Teenagers are high-risk drivers on public roads because they often lack the experience to deal with all the situations that a driver of any age might face. If this inexperience is coupled with the consumption of alcohol, then the odds of a catastrophe occurring will skyrocket. As a result, the Michigan Legislature has passed a “zero tolerance” law making it a crime for minors to operate a vehicle with even the smallest amounts of alcohol in their system.
A person is guilty of operating with any bodily alcohol content under age 21 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, 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, that the person was under the age of 21 when operating the motor vehicle.
- Fourth, that the person had a bodily alcohol level (BAC) at or above 0.02 but less than 0.08 when operating the motor vehicle, other than for alcohol consumed at a generally recognized religious ceremony. 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 regulation 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 there is a BAC at or above 0.02, then it doesn’t matter the person was actually intoxicated or impaired.
The penalties for operating with any bodily alcohol content under age 21 are as follows:
- For a first offense, the penalty is a misdemeanor conviction punishable by:
- A fine up to $250.00.
- Community service up to 360 hours.
- 4 points added to your Michigan driving record.
- Driver’s License restricted for 30 days.
- For a second or subsequent offense within the last seven years, the penalty is a misdemeanor punishable by:
- A fine up to $500.00.
- Jail sentence up to 93 days.
- Community service up to 60 days.
- 4 points added to your Michigan driving record.
- Driver’s License suspended for 90 days.
It is also important for minors to consider that, under MCL 257.625(26), a prior conviction for a minor operating with any bodily alcohol content can be used to elevate a future operating while intoxicated (OWI) charge to a one-year misdemeanor offense or even a felony offense. In People v Bulger, 291 Mich App 1; 804 NW2d 341 (2010), the Michigan Court of Appeals upheld the intent of the Legislature for zero tolerance offenses to enhance future drunk driving offenses.
While a first-time offender cannot go to jail, a conviction for a minor operating with any bodily alcohol content is still a misdemeanor that can impact future employment, educational or residential opportunities. The effect on a Michigan operator’s license cannot be overlooked either. If you are accused of any drunk driving offense, do not hesitate to contact the attorneys at Kershaw, Vititoe & Jedinak PLC to start putting your best criminal defense together today.
