OWI Laws in Michigan

http://www.michigan.gov

Michigan Secretary of State – http://www.mi.gov/SOS

Michigan Supreme Court Order –

http://courts.michigan.gov/supremecourt/Resources/Administrative/2010-14_2012-09-19_formatted-order.pdf

Proposed Legislation Keeps Michigan's Drinking Driving Limit at .08In May 2012, the Michigan House of Representatives introduced a bill that would maintain .08 as Michigan's legal drinking limit. Currently, MCL 257.625 prohibits the operation of a motor vehicle with a blood alcohol content (BAC) of .08 or greater. MCL 257.625 further provides that beginning October 1, 2013, it will be illegal to operate a motor vehicle with a BAC of .10 or greater. HB 5665, sponsored by Representative Andrea LaFontaine, amends MCL 257.625 by maintaining the BAC limit at .08 instead of increasing the limit to .10 in 2013. The bill has not yet been passed by the Michigan House Representatives.

Read the bill here: http://www.legislature.mi.gov/(S(ylolxw55assqbf55kebjoyy4))/mileg.aspx?page=getobject&objectname=2012-HB-5665&query=on

Summary of the Michigan Drinking and Driving Statutes

ABBREVIATIONS: OWI; OUIL; UBAL; OWVI; PER SE; OUID

OWI – Operating While Intoxicated, the "drunk driving law". It can be proven in either of two ways: the driver was "operating under the influence of liquor" or the driver was operating with an unlawful body alcohol level. CJI2d 15.1. (All references to "CJI2d" are to the Criminal Jury Instructions, second edition.)

OUIL – Operating Under the Influence of Liquor, this looks at the quality of the driving. Requires that an operator's ability to operate a motor vehicle in a normal manner was "substantially lessened" as the result of drinking alcohol. CJI2d 15.3(2)

UBAL – Unlawful Body Alcohol Level, this looks at the amount of alcohol in a person's breath, blood, or urine. The defendant was operating the vehicle with a body alcohol level of 0.08 grams of alcohol or more per 100 milliliters of blood/210 of breath/67 milliliters of urine. CJI2d 15.3(1)

OWVI – Operating With Visibly Impaired, the defendant w as operating the vehicle with less ability than would an ordinary careful driver due to drinking alcohol. CJI2d 15.4

PER SE – A different way of referring to UBAL.

OUID – Operating under the Influence of Drugs, the defendant was operating the vehicle with less ability than would an ordinary careful driver due to the driver being under the influence of a controlled substance or a combination of alcohol and a controlled substance.

DRIVING OFFENSE STATUTES

1. Operating While the Influence of Alcohol, a controlled substance or combination of alcoholic liquor and a controlled substance. MCL 257.625(a).
2. Operating with an alcohol content of 0.08 grams or more. MCL 257.625(1)(b).
3. Operating while visibly impaired due to the consumption of alcoholic liquor, a controlled substance or a combination thereof. MCL 257.625(3).
4. Operating a vehicle with any amount of a controlled substance listed in Schedule 1, MCL 333.721(2) of the Public Health Code. MCL 257.625(8).
5. Operating a motor vehicle while intoxicated, impaired, or having any amount of a Section 1 controlled substance causing death. MCL 257.625(4)
6. Operating a motor vehicle while intoxicated, impaired, or having any amount of a Section 1 controlled substance causing serious impairment of a body function. MCL 257.625(5).
7. Operating a motor vehicle while under the age of 21 years with any body alcohol content (usually in excess of 0.02 grams) MCL 257.625(6).
8. Operating a motor vehicle while intoxicated, impaired, causing death while intoxicated, impaired, or with any controlled substance; or causing injury while intoxicated, impaired, or with any controlled substance and also while another person less than 16 years of age is occupying the vehicle. MCL 257.625(7).
9. Operating a snowmobile while under the influence, having an unlawful body alcohol level, or while impaired is prohibited by MCL 324.8127
10. Operating a vessel (boat) while under the influence, having an unlawful body alcohol level, or while impaired is prohibited by MCL 324.80176.

PENALTIES FOR DRIVING OFFENSES

DRINKING OFFENSES – DRIVER

Maximum

Jail Fine License Car

A. No injuries

1. Zero Tolerance

257.625(6)

-1st off N/A $250 30 day suspension N/A

(restricted immediately)

MCLA 257.319(8)

-2nd off 93 days $500 90 day suspension

2. CDL

a. 257.625m (.04)

-1st off 93 days $300 OPR – 90 day susp. permissive

immobilization

immediate rest. (less than 180 days)

CDL – 1 year

HAZ – 3 years

-2nd off

w/i 7 years 1 year $1000 OPR – 1 yr. rev. immobilization

CDL – 1 yr. rev. (90 days

to 180 days)

HAZ –

-3rd off

ever 1-5 years OPR – 5 yr. rev.or 30 days – CDL – life rev.

