[Update:  Judge Johnson in Montmorency County District Court ruled that the notice provided by the Michigan Secretary of State clearly did not prohibit operation of an ORV on a restricted license.  He did not reach the issue of whether it is a crime, rather, he ruled that the driver’s license restriction statute only limits operations as imposed by the restriction, and since no such notice was given in the actual correspondence from the Secretary of State that operation of an ORV was not allowed on a restricted license, the defendant was entitled to a dismissal.  In fact, the defendant reports that he actually went to the Secretary of State and they told him that he could operate an ORV on a restricted license.  If you are charged by an over-zealous prosecutor for operating an ORV on a restricted license, then call Coltrane & Nye at 989-821-1225 and ask for a free criminal consultation with Todd Nye.]

Recently, I had a case where my client was charged with operating an ORV on a restricted Michigan’s driver’s license.  My research shows that it appears that there is no law prohibiting operating an ORV on a restricted license.

The Motor Vehicle Code at MCL 257.312  provides in part:

….

(4) A person who violates a restriction imposed in a restricted license issued to that person is guilty of a misdemeanor. This subsection does not apply to a person who is at least 14 years of age and under 16 years of age.

….

Off Road Vehicles have a distinct and separate statutory code section, with particular definitions which provide in part:

….

(m) “Operate” means to ride in or on, and be in actual physical control of, the operation of an ORV.

(n) “Operator” means a person who operates or is in actual physical control of the operation of an ORV.

(o) “ORV” or “vehicle” means a motor-driven off-road recreation vehicle capable of cross-country travel without benefit of a road or trail, on or immediately over land, snow, ice, marsh, swampland, or other natural terrain. ORV or vehicle includes, but is not limited to, a multitrack or multiwheel drive vehicle, an ATV, a motorcycle or related 2-wheel, 3-wheel, 4-wheel, or 6-wheel vehicle, an amphibious machine, a ground effect air cushion vehicle, or other means of transportation deriving motive power from a source other than muscle or wind. ORV or vehicle does not include a registered snowmobile, a farm vehicle being used for farming, a vehicle used for military, fire, emergency, or law enforcement purposes, a vehicle owned and operated by a utility company or an oil or gas company when performing maintenance on its facilities or on property over which it has an
easement, a construction or logging vehicle used in performance of its common function, or a registered aircraft.

….

(t) “Roadway” means that portion of a highway improved, designated, or ordinarily used for vehicular travel. If a highway includes 2 or more separate roadways, the term roadway refers to a roadway separately, but not to all roadways collectively.

….

MCL § 324.81101

An ORV shall not be operated on a public highway or street, except as under several statutory exceptions, none of which require a driver’s license at all. MCL §324.81122

In fact, the Legislature specifically prohibits ORV operation when there is a suspended or revoked license, but not for a restricted license:

(1) If the operator’s or chauffeur’s license of a person who is a resident of this state is suspended or revoked by the secretary of state under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923, or if the driver license of a person who is a nonresident is suspended or revoked under the law of the state in which he or she resides, that person shall not operate an ORV under this part for the same period.

(2) A person who violates this section is guilty of a misdemeanor punishable as follows:

(a) For a first conviction, imprisonment for not more than 93 days or a fine of not more than $500.00, or both.

(b) For a second or subsequent conviction, imprisonment for not more than 180 days or a fine of not more than $1,000.00, or both.

MCL § 324.81140a

Historically, prosecutors have relied upon a legal concept known as para materia to argue that the Motor Vehicle Code and the Off Road Vehicle Code should be read together as one statute.  For example, in People v O’Neal, 198 Mich App 118 (1993), the Court of Appeals held that an ORV as a “motor vehicle” for purposes of the Motor Vehicle Code for a charge of operating a vehicle under the influence of intoxicating liquors contrary to the Motor Vehicle Code at MCL 257.625.

The Motor Vehicle Code defines a “motor vehicle” as: “Motor vehicle” means every vehicle that is self-propelled, but for purposes of chapter 4 of this act motor vehicle does not include industrial equipment such as a forklift, a front-end loader, or other construction equipment that is not subject to registration under this act. Motor vehicle does not include an electric patrol vehicle being operated in compliance with the electric patrol vehicle act. Motor vehicle does not include an electric personal assistive mobility device. MCL §257.33

Therefore, it seems obvious that a ORV is a “motor vehicle” under the Motor Vehicle Code such that it cannot be operated on a restricted license.

However, the concept of para materia has its limits.  “When there is a conflict between statutes that are read in para materia, the more recent and more specific statute controls over the older and more general statute.” People v. Buehler, 477 Mich. 18, 26 (2007)

It turned out that the Michigan Legislature amended the Off Road Vehicle Code in 1998 and 1999 making it illegal to operate an ORV while intoxicated and illegal to operate an ORV on a  revoked or suspended license.  Since the Michigan Legislature specifically amended the Off Road Vehicle Code as to revoked or suspended licenses, and clearly did not regulate restricted licenses, then the concept of para materia should not control and the courts should apply the Off Road Vehicle Code exactly as written, that is, there is no prohibition to operate an ORV on a restricted license.

Tags: , , , , , , , , , , , ,

Comments are closed.