Michigan Drinking and Driving Laws

I. Michigan's Drunk Diving Criminal Laws

A. The Criminal Offenses

There are now two distinct drunk driving offenses in Michigan: 1) Operating while intoxicated (OWI), and 2) operating while visibly impaired (OWVI). Of these two, OWI is the most serious offense. These are criminal offenses, therefore, to successfully prosecute an OWI case, the Prosecuting Attorney or City Attorney must prove beyond a reasonable doubt that the drunk driver was a) operating a motor vehicle, b) while under the influence of alcohol, controlled substances or both, and c) alcohol materially or substantially affected operating the motor vehicle.

Or,
a) a drunk driver's bodily alcohol content (BAC) was greater than .08%, b) while he was operating his motor vehicle. This method is generally easier to prove to gain a conviction.

OWVI is the easiest of the three to prove. Here, the Prosecutor or City Attorney must prove, again beyond a reasonable doubt, that the drunk driver was a) operating a vehicle, b) while alcohol visibly weakened or reduced his ability to operate his motor vehicle.

These criminal offenses can apply to adults or minors. In Michigan, although we become adults at age 18, the liquor control laws define an adult as someone 21 years of age or older. So, Michigan enacted the "Zero Tolerance" law for people under the age of 21. Minors may not operate a motor vehicle with any bodily alcohol content. I have emphasized in each of the criminal offenses above that the burden of proof is "beyond a reasonable doubt." Burden of proof refers to the duty of a litigant to produce the necessary quality of evidence to succeed. "Beyond a reasonable doubt" is the highest such duty in all law suits, because criminal cases involve the deprivation of liberty. That burden is necessary to ensure as much as possible that the criminally accused are not convicted and incarcerated wrongly. It is said that it is better for 100 men go free than 1 man be wrongly convicted.

In any event, a conviction or plea of guilty of OWI, means a maximum sentence of up to $500.00 in fines plus the costs of prosecution, up to 93 days in jail and up to 45 days of community service. A second DUI, OWI or OWVI in Michigan increases the fines plus costs up to $1,000.00, and imprisonment up to 1 year in jail.

A conviction or guilty plea to OWVI will result in a maximum sentence up to $300.00 in fines plus costs, up to 93 days in jail and up to 45 days of community service.

A third conviction for drunk driving may result in a felony charge punishable by 1 to 5 years imprisonment and a fine of up to $5,000.00.

On top of the above, a convicted person's license will be suspended or revoked for varying lengths of time depending on the circumstances. For a conviction of OWI a license will be suspended for not less than 6 months and not more than 2 years, without restriction for the first 30 days. If the drunk driver has a prior conviction, the license may be revoked if the convictions are within a certain duration of each other. However, for a conviction of OWVI, the license will be suspended for 90 days, but a restricted license is available immediately. A restricted license will allow the convicted person to drive to, from and during work, to alcohol treatment, school, community service or probation. He or she must carry proof of destination and hours to show law enforcement.

One of the toughest sanctions next to time in jail is when the sentencing judge confiscates the vehicle the drunk driver operated. The vehicle does not have to belong to the operator-it can be anyone else's vehicle. It doesn't matter if the vehicle is necessary for the other members of the drunk driver's family.

In addition to the above financial sanctions, drunk driving is an expensive ordeal, which you think would deter hard-core, repeat offenders, but does not. For a first offense drunk driving, insurance will probably be voided or not renewed, forcing the driver into the high-risk pool of insurance companies. The high-risk insurance companies generally charge three times the normal insurance and for less coverage.

The judge must order the drunk driver in all alcohol related motor vehicle convictions to go through screening for alcohol and substance abuse. The judge must order rehabilitation as part of the sentence for a second offense. Both will be done at the drunk defendant's expense.

Anyone driving with his or her license suspended or revoked is also subject to license suspension or revocation for a similar period of the original suspension or revocation.

B. Calculating Bodily Alcohol Content (BAC)

Calculating the bodily alcohol content (BAC) is not an exact science. It is also an art in the hands of those collecting and testing bodily specimens for alcohol. A 12-ounce can of beer or shot of whiskey may result in a different BAC depending on a person's gender, race, height, weight, metabolic rate, and medical history, among other things

2003 Changes to Michigan's Drunk Driving Laws

OVERVIEW

In July of 2003, the Michigan legislature passed and the Governor signed into law two bills designed to bring Michigan into compliance with the National Highway Transportation Safety Administration’s requirement that all states adopt a blood-alcohol threshold of .08% for drunk driving offenses. Although the amendments make this change, they includes a number of other significant changes to the existing law. The following are some of the more significant changes.

OPERATING WHILE INTOXICATED

The legislation changes the name of the offense from Operating Under the Influence of Liquor to Operating While Intoxicated. That offense includes both operating with a blood-alcohol level of .08% or more, as well as operating while under the influence of alcohol, a controlled substance, or a combination of alcohol and a controlled substance.

