the arrested person is under the influence of liquor or drugs or it is otherwise unsafe to release that person, to hold the person until it is safe to release that person. This authority to hold a person for safety reasons is not dependent on the misdemeanor charge permitting some length of imprisonment as punishment. Rather, it is dependent on the condition of the person arrested as evaluated and determined by the arresting officer or department.

It is my opinion, therefore, that a person arrested for violating the new statutory prohibition on drinking and driving by persons under 21 years of age, section 625(6) of the Michigan Vehicle Code as added by 1994 PA 211, MCL 257.625(6); MSA 9.2325(6), may be held by a peace officer under MCL 780.581(3); MSA 28.872(1)(3), until the person is in a safe condition to be released.

Frank J. Kelley

Attorney General