The Drinking and Driving Statute

This page is an overview of the statute governing Operating While Intoxicated (drinking and driving, DUI, etc) laws. MCL 257.625.

This article outlines the law in the order it was written, which is not necessarily the most straightforward way to read it.

Definition of Operating While Intoxicated

A person, regardless of driver’s license status, may not operate a vehicle while intoxicated on;

  • A highway,
  • A place open to the general public
  • An area designated for the parking of vehicles
  • An area generally accessible to motor vehicles

The phrase “operating while intoxicated” means any of the following:

  • The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance, or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.
  • The person has an alcohol content of .08 or more
  • The person has an alcohol content of .17 or more (What people call “super drunk driving”

Cannot Allow Another Person To Operate While Intoxicated

The owner of a vehicle or a person in charge or control of a vehicle shall not authorize or knowingly permit the vehicle to be operated by a person;

  • On a highway,
  • In a place open to the general public
  • In an area designated for the parking of vehicles
  • In an area generally accessible to motor vehicles

If that person is

  • Under the influence of influence of alcoholic liquor, a controlled substance, or other intoxicating substance, or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.
  • Has an alcohol content of .08 or more
  • Has an alcohol content of .17 or more
  • Visibly impaired by the use of alcohol, controlled substance, an intoxicating substance, or a combination of those three

Operating While Visibly Impaired

A person, regardless of driver’s license, may not operate a vehicle

  • On a highway,
  • In a place open to the general public
  • In an area designated for the parking of vehicles
  • In an area generally accessible to motor vehicles

if that person’s ability to operate a vehicle is visibly impaired due to the consumption of;

  • Alcohol
  • Controlled substance
  • Intoxicating substance, or
  • A combination of the above

Note: The offense of operating while visibly impaired is a lesser included offense of operating while intoxicated. This means a person charged with operating while intoxicated could plead guilty to or be convicted of operating while visibly impaired. MCL 257.625(3)

Penalties for Charges Resulting in Death

A person who commits one of these offenses and whose operation results in the death of another person is guilty of a felony, punishable by;

  • Up to 15 years in prison
  • A fine of $2,5000.00 – $10,000.00, or
  • Both of the above
  • Vehicle forfeiture or immoblization MCL 257.625n

A person who operates while intoxicated or impaired resulting in a person’s death, and has

  • A blood alcohol content of .17 or over, and
  • A prior conviction within 7 years,

is guilty of a felony, punishable by;

  • Up to 20 years in prison
  • A fine of $2,500.00 – $10,000.00, or
  • Both of the above
  • Vehicle forfeiture or immobilization

A person who operates while intoxicated or impaired in the manner prohibited in the Failure to Yield to An Emregency Vehicle Statute, (MCL 257.653a), resulting in the death of a;

  • Police officer,
  • Firefighter, or
  • Other emergency vehicle response personnel,

is guilty of a felony, punishable by;

  • Up to 20 years in prison
  • A $2,500.00 – $10,000.00 fine, or
  • Both of the above
  • Vehicle forfeiture or immobilization

Note: It does not matter whether the person was charged with failure to yield

Penalties for Charges Resulting in Serious Impairment of a Body Function

A person who operates while intoxicated or impaired and who operation results in the serious impairment of a body function of another person, is guilty of a felony, punishable by;

  • Up to 5 years in prison
  • $1,000.00 – $5,000.00 fine
  • Vehicle forfeiture or immobilization

If the violation occurs while the person;

  • Had a blood alcohol content of .17 or above, and
  • Had a prior conviction within 7 years

the person is guilty of a felony, punishable by;

  • Up to 10 years in prison
  • $1,000.00 – $5,000.00 fine, or
  • Both of the above
  • Vehicle forfeiture or immobilization

Under 21 Drinking and Driving

A person shall not operate a vehicle, regardless of driver’s license status;

  • On a highway,
  • In a place open to the general public
  • In an area designated for the parking of vehicles
  • In an area generally accessible to motor vehicles

With

  • A blood alcohol content of .02 or above
  • Any presence of alcohol within the body from the consumption of liquor not in a religious ceremony. The defendant bears the burden of proof by a preponderance of the evidence for showing the alcohol was consumed at a religious ceremony.

