The State of Michigan has tough penalties for operating a motor vehicle on its roads and highways while intoxicated from alcohol or drugs. This hard stance also extends to operating an off-road vehicle (ORV) of any kind while under the influence, even if it NOT being operated on Michigan’s roads and highways. The pertinent definitions are:
- “Operate” means “to ride in or on, and be in actual physical control of, the operation of an ORV.” MCL 324.81101(s).
- “”ORV” means a “motor-driven off-road recreation vehicle capable of cross-country travel without benefit of a road or trail, on or immediately over land, snow, ice, marsh, swampland, or other natural terrain. A multitrack or multiwheel drive vehicle, a motorcycle or related 2-wheel vehicle, a vehicle with 3 or more wheels, an amphibious machine, a ground effect air cushion vehicle, or other means of transportation may be an ORV. An ATV is an ORV. ORV or vehicle does not include a registered snowmobile, a farm vehicle being used for farming, a vehicle used for military, fire, emergency, or law enforcement purposes, a vehicle owned and operated by a utility company or an oil or gas company when performing maintenance on its facilities or on property over which it has an easement, a construction or logging vehicle used in performance of its common function, or a registered aircraft.” MCL 324.81101(u).
- “ATV” means “a vehicle with 3 or more wheels that is designed for off-road use, has low-pressure tires, has a seat designed to be straddled by the rider, and is powered by a 50cc to 1,000cc gasoline engine or an engine of comparable size using other fuels.” MCL 324.81101(b).
Here are the criminal statutes in Michigan that punish DUI behavior while operating an ORV under the Natural Resources and Environmental Protection Act:
OPERATING AN ORV WHILE INTOXICATED (MCL 324.81134(1))
A person shall not operate an ORV in this state if ANY of the following apply:
- The person is under the influence of alcoholic liquor or a controlled substance, or both. MCL 324.81134(1)(a).
- The person has a blood alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. MCL 324.81134(1)(b).
- The person has in his or her body any amount of a Schedule 1 controlled substance (e.g. heroin) or a controlled substance derived from coca leaves (e.g. cocaine). MCL 324.81134(1)(c).
The penalties for operating an ORV while intoxicated are as follows:
- For a first violation, a misdemeanor conviction pursuant to MCL 324.81134(8)(a) punishable by:
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- A fine between $100.00 and $500.00
- Up to 93 days in jail
- Up to 360 hours of community service
- 6 points added to Michigan driving record
- ORV operating privileges are suspended between six months and two years with no hardship appeal. MCL 324.81134(14)(a).
- For a violation occurring within 7 years of a prior violation, a misdemeanor conviction pursuant to MCL 324.81134(8)(b) punishable by:
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- A fine between $200.00 and $1,000.00
- Jail for not less than 5 days but up to 1 year. At least 48 hours must be served consecutively.
- Between 30 days and 90 days of community service.
- 6 points added to Michigan driving record.
- ORV operating privileges are suspended between one year and two years with no hardship appeal. MCL 324.81134(14)(b).
- For a violation occurring after two prior violations no matter how much time has lapsed, a felony conviction pursuant to MCL 324.81134(8)(c) punishable by:
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- A fine between $500.00 and $5,000.00.
- Imprisonment in state prison between 1 year and 5 years OR probation with imprisonment in the county jail between 30 days and 1 year with community service between 60 days and 180 days. At least 48 hours of the imprisonment must be served consecutively.
- 6 points added to Michigan driving record.
- If two or more prior convictions occurred in the last 10 years, ORV operating privileges are suspended between one year and two years with no hardship appeal. MCL 324.81134(14)(c).
OPERATING AN ORV WHILE VISIBLY IMPAIRED (MCL 324.81134(3))
A person shall not operate an ORV in this state when, due to the consumption of an alcoholic liquor or a controlled substance, or both, the person’s ability to operate the ORV is visibly impaired. If that person is under the influence of alcoholic liquor or a controlled substance, or has a blood alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or has any amount of a Schedule 1 controlled substance or a controlled substance derived from coca leaves in his or her body, then he or she may be found guilty of this offense.
