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What Are The Penalties For Operating With High Bodily Alcohol Content In Michigan? (“Superdrunk Law”) – MCL 257.625(1)(c)

Operating with high bodily alcohol content in michigan superdrunk law   mcl 2576251c

The so-called “super drunk” law was passed by the Michigan Legislature in 2008 and took effect on October 31st, 2010. The law was passed to target the drunkest drivers (0.17 BAC or higher) who are usually at fault for the deadliest crashes. Generally, it enhances the penalties for a first-time OWI by making the potential fines higher, making the possible jail time longer and making the license sanctions more oppressive.

A person is guilty of operating a motor vehicle with a high bodily alcohol content (BAC) if the prosecutor can prove each of the following elements beyond a reasonable doubt:

  • 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, 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 under MCL 257.625(1). See People v Rea, 500 Mich 422; 902 NW2d 362 (2017).
  • Third, while operating the vehicle, the person had a bodily alcohol content (BAC) at or above 0.17. After an arrest, law enforcement will almost always request that the suspect submit to either an evidential breath test with the DataMaster DMT or a blood test. For the DataMaster DMT test to be admissible in court, the police must follow specific regulations such as proper calibration, regular testing and observation of the suspect for 15 minutes prior to obtaining a sample. For a hospital blood draw to be admissible in court, the sample must generally be either from hospital personnel drawn for medical treatment purposes or by consent of the suspect. If the trier of fact (the judge or jury) finds you had a BAC at or above 0.17, your intoxication is assumed despite your actual driving performance.
  • 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 a motor vehicle with a high bodily alcohol content (BAC) are as follows:

  • For a first offense, the penalty is a misdemeanor conviction punishable by:
  1. A fine between $200.00 and $700.00.
  2. A jail sentence up to 180 days.
  3. Community service up to 360 hours.
  4. Driver’s License is suspended for the first 45 days, then restricted for the following 320 days with no hardship appeal.
  5. Ignition interlock device required.
  6. Possible vehicle immobilization
  7. 6 points added to your Michigan driving record
  8. Driver Responsibility Fee of $1,000.00 for two consecutive years (will be eliminated and forgiven by October 1st, 2018).
  • For a second offense occurring within the last seven years, the penalty is a misdemeanor conviction (same penalties as OWI – 2nd Offense) punishable by:
  1. A fine between $200.00 and $1,000.00.
  2. Jail sentence not less than 5 days but not more than one year (48 hours must be served consecutively).
  3. Community service between 30 days and 90 days.
  4. Driver’s License is revoked for at least one year.
  5. Possible vehicle immobilization and forfeiture.
  6. 6 points added to your Michigan driving record.
  7. Driver Responsibility Fee of $1,000.00 for two consecutive years (will be eliminated and forgiven by October 1st, 2018).
  • For a third or subsequent offense, the penalty is a felony conviction (same penalties as OWI – 3rd Offense) 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. Commercial Driver’s License is suspended for one year.
  5. Vehicle immobilization or forfeiture.
  6. 6 points added to your Michigan driving record.
  7. Driver Responsibility Fee of $1,000.00 for two consecutive years (will be eliminated and forgiven by October 1st, 2018).
  • If the offense resulted in the serious impairment of a body function of another person, contrary to MCL 257.625(5)(b), the penalty is a felony conviction (same as the OWI statute) punishable by:
  1. A fine between $1,000.00 and $5,000.00.
  2. Imprisonment up to 10 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 1st, 2018).
  • If the offense resulted in the death of another person, contrary to MCL 257.625(4)(b), 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 1st, 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 1st, 2018).

It is not uncommon for prosecutors to offer the defendant a plea to operating while intoxicated – first offense in exchange for the dismissal of the high-BAC offense. The increasing number of drunk driving offenses gives the prosecutor several options on how to resolve the case depending on the individual facts and circumstances. The prosecutor also knows and takes advantage of the fact that the penalties for operating a vehicle with a high bodily alcohol content (BAC) are severe and will leverage the defendant into resolving the matter with a plea bargain.

The Michigan Legislature continues to increase the costs of drunk driving and will likely make such convictions even more challenging in the future. Drunk drivers are a popular target for politicians for public policy since they are universally despised. As a result, the need for an experienced criminal defense lawyer in your corner has never been greater. If you are accused of any drunk driving offense, do not hesitate to contact the attorneys at Kershaw, Vititoe & Jedinak PLC for the best resolution of your criminal matter.

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