1 year & community HAZ –

service 60 days –

180 days

b. 257.625(1),(3),(4),(5),(6),(7) & .625m

-1st off CDL – 1 yr. rev.

-2nd off CDL – 10 yr. rev.

3. OWVI

257.625(3)

-1st off. 93 days $300 90 day susp immobilization permissible

immediate res. 257.904d

180 days if con. sub. <180 days)

-2nd off. (See OUIL 2nd)

-3rd off. (See OUIL 3rd)

4. OUIL/UBAL

-1st off 93 days $100/500 180 day susp immobilization

permissible

("hard" 30 days) 257.904d <180

days

-2nd off

w/i 7 years 5 days-1 yr $200/1000 revoked 1 year permissive

forfeiture

or or

community mandatory

service immobilization

(30 days-90 days) (24 days – 180

days)

-3rd off

Ever 1 yr.-5 yrs. $500/5000 revoked 5 years permissive

Or forfeiture

or

30 days – mandatory

1 yr. and com. immobilization

service (60 days (6 mos. to 3 years)

– 180 days)

Maximum

Jail Fine License Car

5. Child Endangerment

257.625(7)

-1st off. 1 year $1000 90 days permissible

forfeiture

immediate res. and

permissible

immobilization

<180 days

(257.625n, .904d)

-2nd off. 1-5 years $500/5000 1 year rev. permissive

forfeiture

or 30 days – and/or mandatory

1 year jail and immobilization

60-180 days (24 days – 180 days)

community service 257.904d

-3rd off. 1-5 years $500/5000 mandatory

immobilization

or 30 days – (6 mos. to 3

years)

1 year jail and

60-180 days

community service

B. Injuries

1. Serious Impairment

257.625(5)

-1st 5 years $1000/5000 License revoked forfeiture or

immobilization

permissible

-2nd off. Habitual Habitual License revoked mandatory immobilization

(24 – 180 days)

.904d(1)(b)

mandatory imm.

(6 mos – 3yrs)

-3rd off. Habitual Habitual License revoked mandatory

immobilization

(6 mos to 3

years).904d(1)(c)

2. Death

257.625(4)

-1st 15 years $2500/10000 License revoked permissible

immobilization

.904d(1)

-2nd off. Habitual Habitual License revoked mandatory

immobilization

(24 days to 180

days).904d(1)(b)

-3rd off. Habitual Habitual License revoked mandatory

immobilization

(6 mos. to 3

years) 904d(1)(c)

DRINKING OFFENSES – OWNER

Jail Fine License Car

A. No injuries

Allowing

OUIL/UBAL/OWVI

-1st off 93 days $100/500 .904d(1)

B. Injuries

1. Death 5 years $1500/10000 permissive

forfeiture

257.625n(1)

2. Serious Imp. 2 years $100/6000 permissive

forfeiture

257.625n(1)

DEFINITIONS

"Operating"- Operating means driving or having actual physical control of the vehicle. CJI2d 15.2. A person asleep behind the wheel of a motionless car is not operating the vehicle. People v Pomeroy, 419 Mich 441, 355 NW2d 98 (1984). However, a person who is unconscious behind the wheel with the car running and the transmission in drive, although foot is on the brake pedal "is operating".People v Wood.450 Mich 399, 538 NW2d 351 (1995). Even though the defendant is behind the wheel of a stationary car, a conviction is justified where there is "sufficient or direct circumstantial evidence" that the defendant operated the car while under the influence of liquor prior to discovery by the police. People v Schinella, 106 Mich App 213, 407NW2d 621 (1987); People v Smith, 164 Mich App 767, 417 NW2d 261 (1987); and People v Solmonson, 261 Mich App 657, 683 NW2d 761 (2004).

Public Place – A public place is a "place open to the public or generally accessible to motor vehicles". CJI2d 15.2 a shopping center parking lot and the pit area of a race track are both places that are "generally accessible to motor vehicles". People v Hawkins (on remand), 181 Mich App 393, 448 NW2d 858 (1989); People v Nickerson, 227 Mich App 434, 575 NW2d 804 (1998). See generallyPeople v Tracy,18 Mich App 529, 171 NW2d 562 (1969).

STATUTORY DRUNK DRIVING PRESUMPTIONS

None

IMPLIED CONSENT LAW

A driver is presumed to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance or both in the driver's breath, blood, or urine. MCL 257.625c

The person must be arrested for a State Law or a Local Ordinance substantially corresponding to the State Law. However, a person who has hemophilia, diabetes, or a condition requiring the use of an anticoagulant is not considered to have given consent to a blood draw.

