What Are The Penalties For Operating While Visibly Impaired (OWVI) in Michigan? – MCL 257.625(3)

Operating while visibly impaired has the least severe consequences of all the drunk driving offenses you could be charged with in Michigan. The prosecutor may sometimes offer the opportunity to plead guilty to this offense in exchange for the dismissal of an operating while intoxicated charge or worse. While a first-time offender might avoid a hard license suspension and pick up 4 points on his or her license instead of 6 points, there will still be significant fines, costs and possible vehicle immobilization or jail. This crime should not be taken lightly.

A person is guilty of operating while visibly impaired if the prosecutor can prove each of the following elements beyond a reasonable doubt:

• First, that the person was operating a motor vehicle, meaning they had actual physical control of the vehicle. A motor vehicle, defined by MCL 257.19, is “every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices exclusively moved by human power or used exclusively upon stationary rails or tracks…”. Besides cars and trucks, this definition can include go-carts, snowmobiles and dune buggies if operated upon a highway. If the police arrive and the car is not running, it is possible for the prosecutor to establish circumstantial evidence of operating such as the hood and tires being warm from recent operation.

• Second, that the person was operating the vehicle on a highway or another place open to the public or generally accessible to the motor vehicles. This definition is VERY BROAD and, very recently, the Michigan Supreme Court held that a private driveway was “generally accessible to motor vehicles” for the purpose of sustaining a drunk driving conviction. See People v Rea, 500 Mich 422; 902 NW2d 362 (2017).

• Third, while operating the vehicle, the person was visibly impaired. This means that the driver’s ability to operate was so weakened or reduced by the consumption of alcohol, controlled substances or other intoxicating substances (or a combination of them) that the operation was with less care and that used by an ordinary, careful and prudent driver. People v Lambert, 395 Mich 296; 235 NW2d 338 (1975). The prosecutor does not have to prove that you actually committed “bad driving” while impaired, but rather your “ability” was visibly impaired (e.g. even with normal driving, a conviction can be sustained for a driver who was pulled over and observed with bloodshot eyes, failed the field sobriety tests and admitted to drinking).

• Fourth, that the person voluntarily decided to operate the vehicle knowing that he or she consumed alcohol, a controlled substance (or a combination of both) and might be intoxicated. To be “voluntary”, it must be shown that you were not operating the vehicle out of dire necessity or duress. To be “knowing”, it must be shown that you did not ingest alcohol or a controlled substance unwittingly (e.g. the punchbowl at the party was “spiked” with an unknown liquor). Whether the intoxication was voluntary or knowing is often not difficult for the prosecutor to prove and showing otherwise depends greatly on the facts and circumstances.

The penalties for operating while visibly impaired are as follows:

• For a first offense, the penalty is a misdemeanor conviction punishable by:

1. A fine up to $300.00, or up to 93 days In jail, or both.
2. Up to 360 hours of community service.
3. Driver’s License is restricted up to 90 days (180 days if impaired by a controlled substance) with no hardship appeal available.
4. Possible vehicle immobilization
5. 4 points added to your Michigan driving record
6. Driver Responsibility Fee of $500.00 for two consecutive years (will be eliminated and forgiven by October 1^st, 2018).

• For a second offense within the last seven years, the penalty is a misdemeanor conviction punishable by:

1. A fine of between $200.00 and $1,000.00.
2. A jail sentence between 5 days and 365 days.
3. Community service between 30 days and 90 days.
4. Driver’s License is revoked for at least one year.
5. Possible vehicle immobilization or forfeiture.
6. 4 points added to your Michigan driving record.
7. Driver Responsibility Fee of $500.00 for two consecutive years (will be eliminated and forgiven by October 1^st, 2018).

• For a third or subsequent offense, the penalty is a felony conviction punishable by:

1. A fine between $500.00 and $5,000.00.
2. Prison sentence between 1 to 5 years OR probation with a jail sentence between 30 days and one year (48 hours must be served consecutively) and community service between 60 days and 180 days.
3. Driver’s License is revoked for at least one year.
4. Vehicle immobilization or forfeiture.
5. 4 points added to your Michigan driving record.
6. Driver Responsibility Fee of $500.00 for two consecutive years (will be eliminated and forgiven by October 1^st, 2018).

• If the offense resulted in the serious impairment of a body function of another person, contrary to MCL 257.625(5)(a), the penalty is a felony conviction punishable by:

1. A fine between $1,000.00 and $5,000.00.
2. Imprisonment up to 5 years
3. Driver’s License is revoked for at least one year.
4. Vehicle immobilization or forfeiture.
5. 6 points added to your Michigan driving record.
6. Driver Responsibility Fee of $1,000.00 for two consecutive years (will be eliminated and forgiven by October 1^st, 2018).

• If the offense resulted in the death of another person, contrary to MCL 257.625(4)(a), the penalty is a felony conviction punishable by:

1. A fine between $2,500.00 and $10,000.00.
2. Imprisonment up to 15 years
3. Driver’s License is revoked for at least one year.
4. Vehicle immobilization or forfeiture.
5. 6 points added to your Michigan driving record.
6. Driver Responsibility Fee of $1,000.00 for two consecutive years (will be eliminated and forgiven by October 1^st, 2018).

• If the offense resulted in the death of a police officer, firefighter or other emergency personnel, contrary to MCL 257.625(4)(c), the penalty is a felony conviction punishable by:

1. A fine between $2,500.00 and $10,000.00.
2. Imprisonment up to 20 years
3. Driver’s License is revoked for at least one year.
4. Vehicle immobilization or forfeiture.
5. 6 points added to your Michigan driving record.
6. Driver Responsibility Fee of $1,000.00 for two consecutive years (will be eliminated and forgiven by October 1^st, 2018).

You can be charged with OWVI even if your blood alcohol content is NOT at the 0.08 legal limit. There is no need to introduce a blood draw or Datamaster DMT to prove this offense (regardless, the prosecutor may still rely on an alcohol result below the legal limit to show the presence of the substance in your system). It doesn’t matter if you had one drink or several. You can also be charged if you had any amount of a controlled substance in your system that is affecting your ability to drive. The police officer has substantial discretion in determining whether you can safely operate a vehicle or not based on their observations. Attacking the credibility of a police officer in court as to his or her judgment call is not easy and requires the skill of a knowledgeable lawyer.

If you or a loved one is accused of operating while visibly impaired or any other drunk driving offense, contact the criminal defense attorneys at Kershaw, Vititoe and Jedinak PLC for the best defense in even the most difficult cases.