The penalties for operating an ORV while visibly impaired are as follows:
- For a first offense, a misdemeanor conviction pursuant to MCL 324.81134(10)(a) punishable by:
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- A fine up to $300.00.
- Up to 93 days in jail.
- Up to 45 days of community service.
- 4 points added to Michigan driving record.
- ORV operating privileges are suspended between 90 days and one year with no hardship appeal. MCL 324.81134(15)(a).
- For a violation occurring within 7 years of a prior violation, a misdemeanor conviction pursuant to MCL 324.81134(10)(b) punishable by:
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- A fine between $200.00 and $1,000.00
- Up to 1 year in jail
- Between 10 days and 90 days of community service.
- 4 points added to Michigan driving record.
- ORV operating privileges are suspended between 6 months and 18 months with no hardship appeal. MCL 324.81134(15)(b).
- For a violation occurring after two prior violations no matter how much time has lapsed, a misdemeanor conviction pursuant to MCL 324.81134(10)(c) punishable by:
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- A fine between $200.00 and $1,000.00.
- Up to 1 year in jail.
- Between 10 days and 90 days of community service.
- 4 points added to Michigan driving record.
- If two or more prior convictions occurred in the last 10 years, ORV operating privileges are suspended between one year and two years with no hardship appeal. MCL 324.81134(15)(c).
OPERATING AN ORV WHILE INTOXICATED OR IMPAIRED CAUSING SERIOUS IMPAIRMENT OF A BODY FUNCTION (MCL 324.81134(5))
A person who operates an ORV in this state while ANY of the following:
- The person is under the influence of alcoholic liquor or a controlled substance, or both. MCL 324.81134(1)(a).
- The person has a blood alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. MCL 324.81134(1)(b).
- The person has in his or her body any amount of a Schedule 1 controlled substance (e.g. heroin) or a controlled substance derived from coca leaves (e.g. cocaine). MCL 324.81134(1)(c).
- The person’s ability to operate the ORV is visibly impaired due to the consumption of an alcoholic liquor or a controlled substance, or both. MCL 324.82127(3).
AND causes a serious impairment of a body function of another person is guilty of a felony punishable by a fine between $1,000.00 and $5,000.00, or up to 5 years in state prison, or both. “Serious impairment of a body function” includes, but is not limited to, 1 or more of the following pursuant to MCL 257.58c:
- Loss of a limb or loss of use of a limb.
- Loss of a foot, hand, finger, or thumb or loss of use of a foot, hand, finger, or thumb.
- Loss of an eye or ear or loss of use of an eye or ear.
- Loss or substantial impairment of a bodily function.
- Serious visible disfigurement.
- A comatose state that lasts for more than 3 days.
- Measurable brain or mental impairment.
- A skull fracture or other serious bone fracture.
- Subdural hemorrhage or subdural hematoma.
- Loss of an organ.
In addition, 6 points shall be added to the person’s Michigan driving record.
OPERATING AN ORV WHILE INTOXICATED OR IMPAIRED CAUSING DEATH (MCL 324.81134(4))
A person who operates an ORV in this state while ANY of the following:
- The person is under the influence of alcoholic liquor or a controlled substance, or both. MCL 324.81134(1)(a).
- The person has a blood alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. MCL 324.81134(1)(b).
- The person has in his or her body any amount of a Schedule 1 controlled substance (e.g. heroin) or a controlled substance derived from coca leaves (e.g. cocaine). MCL 324.81134(1)(c).
- The person’s ability to operate the ORV is visibly impaired due to the consumption of an alcoholic liquor or a controlled substance, or both. MCL 324.81134(3).
AND causes the death of another person is guilty of a felony punishable by a fine between $2,500.00 and $10,000.00, or up to 15 years in state prison, or both. In addition, 6 points shall be added to the person’s Michigan driving record.
OPERATING AN ORV UNDER AGE 21 WITH ANY BODILY ALCOHOL CONTENT (“ZERO TOLERANCE”)(MCL 324.81134(6))
A person who is less than 21 years of age, whether licensed or not, shall not operate an ORV in this state if the person has any bodily alcohol content. As used in this subsection, “any bodily alcohol content” means either of the following:
- An alcohol content of 0.02 grams or more but less than 0.08 grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. MCL 324.81134(6)(a).