Operating While Intoxicated/Impaired With A Person Under 16 Years of Age

A person may not operate a vehicle while intoxicated or impaired with someone in the car under 16 years of age. This is referred to as child endangerment

A first offense child endangerment is a misdemeanor, punishable by;

  • Minimum 5 days in jail up to 1 year in jail, (no less than 48 hours consecutively)
  • $200.00 fine – $1,000.00,
  • 30 to 90 days of community service

A second offense child endangerment offense will be a felony if the offense occurs within 7 years of a prior conviction, or after two other convictions, regardless of the number of years that have passed, punishable by;

  • Minimum 30 days in jail or minimum one year in prison, (no less than 48 hours consecutively),
  • 60 – 180 days of community service
  • $200.00 – $1000.00 fine

Child Endangerment With Operator Under 21

A person under 21 who operates a vehicle while impaired or intoxicated is guilty of a misdemeanor, punishable, by;

  • Up to 93 days imprisonment,
  • $500.00 fine, or
  • 60 days of community service.

A person under 21 who is operates/impaired with a passenger 16 or under, and has a prior conviction within 7 years of the offense, or after 2 or more convictions, regardless of the number of years that have passed, has committed a misdemeanor, punishable by;

  • Minimum 5 days in jail up to 1 year in jail, (no less than 48 hours consecutively)
  • $200.00 fine – $1,000.00,
  • 30 to 90 days of community service

Operating With The Presence of a Controlled Substance

A person, whether licensed or not, shall not operate a vehicle upon a highway, a place open to the general public, a parking lot, or a place generally accessible to motor vehicles, if the person has any amount of a schedule I controlled substance in his or her body or any amount of cocaine.

Penalties

These are the following penalties for both operating while intoxicated and operating with the presence of a controlled substance:

First-offense

  • Up to 93 days in jail
  • A $100.00 – $500.00 fine
  • Up to 360 hours community service

Second offense operating with the presence of a controlled substance. A second offense is defined as a violation that occurs within 7 years of a prior conviction for a drinking or drugged driving crime

  • Minimum 5 days in jail up to 1 year (not less than 48 hours consecutively)
  • $200.00 – $1,000.00
  • Community service for 30 – 60 days

Third-offense operating while intoxicated or operating with the presence of a controlled substance is a is a felony, regardless of the number of years that have passed between offense dates

  • Minimum 30 days in jail or 1 year in prison
  • $500.00.00 – $5,000.00
  • 60 – 180 days of community service
  • Vehicle forfeiture or immobilization

Penalties for Allowing a Person to Operate a Vehicle While Intoxicated, Impaired, or With the Presence of a Controlled Substance

A standard offense is a misdemeanor, punishable by;

  • Up to 93 days in jail
  • $100.00 – $500.00, or both.

A person who allows another intoxicated/impaired person to operate their his or her vehicle resulting in the death of another person is guilty of a felony, punishable by

  • Up to 5 years in prison
  • $1,500.00 – $5,000.00 fine
  • Or both

A person who allow a person who is intoxicated or impaired and that operation results in another person receiving serious impairment of a bodily function is guilty of a felony, punishable by

  • Up to 2 years in prison
  • A $1,000.00 – $5,000.00 fine
  • Or both

Operating While Visibly Impaired Penalties

First-offense

  • Up to 93 days in jail
  • $300.00 fine
  • Up to 360 hours community service

A second-offense operating while visibly impaired is where a violation occurs within 7 years of a prior conviction,

  • Minimum 5 days in jail up to 1 year (not less than 48 hours consecutively)
  • $200.00 – $1,000.00
  • Community service for 30 – 60 days

Third-offense operating while visibly impaired is a felony, regardless of the number of years that have passed between offense dates

  • Minimum 30 days in jail or 1 year in prison
  • $500.00.00 – $5,000.00
  • 60 – 180 days of community service
  • Vehicle forfeiture or immobilization

Penalties for OWI For Person Under 21

First-offense

A first-offense OWI by a person under 21 is a misdemeanor, punishable by;

  • $250 fine
  • 260 hours of community service
  • There is no jail time possible for this offense

Second-offense, a violation within 7 years of a prior conviction

  • Up to 93 days in jail
  • $500 fine
  • 60 days of community service

The Court can order the defendant to pay the costs of prosecution. This is very common now.

Community service – a defendant may not receive compensation and must pay supervision costs.

Enhanced Sentences

Prosecutor must give notice on the complaint or information that it intends to base an enhance the sentence

Plea Bargains to Under 21 OWIs

A person cannot plea to Under 21 OWI if the person was originally charged with an over 21 OWI. To make such a plea deal work, the prosecutor would have to dismiss the complain and reissue as an Under 21 OWI, at which time a defendant could take responsibility.

Prior Convictions

There are several ways a prior conviction could be proven. The prior conviction would be used to enhance to a second-offense or a felony third-offense OWI.

