The majority of Michigan Drinking and Driving prosecutions are for misdemeanor offenses. Under Michigan law, both first and second offense Drunk driving charges are misdemeanors. A third offense OWI charge is a felony. Drunk driving often involves mistaken judgment as opposed to criminal intent. Often a driver who has consumed beer, wine or liquor does not accurately asses the impact of the alcohol on their driving.
The best practice, of course, is to never get behind the wheel after drinking. However, the law in Michigan allows people to drink and drive, as long as they are not intoxicated, impaired or under the influence. This is where the mistake in judgment comes in. This is also where the need for a good OWI/DUI attorney comes in.
When police believe you are not fit to drive because of alcohol, they are going to arrest you. If you are placed under arrest, you should never resist. You should also avoid making statements about how much you have had to drink, or the period of time in which you were drinking. Call on of our attorneys at your first opportunity for guidance as to how we can help.
Kronzek & Cronkright has a team of well-qualified drunk driving attorneys with many years of experience and many successful results. We have defended these cases throughout Michigan and have many very satisfied clients. Contact us to find out what it is like to work with a team of attorneys and staff that treats you with dignity, listens carefully to your ideas and concerns, and has the technical knowledge to defend you.
Operating While Intoxicated, or OWI in Michigan
Operating While Intoxicated is the basic drunk driving offense in Michigan. Before amendments to the drunken driving laws in 2003, it was called Operating Under the Influence of Liquor (OUIL.) It is also referred to by some people as driving under the influence (DUI), or driving while intoxicated (DWI). This charge focuses on the operator’s driving ability when under the influence of alcohol, liquor, a controlled substance or other intoxicating substance or a combination of any of these.
The elements of an OWI charge must be proven by the prosecutor beyond a reasonable doubt to obtain a conviction. Successfully defending any of these elements will amount to a not guilty verdict. These elements are that the vehicle operator was:
- operating a motor vehicle [on a specific date and time];
- on a highway, or other place open to the public or generally accessible to motor vehicles;
- in the specific county or city; and
- either under the influence of alcohol, or with a bodily alcohol level of 0.08 grams or more per 100 milliliters of blood / 210 liters of breath / 67 milliliters of urine.
Knowing the elements of the crime is important, but knowing how to mount a defense is vital. Many criminal defense attorneys believe that it is nearly impossible to defend a drunk driving case. You do not want to be defended by a lawyer with no clue how to defend you. Our attorneys are well trained and experienced. Our mission is to leave no stone unturned in finding a valid defense for our clients.
Michigan Definition of Under the Influence
“Under the influence of alcohol” has a specific meaning. In simplified language, we look at whether the driver could operate a vehicle in a normal manner. If the answer is no, and the reason is alcohol or drugs, he is under the influence. This is one of the ways that the prosecutor attempts to prove you are guilty of the charge.
Typically, during a trial the officer would testify about how you were driving, whether there was an accident, whether you were at fault in an accident, etc. He or she would also talk about whether you slurred your words, whether your eyes were bloodshot, and how you did on field sobriety tests like the heel-to-toe walk or the one leg stand or the horizontal gaze nystagmus tests. Amongst our attorneys, we maintain a high degree of specialized training on various aspects of drinking and driving behaviors. This includes training in field sobriety testing and chemical testing of blood and breath alcohol levels.
Unlawful Bodily Alcohol Level, or UBAL
The UBAL approach is the alternate manner of proving an OWI charge. Michigan’s current legal limit for bodily alcohol is 0.08 grams or more per 100 milliliters of blood / 210 liters of breath / 67 milliliters of urine. A UBAL charge focuses solely on the bodily alcohol level of the driver at the time of vehicle operation, whether or not the alcohol content affected the defendant’s ability to operate a motor vehicle.
Obviously, this requires a chemical test of some kind. In Michigan, police departments generally have a datamaster testing machine at the jail that they ask arrestees to blow into. This measures the alcohol in the breath. It is also common for an officer to obtain consent or a search warrant and draw blood. Using either method, the body’s alcohol level can be measured.
In our practice, we routinely challenge the accuracy of chemical tests. It is surprising how often police fail to follow procedures regarding the regular maintenance and use of the datamaster machine. Our attorneys are extensively trained in analyzing the problems with these chemical tests.
Penalties for a 1st offense misdemeanor OWI conviction
With no prior violations, the consequences imposed by the judge after a conviction are 1 or more of the following: a $100-$500 fine; up to 93 days in jail; or up to 360 hours of community service. There are also sanctions imposed by the Secretary of State (SOS). Specifically there is a 180 day license suspension, with a restricted license available after 30 days; 6 points on that person’s driving record; and a $1,000.00 annual driver responsibility fee for 2 consecutive years.
The court also can order that your car be equipped with an ignition interlock system. There is no plate confiscation, no denial of registration, and no vehicle forfeiture. Vehicle immobilization by the court is allowed for up to 180 days, but not required.
What is the Superdrunk Law in Michigan?
A High BAC, or Superdrunk, first offense is an OWI charge where the defendant is found with 0.17 grams or more per 100 milliliters of blood / 210 liters of breath / 67 milliliters of urine. As you can see, this is considerably more alcohol than the normal legal limit. The offense is still a misdemeanor, but carries increased penalties. A judge can give up to 180 jays of jail, and a $200 to $700 fine, and installation and maintenance of an ignition interlock system. The license sanction is a 1 year license suspension with a restricted license available after 45 days.
