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Differences Between Drunk Driving 1st, 2nd, & 3rd Offenses

Drunk Driving in Michigan and the Difference Between Drunk Driving First (1st), Second (2nd), and Third (3rd).

Drunk driving conceptual image with a hand holding some car keys and a glass of beer in the background. Experienced representation to challenge the evidence against you

Abstract: Drunk driving is a confusing area of law where revision after revision has been made. Adding to this confusion, Michigan has added levels of 1, 2, and 3 to the basic charge of driving while your blood alcohol (BAC) is over .08 or while visibly impaired (OWVI). In this article, I will discuss Michigan Law and the difference between drunk driving first, second, and third.

(1) Drunk Driving: Definition and the Effects of Prior Convictions

First, drunk driving in Michigan is determined by MCL 257.625 and defines driving drunk as having a BAC of .08 or higher, or as operating a motor vehicle while visibly impaired. The punishment that follows a drunk driving conviction depends on whether said conviction is a 1st, 2nd, or 3rd drunk driving charge. Keep in mind that minors cannot drink, and that if they are caught driving while under the influence, it is a civil infraction and the punishment varies by several factors. Also, under MCL 257.625(1)(b), the BAC limit is set to move up to .10 in Michigan in 2018.

In addition, super drunk driving in Michigan is defined as a BAC of .17 or higher. A person found to be “super drunk” will face harsh punishments under MCL 257.625(4)(b).

However, the consequences of drunk driving are not apparent from the surface alone. Consider that even a drunk driving first (1) can have long lasting effects on your record and on any future legal defenses. “Stacking” or “building” are concepts of having one offense be predicated on the existence of another. The aforementioned concepts are important to Michigan’s drivers because of 2006 amendments to the law, commonly known as Heidi’s Law.

Heidi’s Law removed the limited ten-year look-back period for enhanced charges on subsequent convictions for operating while intoxicated (OWI) [DUI], building to a felony charge. Therefore, taking a deal for DUI or OWI may severely affect you if you were to have another case, allowing the prosecutor to move an otherwise misdemeanor to a felony charge. Further, OWI/DUI charges never fall off your record.

(2) Elements of the Charge of Operating While Intoxicated (OWI or DUI):

In order to understand the charge of operating while under the influence (OWI) and how to challenge this charge, you must first understand the elements of the charge. These elements are:

  1. Operating a motor vehicle,
  2. On a highway or other place open to the general public, or generally accessible to motor vehicles,
  3. In the county of __________, city of _____________,
  4. While under the influence of alcohol and/or with an unlawful bodily alcohol level of .08 grams or more.

While at first the elements of drunk driving seem rather straight forward, as with most laws there is more to it than meets the eye. Therefore, discussed below is a better breakdown of each element.

(3) Definitions of the Elements for the Charge of OWI/DUI:

-Operating a Motor Vehicle:

Operating is defined by MCL 257.35A as “being in actual physical control of a vehicle,” whether or not that person is licensed to operate the vehicle. That is because Michigan defines an operator as “a person, other than a chauffeur, who…operates a motor vehicle or automated motor vehicle upon a highway or street.” MCL 257.36. Further, MCL 257.625(1) adds that operating a vehicle in any “other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles…” while intoxicated, is considered drunk driving.

Therefore, if you are sleeping in the front seat of your vehicle with the keys in the ignition in a parking lot or parked on the side of the road, you may still be considered to be drunk driving. Remember, that despite having your car in park, you would still be in “actual physical control of a vehicle” and therefore may be considered operating a vehicle in violation of the drunk driving code as spelled out in MCL 257.625.

The key to understanding whether or not the person was operating the vehicle at the time of arrest is determined by People v Wood, 450 Mich 399, 538 NW2d 351 (1995), wherein the Michigan Supreme Court noted that operating should be analyzed in relation to the dangers that the drunk driving statute seeks to prevent.  Therefore, the court put forth the standard that “once a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk.” Id. at 404-405.

In summary, merely running your car heater in an abandoned parking lot may not be considered drunk driving (See People v Burton, 252 Mich App 130, 132, 651 NW2d 143 (2002)), whereas, parking your car on the side of a highway or road may be considered drunk driving (See People v Smith, 164 Mich App 767, 417 NW2d 261 (1987)). Either way, it is important to look for key facts such as: proximity to a main roadway, was the car transmission in park, was the individual in the driver seat, etc.