  • A copy of a judgment of conviction
  • An abstract of conviction
  • A transcript of a prior trial or a plea-taking or sentencing proceeding
  • A copy of a court register of actions
  • A copy of the defendant’s driving record
  • Information contained in a presentence report
  • An admission by the defendant

Special Verdicts

Except in the situation described in the paragraph below the next paragraph, if a person charged with operating a vehicle while under the influence of a controlled substance or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance in violation of the operating while intoxicated law, the court shall require the jury to return a special verdict form of a written finding or, if the court convicts the person without a jury or accepts a plea of guilty or no contest, the court must make a finding as to whether the person was under the influence of a controlled substance or other intoxicating substance or a combination of an alcoholic liquor, a controlled substance, or other intoxicating substance at the time of violation.

Except otherwise provided in the paragraph immediately below this paragraph, if a person charged with operating a vehicle while his or her ability to operate the vehicle was visibly impaired due consumption of a controlled substance or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance in violation of the operating while visibly impaired law, the court shall require the jury to return a special verdict in the form of a written finding or, if the court convicts the person without a jury or accepts a plea of guilty or not contest, the court shall make a finding as to whether, due to the consumption of a controlled substance or a combination of alcoholic liquor, controlled substance, or other intoxicating substance, the person’s ability to operate a motor vehicle was visibly impaired t the time of violation

A special verdict described in the above two paragraphs is not required if the jury is instructed to make a finding solely as to either of the following:

  • Whether the defendant was under the influence of a controlled substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance at the time of violation.
  • Whether the defendant was visibly impaired controlled substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance at the time of violation.

The reason for all these special verdicts is for the Secretary of State to enforce driver’s license sanctions.

If a jury or court finds guilty according to the above three paragraphs, that the defendant operated a motor vehicle under the influence of of or while impaired due to the consumption of a controlled substance, an alcoholic liquor, or other intoxicating substance, the court shall report the finding to the Secretary of State, on a form prescribed by the state administrator, forwarded to the department of state police that specific the penalties imposed by the court, including an term of imprisonment and any vehicle forfeiture or immobilization actions. (This is the process of abstracting a conviction).

These are public records held by the state police for at least 7 years.

Probation: The Court may order that a person convicted of a operating while intoxicated or operating with the presence of a controlled substance to use an ignition interlock device, and the person shall not operate the vehicle without an interlock device.

Definitions

Every law has a section for definitions, so we all know what the legislature is taking about. Below is a list of the definitions:

Intoxicating substance is any substance, preparation, or a combination of a substance and preparations other than alcohol or a controlled substance, that is either of the following:

  • Recognized as a drug in any of the following publications or their supplements:
  • The official United States Pharmacopoeia
  • The official Homeopathic Pharmacopoeia of the United States
  • The official National Formulary
  • A substance, other than food, taken into a person’s body, including, but not limited to, vapors or fumes, that is used in a manner or for a purpose for which it was not intended, and that may result in a condition of intoxication. This refers to huffing, with glues and paints, etc.

Prior conviction means a conviction for any of the following, whether under a law of this state, a local ordinance substantially corresponding to a law of this state, a law of the United States substantially corresponding to a law of this state, or a law of another state substantially corresponding to a law of this state.

Also, with the exception for the charge of allowing a person to operate while intoxicated/impaired, any prior conviction can be used to enhance the potential sentence if that charge was a violation of a prior enactment of this law in which the defendant operated a vehicle while under the influence of intoxicating or alcoholic liquor or a controlled substance, or a combination of intoxicating or alcoholic liquor and a controlled substance, or while visibly impaired, or with an unlawful bodily alcohol content, as well as convictions for

  • MCL 257.625m
  • Former section MCL 257.625b
  • Negligent homicide, manslaughter, or murder resulting from the operation of a vehicle or an attempt to commit any of those crimes
  • Sections 601d or 626(3) or (4)

Only one conviction for OWI Under 21 can be used to enhance to a drinking and driving charge to a felony charge. In addition, if 2 or more convictions used in this section arose from the same transaction (incident), then only one of those convictions can be used to determine whether the person has a prior conviction

That’s the Law in a nutshell.

The Ever Expanding OWI Laws

The legislature has written the drinking and driving laws to be expansive as possible. Just look at the definition of operating while intoxicated. OWI can be defined as having a blood alcohol content of over .17, .08, or being under the influence of alcohol or drugs. Then there’s the added standard of operating while visibly impaired.