OPERATING WHILE IMPAIRED

The legislation retains the offense of Operating While Visibly Impaired. However, there is no longer a blood-alcohol threshold used to prove OWVI.

PRESUMPTIONS GONE

Under the prior statue, a person was presumed OUIL if he or she had a BAC of .10% or greater; OWVI if he or she had a BAC of greater than .07% but less than .10%; and not impaired if he or she had a BAC of .07% or less. Those presumptions are gone from the new legislation. While it is unlawful to drive with a BAC of .08% or more, there is no longer a presumption that a person is not impaired with a BAC of .07% or less. Thus, it is possible for a prosecutor to charge impaired driving even if a person has a BAC level of .07% or less.

NEW OFFENSE OF DRIVING WITH ANY AMOUNT OF A CONTROLLED SUBSTANCE

Bound to be one of the most controversial aspects of the new legislation, the statute now includes the offense of Operating with Any Amount of a Schedule 1 Controlled Substance (opiates, opium derivatives, hallucinogens, marijuana, GHB, and ecstasy) or cocaine in the blood stream. This part of the new statute has nothing to do with keeping impaired drivers off the road since most of these drugs can be found in the blood stream days after they were taken while the impairment is usually gone in hours. In fact, with a hair test, it is possible to find these substances in a person’s body up to 90 days after the fact. Since the new statute prohibits a person from operating a vehicle if “the person has in his or her body any amount” of a controlled substance, this is presumably not limited to breath, blood or urine. The new offense is treated the same as Operating While Intoxicated in terms of jail time, fines, costs, community service, and licensing sanctions. 

IGNITION INTERLOCK DEVICES

The new statute allows the court to require the installation of an ignition interlock device as a condition of probation for both driving while intoxicated and driving with any amount of a controlled substance. Thus, while an offender may have only a six month license suspension from Secretary of State, the court can require the ignition interlock device installed throughout the term of probation (up to two years).

COURT CANNOT ALLOW PLEA TO ZERO TOLERANCE IF ORIGINALLY CHARGED WITH GREATER OFFENSE

The new legislation slightly changes the rules regarding pleas to zero-tolerance offenses. Where the old statute allowed the court to accept a reduced plea from another alcohol offense to a zero tolerance offense with agreement of the prosecutor, the new law only allows the court to dismiss the original charge on motion of the prosecuting attorney. Thus, reduced pleas to zero-tolerance offenses, while still possible, will be more cumbersome.

PRESUMPTION REGARDING BAC AT TIME OF DRIVING

The new statute slightly changes the presumption regarding a person’s blood-alcohol level at the time of the offense. The old law allowed, but did not require, the fact finder to presume that a person’s BAC at the time of testing was the same as it was at the time of driving. The new law makes that presumption mandatory. While the presumption—like any other legal presumption—may be overcome, it now appears to be the defendant’s burden to disprove the assumption by affirmative evidence.

IMPLIED CONSENT SUSPENSION LENGTHENED

The new law lengthens the time of implied consent suspensions to one year for a first implied consent refusal and five years for all subsequent implied consent refusals within a 7 year period.

MINOR TRANSPORTING ALCOHOL – IMPOUNDING OWNER’S VEHICLE

Within 30 days of a minor’s conviction for transporting alcohol in a motor vehicle, the arresting officer may make a complaint against the owner of the vehicle to show cause why the vehicle should not be impounded. If the court determines that the vehicle was being driven with the express or implied consent of the owner (whether or not the owner knew the minor was transporting alcohol), and if the court determines that the vehicle is not needed by the owner in the direct pursuit of the owner’s employment, the court may order the vehicle impounded for a minimum of 15 days and a maximum of 30 days.

CHANGES TO SENTENCING GUIDELINES OV-3 AND OV-18

The new law changes the sentence guidelines scoring to reflect the new lower .08% BAC threshold. Thus, OV-3 includes 50 points for death resulting from a drunk driving offense where the offender had a BAC of .08% or more. Similarly, OV 18 does away with the 5 points for a BAC of .07% or more but less than .10%, and folds all offenses with a BAC of .08% or more but less than .15% into the 10 point category.

EFFECTIVE DATE AND SUNSET PROVISION

The new statute takes effect September 30, 2003. For some reason, it includes a sunset provision, making the new .08% BAC threshold expire on October 1, 2013, at which time the BAC threshold reverts back to .10%. 

Web Links

 DataMaster Manufacturer - Visit the Web Page for the Maker of the Device Used to Test Your Breath in Michigan

Breath Testing (DataMaster) Administrative Rules - Review the full text of the rules that apply to breath intoxication evidence.

Blood/Urine Testing Administrative Rules - Review the full text of the rules that apply to blood and urine intoxication evidence.

Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. Please consult an attorney for individual advice regarding your own situation.

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