-Motor Vehicle:

The definition for a motor vehicle is found in MCL 257.79 and includes “every device” which can transport a person along our roadways, except those moved exclusively by human power. Therefore, go-carts, cars, dune buggies, motorcycles, and even snowmobiles (which have a separate OWI statutory scheme found under MCL 324.82127 that mirrors MCL 257.625) are considered “motor vehicles’ for purposes of the law.

Operating on a Highway or Other Place Open to the General Public:

As discussed above under “operating” this element of drunk driving requires a careful analysis of where the driver was driving. While the statue is very broad, it still provides room for argumentation. For instance, “driving” in a pit area of a speedway may not be considered “a place open to the general public” and therefore exempt you from a charge of drunk driving (see People v Nickerson, 227 Mich. App. 434, 575 NW2d 804 (1998)). Similarly, driving in your backyard may not qualify either. However, being forced off the road onto a restricted zone may still allows for a conviction where there was a finding of initially driving on a “generally accessible road way” (see United States v Graef, 31 F3d 362 (6th Cir. 1994).

As discussed above, parking lots, trailer park property, mall property, etc is generally considered “open to the general public” and “generally accessible to motor vehicles” therefore, being caught drunk driving in these areas will likely result in a charge being brought.

The bottom line is that most if not many decisions as to “operating” are fact-specific and require careful analysis of all the facts before a conclusion can be drawn. Therefore, it is best to be safe rather than sorry when consuming alcohol and considering getting behind the wheel of a motorized vehicle.

(4) What Constitutes “Under the Influence?”

The drunk driving statute has been changed to allow two bases for charging OWI/DUI:

(1) Driving while “under the influence” [that the consumption of alcohol has caused a material and substantial effect on the Defendant’s ability to operate the vehicle]; or

(2) The Defendant operated a vehicle with an unlawful BAC of .08 or .17 or higher.

While “under the influence” focuses on the effect of alcohol or controlled substances on a driver and proof of that effect, BAC limits are set and require only an accurate measure of a Defendant’s BAC level. Further, one or both of these charges may be brought against a Defendant, however only one conviction will emerge.

While “under the influence” is a hard standard to understand, it is generally considered to be defined as a test that asks the jury to determine, whether because of intoxication from drugs or alcohol, a Defendant’s mental or physical condition was so significantly and materially affected that he or she was no longer able to operate a vehicle in a normal manner.

“Operating while visibly impaired” (OWVI) is a lesser included offense of OWI, but follows the same test as “under the influence” defining drunk driving as: Defendant, because of consuming drugs or alcohol, his or her ability to operate was so weakened or reduced that operation was with less care than that used by an ordinary, careful, and prudent driver. Said condition must be visible to an ordinary and observant person.

It is important for all drivers to know that MCL 257.625(1) does not limit the type of controlled substance, which may form the basis of an OWI/OWVI/DUI charge. Therefore even sleeping aids or other prescription drugs may result in a conviction if the standard for “visibly impaired” can be proven beyond a reasonable doubt. Therefore, it is important to read prescription drug warnings and other caution labels for indication of affecting your driving ability.

(5) Penalties for 1st 2nd and 3rd Drunk Driving:

Below is a chart of the penalties that a person may face as a result of being found guilty of drunk driving or driving while visibly impaired. Keep in mind that for simplicity sake, DUI/OWI refers to a conviction or arrest under MCL 257.625 for any intoxicating substance there listed. One can understand the general rule of stacking or enhancing that occurs in drunk driving charges by remembering “2 within 7” and “3 within a lifetime.”  Two within seven refers to the fact that an OWI second requires a previous charge within 7 years previous from the current charge. In other words, a person can be convicted with an OWI first in 2000, and charged with another OWI first in 2010. However, keep in mind that a third DUI/OWI within a person’s lifetime will result in DUI/OWI third, no matter how many years it has been since the second time a person was charged with DUI/OWI. The calculation dates for figuring “2 within 7” and “3 within a lifetime” is based on the conviction date for the first offense and the arrest for any subsequent charge.

Michigan Secretary of State gives its own licensing consequences on top of a criminal court. Therefore, for licensing purposes, Michigan Secretary of State looks to the prior conviction date to a person’s most recent conviction date and not conviction to arrest like the court does for calculation purposes. In addition, Michigan Secretary of state looks only to the proceeding 10 years for calculating licensing sanctions. So, a conviction for DUI/OWI 3rd more than 10 years after a prior conviction may result in licensing sanctions of a DUI/OWI 1st despite the criminal court consequences. A person should always keep in mind the 10 year look back period for licensing purposes is separate from the Criminal enhancement scheme described above.

