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Information on crimes that are commonly charged in Michigan. If you need legal assistance, please contact a lawyer.

 

Operating a Vehicle while Intoxicated/Impaired or With a Controlled Substance,  3rd Offense

Statute: MCL 257.625(9)(c) and (11)(c)
Crime Group: Public Safety
Sentence Class: E
Minimum Sentence: 30 Days
Maximum Sentence1: 60 Months
Maximum Fine: $5,000.00
Jury Instructions: MCJI2d 15.01, 15.02, 15.03, 15.04, 15.05
Sex Offender Registration Required: No

Statutory Language:

(1) 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 is operating while intoxicated.

[…]

(3) 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 when, due to the consumption 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’s ability to operate the vehicle is visibly impaired. If a person is charged with violating subsection (1), a finding of guilty under this subsection may be rendered.

[…]

(8) 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.

(9) If a person is convicted of violating subsection (1) or (8), all of the following apply:

[…]

(c) If the violation occurs after 2 or more prior convictions, regardless of the number of years that have elapsed since any prior conviction, the person is guilty of a felony and shall be sentenced to pay a fine of not less than $500.00 or more than $5,000.00 and to either of the following:
(i) Imprisonment under the jurisdiction of the department of corrections for not less than 1 year or more than 5 years.
(ii) Probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. Not less than 48 hours of the imprisonment imposed under this subparagraph shall be served consecutively.
[…]

(11) If a person is convicted of violating subsection (3), all of the following apply:

[…]

(c) If the violation occurs after 2 or more prior convictions, regardless of the number of years that have elapsed since any prior conviction, the person is guilty of a felony and shall be sentenced to pay a fine of not less than $500.00 or more than $5,000.00 and either of the following:
(i) Imprisonment under the jurisdiction of the department of corrections for not less than 1 year or more than 5 years.
(ii) Probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. Not less than 48 hours of the imprisonment imposed under this subparagraph shall be served consecutively.

Discussion:

Thousands of people are convicted of felony drunk driving each year in Michigan. There are three different theories under which a person can be convicted for this offense.

The first is “Operating While Intoxicated” or “Operating Under the Influence of Liquor” (OUIL). A conviction under this charge requires the prosecution to prove that the defendant had a blood alcohol content of .08 or higher while operating an automobile. It does not matter whether the person’s driving appeared to be unaffected. It also does not apply if the defendant was not operating a vehicle when his/her blood alcohol content reached this threshold.

The second theory under which a felony drunk driving conviction can be charged is “Operating While Visibly Impaired” (sometimes referred to as simply “Impaired”) or “Operating Under the Influence of Drugs”. This charge is proven through circumstantial evidence: the prosecutor must show that because of the alcohol or drugs the defendant ingested, his/her ability to operate a vehicle was substantially lessened. A prosecution under this theory typically requires eyewitness testimony that the defendant was driving in a manner that would cause a reasonable person to believe the person was intoxicated. There is no minimum level of alcohol or drugs that must be established for the prosecution to obtain a conviction under this theory; it must only be proven that the individual’s ability to drive was impaired.

The third theory under which a felony drunk driving can be charged is a “zero tolerance” theory of “Operating With the Presence of Drugs”. To convict a defendant of this charge, the prosecution must prove that the person had any amount of a “Schedule 1” controlled substance in his or her body while driving. “Schedule 1” controlled substances are defined by statute, but in general terms are drugs that have no recognized medical uses. These substances include heroin, cocaine, methamphetamine, and marijuana2. A person does not have to be affected by the controlled substance; mere presence is enough to support a conviction. Sentencing under this theory is typically harsher than most other forms of drunk driving.

For this offense to be a felony, it must be a “third offense”, meaning that the defendant has been convicted of drunk driving at least twice before. While convictions for first and second offenses are misdemeanors, a third offense is a felony and the sentence for this crime will be either: (a) 30 to 360 days jail time (with at least 48 hours being consecutive) and probation, with 60-180 days of community service set as a condition of the probation; or (b) between one and five years in prison, as well as a fine that could be anywhere from $500 to $5,000. The fine is mandatory, meaning that the defendant will receive a fine, but it is within the judge’s discretion to determine how much.

While the penalties above are bad, it doesn’t stop there. If a person is convicted of Operating While Intoxicated 3rd offense, that person will also have their license revoked for at least one year, or five years if this is the second revocation within 7 years. His/her vehicle will be immobilized and the license plate confiscated, and (s)he will also have to pay a $1,000 Driver’s Responsibility Fee every year for the next two years. When a license is revoked, the state presumes that person to be an unsafe driver. In order to get a license back, a person has to attend an administrative hearing and prove to the state that they are a safe driver. This is very difficult to do, and it is very common for a person to be denied the first time.

Most prosecuting attorneys in Michigan have policies in place regarding an Operating While Intoxicated 3rd offense that restrict them from pleading this crime down. Very rarely, if the case is very weak, the prosecution may offer to plea down to an Operating While Intoxicated 2nd offense, which is a misdemeanor with less severe penalties. It should be noted that this charge can be brought any time there are two or more prior convictions, even if all of the prior convictions were charged as a “first offense”. It should also be noted that this offense cannot be expunged under Michigan’s criminal record expungement statute, MCL 780.621 et seq.

1Maximum sentence shown is for a first-time felony offender. Prior felonies make a defendant liable for “Habitual Offender” (“HO”) sentencing enhancement. Thus, for a defendant with one prior felony or attempted felony (“HO2”), the maximum sentence raises to 90 months (7.5 years); for a defendant with two prior felonies or attempted felonies (“HO3”), the maximum sentence raises to 120 months (10 years); and a defendant with three or more prior felonies or attempted felonies (“HO4”) faces a maximum sentence of life in prison.

2Despite the fact that many physicians are finding that marijuana has medical uses, it is still considered a “Schedule 1” drug in the statute. The only way to potentially avoid being charged with Operating with the Presence of Drugs, is to apply for, and receive, a medical marijuana card.
 

 

 

 

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