CHEMICAL TEST RIGHTS

The arrested driver must be advised of the following:

1. if the driver takes the chemical test at the request of a peace officer, the driver has the right to demand that a person of his or her own choosing administer one of the chemical tests.

2. The results of the test are admissible in a judicial proceeding and will be considered with other admissible evidence in determining the driver's innocense or guilt.

3. The driver is responsible for obtaining a chemical analysis of the test sample.

4. If the officer's request is refused, a test shall not be given without a court order, but the officer may request one.

5. Refusing the request to take a test will result in the suspension of the driver's operator's license for a period of one year and the addition of 6 points to his or her driving record. MCL 257.625a(6).

REFUSAL OF CHEMICAL TESTING

1. PROCEDURE The peace officer shall immediately forward a written report to the Secretary of State; the driver must request, within 14 days, a hearing before the Secretary of State or the penalties will be imposed by default. MCL 257.625d(2), 257.625f(1).

2. WHAT STATE MUST SHOW: when a driver requests a hearing in front of the Secretary of State, the peace officer must establish that:

A. There was reasonable grounds to believe that the driver had committed one of the enumerated offenses,

B. The driver was placed under arrest for one of the enumerated offenses,

C. The driver was advised of his chemical test rights set forth in MCL 257.625a(6) and

D. The driver's refusal to submit to the test was unreasonable. MCL 257.625(f)(4)

Either party may be represented by an attorney.

3. PENALTIES;

A. The Secretary of State shall suspend the driver's license for a period of one year if this is a first implied consent suspension or if any prior implied consent suspension was more than 7 years prior. MCL 257.625f(7)(a)

B. A driver who has had a second implied consent suspension within 7 years will have the driver's license suspended for 2 years.

4. CIRCUIT COURT REVIEW:

A. A driver may have the suspension completely set aside if there has been a violation of the Constitution of the United States, the Constitution of the State of Michigan, or a Statute; if it is in excess of the Secretary of State's statutory authority or jurisdiction; if it is made upon unlawful procedure resulting in material prejudice; if it is not supported by competent material, and substantial evidence on the whole record; if it arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion; or if it affected by other substantial and material error of law. MCL 257.323(4).

B. A driver may be granted a restricted license by the Circuit Court if it is the driver's first implied consent suspension. MCL 257.323(3); 257.323c(1)

5. COURT USE OF REFUSAL: The court may give the following jury instruction, especially if requested: "evidence has been admitted in this case that the defendant refused to take a chemical test. If you find that the defendant did refuse, that evidence was admitted solely for the purpose of showing that a test was offered to the defendant. That evidence is not evidence of guilt." CJI2d 15.9.

BLOOD DRAW STATUTE

Only a license physician, or an individual operating under the delegation of a licensed physician who is acting in a medical environment may withdraw blood at a peace officer's request. MCL 257.625a(6)(c).

PLEA BARGAINING STATUTE

A person charged with operating while intoxicated, operating while impaired, operating with any amount of controlled substance, operating in violation of the above causing death, operating in violation of one of the above causing serious injury, or while a passenger under the age of 16 is not permitted to plead to being a person under the age of 21 and having alcohol content. MCL 257.625(16).

REFUSAL OF CHEMICAL TESTING

PROCEDURE

: The peace officer shall immediately forward a written report to the Secretary of State; the driver must request, within 14 days, a hearing before the Secretary of State or the penalties will be imposed by default.MCL 257.625d(2), 257.625f(1).

WHAT STATE MUST SHOW: when a driver requests a hearing in front of the Secretary of State, the peace officer must establish that:

There was reasonable grounds to believe that the driver had committed one of the enumerated offenses,

The driver was placed under arrest for one of the enumerated offenses,

The driver was advised of his chemical test rights set forth in MCL 257.625a(6) and

The driver's refusal to submit to the test was unreasonable.MCL 257.625(f)(4)

Either party may be represented by an attorney.

 

PENALTIES:

The Secretary of State shall suspend the driver's license for a period of one year if this is a first implied consent suspension or if any prior implied consent suspension was more than 7 years prior.MCL 257.625f(7)(a)

A driver who has had a second implied consent suspension within 7 years will have the driver's license suspended for 2 years.

CIRCUIT COURT REVIEW:

A driver may have the suspension completely set aside if there has been a violation of the Constitution of the United States, the Constitution of the State of Michigan, or a Statute; if it is in excess of the Secretary of State's statutory authority or jurisdiction; if it is made upon unlawful procedure resulting in material prejudice; if it is not supported by competent material, and substantial evidence on the whole record; if it arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion; or if it affected