- Any presence of alcohol within a person’s body resulting from the consumption of alcoholic liquor, other than consumption of alcoholic liquor as a part of a generally recognized religious service or ceremony. MCL 324.81134(6)(b).
The penalties for operating an ORV under age 21 with any bodily alcohol content are:
- For a first offense, a misdemeanor conviction pursuant to MCL 324.81134(11)(a) punishable by:
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- A fine up to $250.00
- Community service up to 360 hours.
- For a violation occurring within 7 years of a prior violation, a misdemeanor conviction pursuant to MCL 324.81134(11)(b) punishable by:
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- A fine up to $500.00
- Up to 93 days in jail.
- Up to 60 days of community service.
CHILD ENDANGERMENT WHILE OPERATING AN ORV (MCL 324.81134(7))
A person, whether licensed or not, shall not operate an ORV while another person who is less than 16 years of age is a passenger while doing any of the following:
- Operating an ORV while intoxicated (MCL 324.81134(1))
- Operating an ORV while visibly impaired (MCL 324.81134(3))
- Operating an ORV while intoxicated or impaired causing serious impairment to a bodily function (MCL 324.81134(5))
- Operating an ORV while intoxicated or impaired causing death (MCL 324.81134(4))
- Operating an ORV under age 21 with any bodily alcohol content (MCL 324.81134(6))
The penalties for child endangerment while operating an ORV while intoxicated, while visibly impaired, or while intoxicated or impaired causing serious impairment to a bodily function or death are as follows:
- For a first offense, a misdemeanor conviction pursuant to MCL 324.81134(12)(a)(i) punishable by:
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- A fine between $200.00 and $1,000.00
- Jail between 5 days and 1 year with at least 48 hours to be served consecutively.
- Community service between 30 days and 90 days.
- If the violation occurred within 7 years of a prior conviction OR after 2 or more prior convictions no matter how much time has lapsed, a felony conviction pursuant to MCL 324.81134(12)(a)(ii) punishable by:
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- A fine between $500.00 and $5,000.00.
- State prison between 1 to 5 years OR probation with 30 days to 1 year in jail and community service between 60 days and 180 days, with at least 48 hours of jail time served consecutively.
The penalties for child endangerment while operating an ORV under age 21 with any bodily alcohol content are as follows:
- For a first offense, a misdemeanor conviction pursuant to MCL 324.81134(12)(b)(i) punishable by:
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- A fine up to $500.00
- Up to 93 days in jail
- Community service up to 60 days
- If the violation occurred within 7 years of a prior conviction OR after 2 or more prior convictions no matter how much time has lapsed, a felony conviction pursuant to MCL 324.81134(12)(b)(ii) punishable by:
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- A fine between $200.00 and $1,000.00.
- Between 5 days and 1 year in jail, with at least 48 hours served consecutively.
- Community service between 30 days and 90 days.
AUTHORIZING ANOTHER PERSON TO OPERATE AN ORV WHILE INTOXICATED OR IMPAIRED (MCL 324.81134(2))
The owner of an ORV or a person in charge or in control of an ORV shall not authorize or knowingly permit the ORV to be operated in this state by a person if any of the following apply:
- The person is under the influence of alcoholic liquor or a controlled substance, or both. MCL 324.81134(2)(a).
- The person has a blood alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. MCL 324.81134(2)(b).
- The person’s ability to operate the ORV is visibly impaired due to the consumption of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance. MCL 324.81134(2)(c).
The penalties for authorizing another person to operate an ORV while intoxicated or impaired is a misdemeanor conviction punishable by a fine between $100.00 and $500.00 or up to 93 days in jail, or both. MCL 324.81134(9).
