Drunk Driving Defense

Substantive Offenses

The key offenses and provisions pertaining to drunk driving are:

• Operating while intoxicated (OWI). The prosecution must prove that the defendant was under the influence of alcoholic liquor, a controlled substance, or both, and that as a result of the drinking or drugs, he or she was substantially deprived of normal control or clarity of mind and was unable to drive normally
  
• Unlawful blood alcohol level (UBAL) or per se violation, is defined as operating a vehicle on a highway or other place open to the public with an alcohol content of .08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine
  
• Operating while visibly impaired (OWVI). The prosecution must prove that the ingestion of alcohol, controlled substances, or both reduced the defendant’s ability to operate a vehicle on a highway or other place open to the general public or generally accessible to motor vehicles. The defendant’s ability must be so reduced that he or she drove or operated with less ability than would an ordinary, careful, and prudent driver. This weakening or reduction of the ability to drive must be visible to an ordinary, observant person
  
• Drunk driving causing death, or death caused by an OWI, OVI, OWPCS or UBAL offense while operating a motor vehicle on a highway or other place open to the public. Failure to yield the right-of-way to an emergency vehicle resulting in the death of a police officer, firefighter, or other emergency response personnel is one of the “death caused by” offenses
  
• Drunk driving causing serious body impairment or serious impairment of a body function caused by OWI, OVI, OWPCS, or UBAL
  
• Minor with a blood alcohol content (minor BAC) (also known as “zero tolerance”). It is a misdemeanor for a person under age 21 to operate a motor vehicle on a highway or other place open to the general public or generally accessible to motor vehicles if that person has any bodily alcohol content. Any bodily alcohol content is defined as an alcohol content of not less than 0.02 grams or more than 0.07 grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or any presence of alcohol within a person’s body, other than what was consumed as part of a generally recognized religious service or ceremony
  
• Child endangerment. It is an additional misdemeanor to drive drunk, impaired, or to be a minor with a BAC or with a controlled substance in the body while a passenger less than 16 years of age is in the vehicle
  
• Operating with presence of controlled substances (OWPCS). It is a misdemeanor to operate a vehicle if a person has any amount of a controlled substance in his or her body. It does not require impairment of function or diminished ability to drive
  
• Allowing an intoxicated person to drive. It is a misdemeanor for the owner of a vehicle to knowingly allow a person who is intoxicated or impaired to operate the vehicle. It is a felony to allow an intoxicated person to drive who seriously injures or kills someone

Per Se or UBAL Violation

• Operating a vehicle with an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine is a crime in itself, regardless of the effect of the ingested substances on the person charged

Misdemeanor or Felony

• A defendant can be charged with either a misdemeanor or felony. If the offense is a first offense, meaning the defendant has never been convicted of a section 625 offense in his or her lifetime and there is no death or serious injury involved, it is a misdemeanor. A first offender can be charged with a felony if he or she is involved in an accident and someone is killed or seriously injured. All local ordinance charges substantially corresponding to charges are misdemeanors. A defendant who has a prior conviction within 7 years of the date of arrest can be charged with a felony if he or she is charged with “child endangerment”, unless the driver is under 21 and charged with minor BAC, in which case it is still a misdemeanor

Note that the legislature has changed the requirement that three offenses have to occur within 10 years to constitute a felony. Effective January 3, 2007, a person can be charged with a felony if he or she has two or more prior convictions.

Penalties

• For a list of criminal and licensing penalties for the major drunk driving offenses prepared by the Michigan Department of State’s Driver Assessment and Appeal Division (DAAD), see attached exhibit

Vehicle Immobilization

• Any vehicle a defendant is driving when he or she is arrested for drunk driving has the potential of being immobilized on conviction. For a first offense, the immobilization up to 180 days is discretionary with the court. For a second offense, immobilization between 90 and 180 days is mandatory. For a third or subsequent offense, immobilization between one and three years is mandatory

Vehicle Forfeiture

• On a person’s conviction for certain drunk driving offenses, the court may order, as part of the person’s sentence, forfeiture of the vehicle used in the offense (if the vehicle is owned in whole or in part by the defendant) or return of the vehicle to a lessor (if the vehicle involved in the offense is leased). The offenses covered are as follows:
  