Also important to note is that prior DUI/OWI convictions under the death or serious impairment of body function, child endangerment, or zero tolerance (minor) sections of MCL 257.625 can be used for enhancement purposes. These enhanced charges for DUI/OWI are not covered specifically in this article. If you are charged with one of these specially enhanced charges for DUI/OWI, contact an attorney immediately as your freedom may hang in the balance.

Keep in mind, only one (1) “zero tolerance” minor conviction can be used for enhancement purposes, even if there are many. Further, a conviction under MCL 257.625(2) for knowingly permitting an intoxicated operation of a vehicle is specifically disallowed as a prior conviction for enhancement purposes.

Additionally, always keep in mind the exceptions under the child endangerment section of the law, which provides that having a prior conviction under the statue will result in a felony charge in the instant case if you are charged under the DUI/OWI child endangerment section (MCL 257.625(7)(a)(ii). This is a notable and harsh break with the general enhancement scheme described above.

Below we have compiled an offense summary chart for quick reference of DUI/OWI/OWVI charges and their corresponding possible criminal and licensing consequences. 

 

Operating While Intoxicated (OWI)

BAC ≥.08
[MCL 257.625(1)]

OWI Super Drunk

BAC≥.17
[MCL 257.625.(1)(c)]

Operating While Visibly Impaired (OWVI)

[MCL 257.625(3)]
First Offense (no priors) MisdemeanorPossible Fine/Jail:

Up to 93 days jail; $100- $500 fine; or up to 360 hours community service.

Licensing Action:

Suspended: 30 days

Restricted: 180 days

6 point offense

Possible: ignition interlock and/or immobilization of vehicle up to 180 days.

MisdemeanorPossible Fine/Jail:

Up to 180 days jail; $200- $700 fine; or up to 360 hours community service.

Licensing Action:

Suspended: 45 days

Restricted: 1 year

6 point offense

Court ordered ignition interlock required

Possible: Immobilization of vehicle up to 180 days.

MisdemeanorPossible Fine/Jail:

Up to 93 days jail; $300 fine; or up to 360 hours community service.

Licensing Action:

Restricted: 90 days

4 point offense

Possible: ignition interlock and/or immobilization of vehicle up to 180 days.

2nd Offense or Prior OWI/DUI within 7 years MisdemeanorPossible Fine/Jail:

$200-$1,000 fine AND one or more of the following: Up to 5 days to 1 year jail; 30-90 days community service.

Licensing Action:

Suspended: 1 year minimum.

Immobilization of vehicle: 90-180 days, unless vehicle forfeited.

MisdemeanorPossible Fine/Jail:

$200-$1,000 fine AND one or more of the following: Up to 5 days to 1 year jail; 30-90 days community service.

Licensing Action:

Suspended: 1 year minimum.

Immobilization of vehicle: 90-180 days, unless vehicle forfeited.

MisdemeanorPossible Fine/Jail:

$200-$1,000 fine AND one or more of the following: Up to 5 days to 1 year jail; 30-90 days community service.

Licensing Action:

Suspended: 1 year minimum.

Immobilization of vehicle: 90-180 days, unless vehicle forfeited.

3rd Offense or 2 Prior OWI/DUI charges within a lifetime

 

(*within 10 years for licensing action to apply as 3rd instead of 1st)

FelonyPossible Fine/Jail:

$500-$5,000 fine AND EITHER of the following: 1-5 years prison; or 1 year jail and probation of 30 days to 1 year; AND

60-180 days community service.

Licensing Action:

Suspended: 1-5 years.

Immobilization of vehicle: 1-3 years, unless vehicle forfeited.

FelonyPossible Fine/Jail:

$500-$5,000 fine AND EITHER of the following: 1-5 years prison; or 1 year jail and probation of 30 days to 1 year; AND

60-180 days community service.

Licensing Action:

Suspended: 1-5 years.

Immobilization of vehicle: 1-3 years, unless vehicle forfeited.

FelonyPossible Fine/Jail:

$500-$5,000 fine AND EITHER of the following: 1-5 years prison; or 1 year jail and probation of 30 days to 1 year; AND

60-180 days community service.

Licensing Action:

Suspended: 1-5 years.

Immobilization of vehicle 1-3 years, unless vehicle forfeited.


Conclusion:

Facing a driving while intoxicated or visibly impaired charge can be difficult and can feel overwhelming. Drunk or drugged driving law is a difficult and complex section of law. Before you attempt to handle the prosecutor on your own, contact our experienced legal team in Grand Rapids for help at 616-698-0000 or www.clickforhoward.com