What Is “Heidi’s Law” In Michigan?

 

On January 3, 2007, Governor Jennifer Granholm signed Public Act 564 and Public Act 565 of 2006 into law and significantly increased the maximum penalties for habitual drunk drivers.  Known as “Heidi’s Law”, the new statute was named in memory of Heidi Steiner, a teenager from Antrim County, who was killed by a drunk driver in 1991.  That drunk driver was subsequently charged and convicted of manslaughter which led to a 10-year prison sentence.  After his release in 2001, he was charged with his third drinking and driving offense.  However, he was only charged with a misdemeanor instead of a felony because the then-existing statute only had a 10-year lookback period to turn operating while intoxicated into a felony.  Since his previous two drunk driving convictions occurred more than 10 years before the instant offense, the worse that the prosecuting attorney and the judge could do was sentence him to 93 days in jail despite his past.  This perceived injustice led to an uproar and a response in the Michigan Legislature to make the operating-while-intoxicating (OWI) statute more aggressive.  As a result, all Michigan drivers should be aware of the penalties associated with multiple drinking and driving offenses on your criminal record.

PRIOR to January 3, 2007, a person convicted of OWI for the first time is guilty of a misdemeanor punishable by up to 93 days in jail.  For a second conviction of OWI within a SEVEN year period, a person is guilty of a misdemeanor punishable by up to 1 year in jail.  If the offense occurred more than seven years after the first OWI conviction, then the person is only liable for a misdemeanor punishable by up to 93 days in jail.  For a third conviction of OWI within a TEN year period, a person is guilty of a felony punishable by up to 5 years in prison.  If the offense occurred more than ten years after the first two conviction, then the person is only liable for a misdemeanor punishable by up to 93 days in jail.

ON AND AFTER January 3, 2007, the Michigan Penal Code preserves the grounds penalties for first-offense and second offense OWIs, but modifies felony DUI charges as follows:

• For any THIRD OR SUBSEQUENT OFFENSE of operating while intoxicated or operating with any amount of a Schedule 1 or Schedule 2, “regardless of the number of years that have elapsed since any prior conviction”, contrary to MCL 257.625(9)(c), the penalty is a FELONY conviction punishable by:

1. 1. 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.

• For any THIRD OR SUBSEQUENT OFFENSE of operating while visible impaired, “regardless of the number of years that have elapsed since any prior conviction”, contrary to MCL 257.625(11)(c), the penalty is a FELONY conviction punishable by:

1. 1. 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.

• For any violation of child endangerment (e.g. operating a vehicle while visibly impaired, operating a vehicle while intoxicated or operating a vehicle with any amount of Schedule 1 or Schedule 2 substance with a person less than 16 years of age present) occurring EITHER within 7 years of a prior conviction OR for any THIRD OR SUBSEQUENT OFFENSE of child endangerment, “regardless of the number of years that have elapsed since any prior conviction”, contrary to MCL 257.625(7)(c), the penalty is a FELONY conviction punishable by:

1. 1. 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.

Heidi’s Law not only causes someone accused of drinking and driving to face a felony on their third offense, but to also face the prospect of mandatory minimum jail or prison.  In addition, the license sanctions will force the Michigan Secretary of State to take your license between 1 and 5 years.  To get your license back, you will have to attend a restoration hearing before a hearing officer and demonstrate that you have maintained your sobriety.

Is Heidi’s Law an ex post facto law?  Does this punish the defendant for conduct that likely occurred several years before the statute became effective on January 3^rd, 2007?  In People v Perkins, 280 Mich App 244; 760 NW2d 669 (2208), the defendant was arrested on March 23^rd, 2007 and charged with operating while intoxicating-third offense.  He had four prior drunk driving offenses from 1990, 1992, 1993 and 2005, with three of them having occurred more than 10 years ago under the old law.  The trial judge granted the defendant’s motion to quash the felony by applying the 10-year rule under the old statute, leading to the charge being dismissed.  The prosecutor appealed to the Michigan Court of Appeals and asked for the charge to be reinstated due to the trial court’s erroneous application of the law.  The defendant argued that Heidi’s law, as applied to him, was an ex post facto law because it is punishing him for past conduct that was not punished under the old statute.  He was on notice that the offense from 2005 could enhance his current charge but the three convictions from the 1990s would not, so the new law has the effect of punishing him now for this past conduct after the fact.  The Court of Appeals agreed with the prosecutor and found there was no ex post facto violation with the amended statute:

• “[T]he trial court was incorrect when it stated that ” Heidi’s Law is not unconstitutional as written; but when asked to apply it in the manner that is in these cases, such application is ex-post [sic] facto and is therefore prohibited.” “[T]he amended statute did not attach legal consequences to defendant’s prior impaired-driving conviction, but attached legal consequences to defendant’s future conduct….” Further, the court treated the prior 10-year limit on consideration of prior convictions as a statutory period of limitations that had run. But this analysis ignores the fact that defendants are not being prosecuted for the prior offenses. They are being prosecuted for actions that took place after the amendment took effect. [T]he change in the predicate offenses used to raise current conduct to the felony level does not constitute an ex post facto violation.” 280 Mich App at 251-252.

The Michigan Supreme Court declined to review the decision to reinstate the charge.  Heidi’s Law therefore survived constitutional challenge and remains the law of the land.

Michigan has taken a tough stand against drunk driving, but that is no reason to accepting defeat in a criminal prosecution. As always, remember that prosecutors has the burden of proving your guilt and a knowledgeable and skilled criminal defense lawyer will hold them to that standard. If you are accused of any drunk driving offense, do not hesitate to contact the attorneys at Kershaw, Vititoe & Jedinak PLC to get the best defense possible.