Legislative Analysis
Phone: (517) 373-8080
PRELIMINARY ORAL FLUID ANALYSIS
http://www.house.mi.gov/hfa
House Bill 4701 (proposed substitute H-1)
Analysis available at
Sponsor: Rep. Gary Howell http://www.legislature.mi.gov
Committee: Judiciary
Complete to 1-24-22
SUMMARY:
House Bill 4701 would amend the Michigan Vehicle Code to include preliminary oral fluid
analyses in certain provisions that now apply to preliminary breath tests (PBTs); to allow a
preliminary oral fluid analysis to be performed by a peace officer instead of only by a certified
drug recognition expert; and to define the term “other bodily fluid” and add it to provisions
that now pertain to a commercial motor vehicle roadside PBT.
Currently, a peace officer may require a person to submit to a PBT if, among other things, the
officer has reasonable cause to believe that the person was operating a vehicle while his or her
ability to do so was affected by the consumption of alcohol or a controlled substance or that
the person was operating a commercial motor vehicle while his or her blood, breath, or urine
contained any measurable amount of alcohol or a controlled substance.
The bill would amend the provision concerning operating a commercial motor vehicle to also
apply it to alcohol or controlled substances contained in other bodily fluid. Similarly,
provisions that currently apply to a request by a peace officer to submit to a PBT or for penalties
for refusing a PBT also would apply to a request to submit to a preliminary oral fluid analysis.
Other bodily fluid would mean fluid from the human body capable of revealing the
presence of controlled substances or their metabolites, including oral fluid or saliva.
Preliminary oral fluid analysis would mean the on-site taking of a preliminary oral
fluid test, performed by a peace officer, from the oral fluid of a person for the purpose
of detecting the presence of a controlled substance, as that term is defined in section
7104 of the Public Health Code. [This is the definition currently in the law, except that
under current law the tests must be performed by a certified drug recognition expert.]
The following would apply to a preliminary oral fluid analysis administered under the bill:
• It could lead to an arrest based on the results of the analysis.
• The results would be admissible in a criminal prosecution for certain drunk or drugged
driving violations or in an administrative hearing for one or more of the following
purposes:
o To assist the court or hearing officer in a determining a challenge to the validity
of an arrest.
o As evidence of the presence or nonpresence of a controlled substance in the
defendant’s oral fluid if offered by the defendant to rebut testimony elicited on
cross-examination of a defense witness that a preliminary oral fluid analysis
showed the presence of a controlled substance that was not found to be present
when a chemical test of the defendant’s blood or urine was administered under
the act.
House Fiscal Agency Page 1 of 2
 o As evidence of the presence or nonpresence of a controlled substance in the
defendant’s oral fluid if offered by the prosecution to rebut testimony elicited
on cross-examination of a prosecution witness that a preliminary oral fluid
analysis showed no presence of a controlled substance that was found to be
present when a chemical test of the defendant’s blood or urine was
administered under the act.
• The person would remain subject to provisions of the act pertaining to chemical tests
and administrative hearings regarding chemical tests.
• A person who refused to submit to a preliminary oral fluid analysis would be
responsible for a civil infraction.
The bill would take effect 90 days after its enactment.
MCL 257.43b and 257.625a and proposed MCL 257.36d
FISCAL IMPACT:
The bill would likely result in an increase in the number of individuals found in violation and
subsequently convicted. Depending on the number of additional convictions and the specific
charges, House Bill 4701 would have an indeterminate fiscal impact on the state and on local
units of government. Violations could be either civil infractions, misdemeanors, or felonies,
depending on the circumstances.
The majority of revenue received from payment of fines for civil infractions would increase
funding for public and county law libraries. A small portion of the revenue would be deposited
into the state Justice System Fund, which supports various justice-related endeavors in the
judicial and legislative branches of government and the Departments of State Police,
Corrections, Health and Human Services, and Treasury.
New misdemeanor convictions would increase costs related to county jails and/or local
misdemeanor probation supervision. Costs of local incarceration in county jails and local
misdemeanor probation supervision, and how those costs are financed, vary by jurisdiction.
New felony convictions would result in increased costs related to state prisons and state
probation supervision. In fiscal year 2021, the average cost of prison incarceration in a state
facility was roughly $44,400 per prisoner, a figure that includes various fixed administrative
and operational costs. State costs for parole and felony probation supervision averaged about
$4,600 per supervised offender in the same year. Those costs are financed with state general
fund/general purpose revenue.
The fiscal impact on local court systems would depend on how provisions of the bill affected
court caseloads and related administrative costs. Any increase in penal fine revenue from
misdemeanor and felony convictions would increase funding for public and county law
libraries, which are the constitutionally designated recipients of those revenues.
Legislative Analyst: Susan Stutzky
Fiscal Analyst: Robin Risko
■ This analysis was prepared by nonpartisan House Fiscal Agency staff for use by House members in their
deliberations and does not constitute an official statement of legislative intent.
House Fiscal Agency HB 4701 (proposed H-1 substitute) Page 2 of 2


Statutes affected:
House Introduced Bill: 257.319