• Second or subsequent OWI, UBAL, OWPCS, or OWVI
• OWI, UBAL, OWPCS, or OWVI causing death or serious impairment, first or repeat offense
• Child endangerment drunk driving, first or repeat offense, and
• Driving with a suspended or revoked license, causing death or serious impairment

DataMaster

• In Michigan, breath testing is conducted on the BAC Verifier DataMaster, an infrared testing device

Observation Period

• State rules require that the DataMaster operator observe the suspected drunk driver for 15 minutes before administering the breath test

Second Test

• The rules also require a second test, unless the person refuses to give the second sample or a substance is found in the person’s mouth that could interfere with the test result

Right to Refuse Test

• The individual has an absolute right to refuse to take a DataMaster test. In that case, no test will be given without a court order. However, the person then faces having their license confiscated and possibly suspended for up to two years for refusing to take the test

Blood and Urine Testing

• Under certain conditions, the police may request that the suspect submit to a blood or urine sample instead of a breath test

Preliminary Breath Tests

• Pursuant to the drunk driving laws, a police officer who has reasonable cause to believe that a person’s ability to operate a vehicle was affected by the consumption of alcoholic liquor may require the person to submit to a preliminary breath test (PBT). Like the results of field sobriety tests, the results of a PBT may provide probable cause to arrest the defendant, or probable cause to obtain a search warrant for blood alcohol testing. The PBT cannot be admitted into the trial in the case in chief

License Sanctions

• An arresting officer must confiscate the license of a driver who allegedly either (1) refuses a request for a chemical test at the time of the arrest or (2) took a chemical test that was offered by the officer or performed pursuant to a court order that reveals an unlawful alcohol content. The officer then issues the driver a temporary driving permit. The license is destroyed if the evidence shows an alcohol level above the legal limit

Revocation and denial are required for two convictions of any of the crimes or three convictions or one conviction for minor BAC and any combination of two of the above convictions within 10 years. Restricted driving privileges will be given only to those who do not have any convictions within the statutory period.

This means that a plea reduction to a first offense will not prevent revocation where there is a prior offense in the previous seven years.

First Time Offenders

• The Secretary of State must suspend a person’s license for a violation as follows:
  
• OWI/OWPCS/UBAL violations: 180 days if the person has no prior convictions within seven years. The Secretary of State may issue a restricted license during all or a specified portion of the suspension, except during the first 30 days of suspension
• OWVI violations: 90 days if the person has no prior convictions within seven years. The Secretary of State may issue a restricted license during all or a specified portion of the suspension
• Minor BAC: 30 days if the person has no prior convictions within seven years. The Secretary of State may issue the person a restricted license during all or a specified portion of the suspension. The license must be suspended for 90 days for a minor BAC violation if the person has one or more prior convictions within seven years
• Child endangerment: 180 days if the person has no prior convictions within seven years. The Secretary of State may issue a restricted license after the first 90 days of suspension

Repeat Offenders

• All repeat offenders will have their driver’s license revoked or denied. Although under prior law, a repeat offender with one OWVI conviction was not subject to revocation and denial of a license until the third offense. The 1999 amendments provide that any combination of any of the following two convictions, or one conviction for minor BAC and one of the following convictions, within seven years, will result in revocation and denial: OWI/UBAL/OWPCS/OWVI; OWI/OWPCS/OWVI causing death or serious impairment of a body function; child endangerment; operating a CMV at .04 percent BAC or higher; or negligent homicide, manslaughter, or murder resulting from the operation of a vehicle, or an attempt to commit homicide, manslaughter, or murder

Restricted Licenses

• When the Secretary of State issues a restricted license, it has standard provisions of restriction. The restricted licensee can drive to and from the person’s home and work, in the course of work; to and from home and drug or alcohol rehabilitation programs; to and from home and probation or court ordered community service; to and from home and an educational institution in which the driver is enrolled; and to and from home and a place of regularly occurring medical treatment for the driver or a person in the same household or immediate family. The driver must carry proof of destination and hours. The restricted license does not allow for driving to take care of basic necessities like grocery shopping or driving children to school or school activities