What do these definitions mean? These definitions mean that when you go to trial on an operating while intoxicated charge, we’re talking about challenging that your blood alcohol content was of over .o8, that you were not under the influence of alcohol, and that you were not visibly impaired by alcohol. The legislature made it expansive on purpose.

Also look at the statute for operating with the presence of a schedule 1 controlled substance. The law says “any amount” of the schedule 1 controlled substance. This means whether you are under the influence of the drug is irrelevant. Whether you took the drug yesterday or one hour before you drove is irrelevant. This is especially troubling for drugs like marijuana, which stay in your system for a very long time but really have a short time-frame for effects.

Then look at the definition of intoxicating substance. The legislature has made it so basically any substance under the sun can is included, subject to the discretion of the people who control those lists.

Is It Even Worth It To Go Trial?

With everything the legislature has done to stack the deck against us, you might wonder, do you even have a chance at challenging the case? You would not be blamed for asking that question. The deck is truly stacked against you. Nevertheless, the reality is that more of these cases really should go to trial. While the laws continually grow harsher, more prosecutor officer are reluctant to offer even the most simple deal.

The question becomes – why not take the case to trial? What do you have to lose if your only plea bargain option is not an option? Make the government prove their case against you. You might be pleasantly surprised when you find the government is not prepared to prove their case. Play tight defense, force a fumble, and then all of a sudden you’re on offense.

Trials should be the default option, not the option that only happens in less than 5% of cases! A trial is your constitutional right, a right that people fought and died for. A trial is not some mystical occurrence that only happens in Perry Mason reruns. A criminal defense attorney should be prepared to take more cases to trial. As Clarence Darrow said, “The only real lawyers are trial lawyers, and trial lawyers try cases to juries.”

What’s the Difference between Operating While Intoxicated or Impaired?

The law creates small differences in the penalties for operating while intoxicated v. operating while visibly impaired, with the lesser penalties coming with an impaired conviction. This creates an incentive for plea bargains to impaired to save those penalties. Are the differences all that great? It depends on how you look at it. You will save some money (fines, court costs, and driver responsibility fees) with an impaired plea, and you will also save a short license suspension and some points on your driver’s license. For some people that is a true incentive. Other people might shrug their shoulders and say what is the big deal. Your record will reflect a drinking and driving charge either way.

Is It Legal to Drink and Drive?

You might think the question is facetious but let me ask you, why do bars have parking lots? Despite everything that’s been written above, the act of drinking and driving is actually not illegal. You can drive after drinking so long as your blood alcohol level is under .08, you are not under the influence of alcohol, and you are not visibly impaired by alcohol. This means you could be convicted of a drinking and driving crime even if your blood alcohol level is under .08 if you are driving while under the influence of alcohol or are visibly impaired by alcohol.

Get in Touch with ArborYpsi Law at 734.883.9584

Call Sam Bernstein at 734.883.9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is an attorney in Ypsilanti and Ann Arbor practicing criminal defense.

ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.

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Our Practice

ArborYpsi Law practices criminal defense of individuals charged with crimes by the government. We represent people charged with OWI/DUI, disorderly conduct, drug use and possession, domestic assault, and assault and battery. We also represent people who receive traffic tickets.

Have you been charged with a criminal offense and would like to learn more? Call us at 734,883.9584 to discuss your case. We will explain what we will do as your attorney to help you in your case. You will receive a full explanation of the laws and court procedure. You will receive all the information necessary to make an informed decision on your case.

Our office is based in Ann Arbor, and we regularly practice in the 14A-1 District Court of Pittsfield Township, the 14A-2 District Court of Ypsilanti, and the 14B District Court of Ypsilanti Township. We also travel to other courts in Washtenaw County, Western Wayne County courts, such as Plymouth, Romulus, Westland, Livonia, and Detroit.

Being charged with a crime is one of the most stressful events in a person’s life, whether that crime is a felony or misdemeanor. You will not go through this alone. We are in your corner and in the middle of the ring for you. From the minute you hire us we will get to work. We will immediately work to get the discovery and submit Freedom of Information Acts requests. You will be given copies of everything, and if there are any videos we can sit down and watch those together.

Information and knowledge is important. Our clients do not walk into a courtroom without a full understanding of what could happen. (Unless we know the case is about to be dismissed, then let’s not waste anytime and get the case dismissed!) There may be a lot uncertainty about penalties, whether that is jail time, probation, driver’s license consequences, or others.

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“To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade and a hated, isolated and lonely person – few love a spokesman for the despised and the damned.” – Clarence Darrow, The Greatest Criminal Defense Lawyer of Them All.

Call 734.883.9584 to speak with an Ann Arbor Lawyer

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