Operating While Visibly Impaired, or OWVI.
Operating While Visibly Impaired is a lesser-included offense of OWI and is proven by evidence showing the person was:
- operating a motor vehicle, car, truck, snowmobile, SUV or off-road vehicle;
- on a road or where vehicles are free to travel;
- due to the use of alcohol or a controlled substance the driver had less ability than an ordinary careful driver.
Penalties for a 1st offense misdemeanor OWVI conviction
If the driver has no previous drunk driving convictions, the sentence can include 1 or more of the following: not more than a $300 fine; up to 93 days in jail; or up to 360 hours of community service. Vehicle immobilization by the court is allowed for up to 180 days, but not required.
In addition, the Michigan Secretary of State (SOS) will assess a 90 day restricted license; 4 points on that person’s driving record; and a $500.00 annual driver responsibility fee for 2 consecutive years. There is no plate confiscation, no denial of registration, and no vehicle forfeiture.
What is considered a first offense drunk driving charge in Michigan?
The term “first offense” is a term of art in drunk driving law, as it can refer to either a true first drunk driving offense, or a second or subsequent offense committed 7 or more years after a prior offense, which is only chargeable as a 93-day misdemeanor.
Penalties for a 2nd offense misdemeanor OWI in Michigan
If you have a high BAC, OWI, or OWVI conviction, with any similar conviction within the last 7 years, the court’s sentence can include a $200-$1,000 fine and 1 or more of the following: 5 days to 1 year in jail; or 30 to 90 hours of community service. The court can order an ignition interlock system.
Second offense sanctions imposed by the Secretary of State (SOS) are a minimum 1 year license revocation/denial; 6 points on that person’s driving record; and a $1,000.00 annual driver responsibility fee for 2 consecutive years. Plate confiscation is required, however, there is no denial of registration. Vehicle forfeiture by the court is allowed but not required. Vehicle immobilization by the court is required for 90 to 180 days, unless there is vehicle forfeiture.
Penalties for a 3rd offense felony OWI, High BAC or OWVI conviction in Michigan
Generally, the penalty for a third offense (or more) is up to five years in prison. For a more detailed look at felony drunk driving issues, click here.
Michigan Drugged Driving Law and Penalties
Michigan law criminalizes operation of a vehicle if the driver is under the influence of a controlled substance, or other intoxicating substance, or a combination of a controlled substance, or other intoxicating substance. The basic drugged driving offense is Operating While Intoxicated by Drugs, or OWID. This offense requires proof that the driver was intoxicated with drugs by demonstrating that the defendant’s ability to operate a motor vehicle in a normal manner was substantially lessened.
The charge of OWID differs from the charges of OWI and OWVI, however, in that there are no legal limits for any controlled substances in Michigan similar to the 0.08 legal alcohol limit. An OWID charge, therefore, can actually be an easier charge to defend against because is no evidence of test results over any legal limit. The prosecutor in this instance has to prove that the driver was under the influence.
Registration of the driver as a patient under the Michigan Medical Marijuana Act (MMMA), MCL 333.26421 et seq., does NOT protect an operator from prosecution for OWID if: a) the state can prove the presence of THC in the driver; and b) the driver’s ability to operate a motor vehicle in a normal manner was substantially lessened. People v. Koon, No. 145259 (Mich. May 21, 2013).
Operating With the Presence of a Controlled Substance in Michigan
A second drugged driving offense is the charge of Operating With the Presence of a Controlled Substance, or OWPCS. MCL 257.625(8) states that “ [a] person, 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 in his or her body any amount of a controlled substance listed in schedule 1 under section 7212 of the public health code, 1978 PA 368, MCL 333.7212, or a rule promulgated under that section, or of a controlled substance described in section 7214(a)(iv) of the public health code, 1978 PA 368, MCL 333.7214.”
This offense is similar to a UBAL drunk driving charge in that the prosecutor only has to prove the presence of the prohibited substance in the driver, and not intoxication. In many cases, this is proven by: a) answers to police officer roadside questions admitting the recent use of a controlled substance; and b) blood analysis results.
Registration of the driver as a patient under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., DOES protect an operator from prosecution for OWPCS if the state can only prove THC consumption and cannot prove the driver’s ability to operate a motor vehicle in a normal manner was substantially lessened. People v. Koon, No. 145259 (Mich. May 21, 2013).
Our Approach to Defending a Drug or Alcohol Driving Case
In the first place, we will actually defend you. This sounds like something every attorney could say, but it is really not. We have seen a steady decline in the ability of defense attorneys to defend drunk driving cases as the legislature has consistently made it more difficult for those charged with one of these crimes. Today many attorneys will take your case and your money having already decided to look for a plea.
Every case stands on its own facts. There really are cases where a plea deal is the best outcome. Sadly, many attorneys holding themselves out as experts never seriously try to defend a client.
Our approach is a different. We believe in looking for and finding defenses for our clients. We actually examine the accuracy testing on Datamaster (breath test) machines. We look at when and how blood was drawn. We look at whether officers followed the laws and the administrative rules. We interview witnesses. We examine the in-car videos. We work with medical experts. We listen carefully to our clients and compare what they say to what the police wrote in the reports. Our approach is to leave no stone unturned.
Examining the evidence is only part of the job. We need to consider constitutional violations, police misconduct, untrue and inaccurate witness statements and “boiler plate” police reports. Together with our clients, we craft defenses that are designed to get better solutions to a difficult situation. You can begin that process now by contacting us. 1-866-766-5245