IMPLIED CONSENT TO CHEMICAL TESTING
“If a peace officer has reasonable cause to believe that a person was, at the time of an accident, the operator of an ORV involved in the accident and was operating the ORV while under the influence of an alcoholic liquor, a controlled substance…, or a combination of alcoholic liquor and a controlled substance, or was operating the ORV while his or her ability to operate an ORV was impaired due to the consumption of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance, the peace officer may arrest the alleged operator of the ORV without a warrant.” MCL 324.81144. Also, “[a] peace officer who has reasonable cause to believe that a person was operating an ORV and that the person by the consumption of alcoholic liquor may have affected his or her ability to operate the ORV, may require the person to submit to a preliminary chemical breath analysis.” MCL 324.81141(1). This preliminary breath test is used to aid the peace officer in determining if there is enough probable cause to make an arrest. Failure to submit to this preliminary chemical breath analysis upon a lawful request by a peace officer makes the person responsible for a state civil infraction and may be ordered to pay a civil fine of not more than $500.00. MCL 324.81141(5). Despite the fine, it may be prudent to refuse this preliminary breath test if it leads to damaging evidence to be used against you at trial.
If the person is arrested for operating an ORV under the influence, the peace officer can require that person to submit to a formal chemical test of that person’s blood, urine or breath (e.g. blood draw or using the DMT Datamaster breathalyzer test). MCL 324.81136(1). Under Michigan’s implied consent law, a person is deemed to have given consent to formal chemical testing by virtue of exercising the privilege of operating an ORV in this state. MCL 324.81137(1). The person may elect whether the testing is completed by blood, urine or breath, but the results are admissible in a court of law to determine the person’s guilt or innocence. MCL 324.82137(3). The police officer cannot compel the person to take a formal chemical test without a court order, although he or she may pursue one. MCL 324.81137(5). A person who refuses to submit to this formal chemical test after arrest will be issued an order recorded with the Michigan Secretary of State not to operate an ORV. MCL 324.81137(5). For a first refusal, this no-operation order shall last 1 year, but it is extended to 2 years if this is a second or subsequent refusal. MCL 324.81140(1). A person’s refusal to submit to a preliminary breath test or a formal chemical test after arrest is admissible in a criminal prosecution for the purpose of showing the test was offered, but not admissible for showing the person’s guilt or innocence. MCL 324.81137(7).
If a person is found guilty, pleads guilty or pleads no contest to operating an ORV under the influence of alcohol or drugs, then the court will order the person to undergo screening and assessment to determine if the person could benefit from rehabilitative services, education or treatment programs. In addition to the statutory penalties, the court can order that person to participate in and complete a rehabilitative program as a condition of probation or parole at that person’s expense. MCL 324.81134(18). Failure to complete rehabilitative programs as ordered can result in a violation of probation or parole which subjects the person to additional incarceration. If a person is also ordered not to operate an ORV due to refusing a formal chemical test or operating a ORV while intoxicated, then violating that order (or knowingly permitting someone else to violate that order with his or her ORV) can result in an additional misdemeanor conviction punishable by a fine up to $1,000.00 or up to 90 days in jail, or both. MCL 324.81142.
In addition, if the operator’s or chauffeur’s license of a Michigan resident is suspended or revoked by the Michigan Secretary of State (or suspended or revoked for a non-resident by their home state), then that person is prohibited from operating an ORV in Michigan during that suspension or revocation period. MCL 324.81140a(1). The penalty for violating this law is a misdemeanor conviction punishable by:
- For a first offense, a fine up to $500.00 or up to 93 days in jail, or both. MCL 324.81140a(2)(a).
- For a second or subsequent offense, a fine up to $1,000.00 or up to 180 days in jail, or both. MCL 324.81140a(2)(b).
Michigan has enacted tough penalties for operating an ORV while under the influence of alcohol or drugs, but that is no reason to accepting defeat in a criminal prosecution. As always, remember that prosecutors have the burden of proving your guilt beyond reasonable doubt. A knowledgeable and skilled criminal defense lawyer will hold the prosecutors to that standard. You may have a valid defense to the alleged crime available to assert. For example, the evidence against you may be suppressed if the peace officer wrongfully seized blood alcohol results without a warrant or extracted a confession without notifying you of your Miranda rights. You may be found not guilty of the offense if you were not actually operating the ORV, you were not actually impaired, or you were lawfully proscribed the controlled substances in your system.
If you or a loved one is accused of any DUI offense, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
