DUI offenses are treated seriously by police and prosecutors because a driver under the influence of alcohol or drugs creates a high risk of causing injury to persons and property. When a drunk driver causes a permanent injury to someone as a result of operating a motor vehicle, then a felony conviction can result which can lead to substantial fines and prison time. This blog article will explain the elements, penalties and possible defenses to a charge of DUI causing serious impairment of a body function under MCL 257.625(5).
ELEMENTS OF DUI CAUSING SERIOUS IMPAIRMENT OF A BODY FUNCTION
A person is guilty of operating while intoxicated causing serious impairment of a body function, contrary to MCL 257.625(5), if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 15.2a, 15.3a and 15.4a):
- First, that the person operated a motor vehicle. To operate means to drive or have actual physical control of the vehicle.
- Second, that the person operated the vehicle on a highway or other place open to the public or generally accessible to motor vehicles [including any designated parking area].
- Third, that the person was intoxicated. That is, the person:
-
- Operated the vehicle with a bodily alcohol level of 0.08 grams or more per [100 milliliters of blood / 210 liters of breath / 67 milliliters of urine];
- Operated the vehicle while under the influence of alcohol;
- Operated the vehicle while under the influence of a controlled substance;
- Operated the vehicle while under the influence of an intoxicating substance;
- Operated the vehicle while under the influence of a combination of alcohol, a controlled substance, or an intoxicating substance.
OR
Third, that the person was visibly impaired, meaning that, due to the drinking of alcohol, use or consumption of a controlled substance, and/or use or consumption of an intoxicating substance, the person drove with less ability than would an ordinary careful driver. The person’s ability to drive must have been lessened to the point that it would have been noticed by another individual. It is the person’s ability to drive that must have been visibly lessened, not the person’s manner of driving, though evidence of the person’s manner of driving may be considered as evidence of the person’s ability to drive.
OR
Third, that while operating the vehicle, the person had any amount of a Schedule 1 or Schedule 2 controlled substance in his in her body.
- Fourth, that the person voluntarily decided to drive knowing that he or she had consumed alcohol, a controlled substance, and/or an intoxicating substance and might be intoxicated or visibly impaired (or consumed any amount of a Schedule 1 or Schedule 2 controlled substance).
- Fifth, that the person’s operation of the vehicle caused the serious impairment of a body function of another individual. To cause such injury, the person’s operation of the vehicle must have been a factual cause of the injury, that is, but for the person’s operation of the vehicle, the injury would not have occurred. In addition, serious injury must have been a direct and natural result of operating the vehicle.
Under the influence of alcohol, a controlled substance and/or an intoxicating substance means that because of use or consumption, the person’s ability to operate a motor vehicle in a normal manner was substantially lessened. To be under the influence, a person does not have to be falling down or hardly able to stand up. On the other hand, just because a person has drunk alcohol or smells of alcohol, consumed or used a controlled substance, or consumed or used an intoxicating substance does not prove, by itself, that the person is under the influence of alcohol, a controlled substance, or an intoxicating substance. The test is whether, because of drinking alcohol, using or consuming a controlled substance, or consuming or taking into his or her body an intoxicating substance, the person’s mental or physical condition was significantly affected and the defendant was no longer able to operate a vehicle in a normal manner.
An intoxicating substance is a substance in any form, including but not limited to vapors and fumes, other than food, that was taken into the defendant’s body in any manner, that is used in a manner or for a purpose for which it was not intended, and that may result in a condition of intoxication.
“Serious impairment of a body function” includes, but is not limited to, one or more of the following:
- “Loss of a limb or loss of use of a limb.” MCL 257.58c(a).
- “Loss of a foot, hand, finger, or thumb or loss of use of a foot, hand, finger, or thumb.” MCL 257.58c(b).
- “Loss of an eye or ear or loss of use of an eye or ear.” MCL 257.58c(c).
- “Loss or substantial impairment of a bodily function.” MCL 257.58c(d).
- “Serious visible disfigurement.” MCL 257.58c(e).
- “A comatose state that lasts for more than 3 days.” MCL 257.58c(f).
- “Measurable brain or mental impairment.” MCL 257.58c(g).
- “A skull fracture or other serious bone fracture.” MCL 257.58c(h).
- “Subdural hemorrhage or subdural hematoma.” MCL 257.58c(i).
- “Loss of an organ.” MCL 257.58c(j).
WHAT DOES IT MEAN TO BE THE “FACTUAL CAUSE” OF A SERIOUS IMPAIRMENT OF A BODY FUNCTION?
In People v Schafer, 473 Mich 418; 703 NW2d 774 (2005), the Michigan Supreme Court overruled its prior ruling in People v Lardie, 452 Mich 231; 551 NW2d 656 (1996) where it previously determined that the defendant’s intoxicated driving must be a substantial cause of the victim’s death for prosecutions under MCL 257.625(4)(DUI causing death). “The statute requires that the defendant’s operation of the motor vehicle, not the defendant’s intoxicated manner of driving, must cause the victim’s death.” Schafer, 473 Mich at 422. The court recognized that the Legislature’s intent was “to deter the gravely dangerous conduct of driving while intoxicated”, regardless of whether intoxication changed the manner of operation of the vehicle. Id. at 434. The Michigan Supreme Court later held in People v Derror, 475 Mich 316; 715 NW2d 822 (2006) that Shaefer’s holding applies to MCL 257.625(5)(DUI causing serious impairment of bodily function) as well.
What does it mean then to “cause” serious impairment of a bodily function to sustain a conviction? The Michigan Supreme Court explained in Shaefer that the intoxicated person’s operation of the motor vehicle must be both a factual cause and a proximate cause of the victim’s injuries. Id. at 435. Factual cause requires a showing that “but for” the defendant’s conduct, the result would not have occurred. Id. at 435-436. “Absent defendant’s operation of the vehicle, the collision would not have occurred.” Id. at 445. In contrast, “[f]or a defendant’s conduct to be regarded as a proximate cause, the victim’s injury must be a ‘direct and natural result’ of the defendant’s actions.” Id. at 436 (citation omitted). There must be evidence “that the victim’s death [or injury] was the direct and natural result of defendant’s operation of the vehicle.” Id. at 445. In making the determination regarding proximate cause, “it is necessary to examine whether there was an intervening cause that superseded the defendant’s conduct such that the causal link between the defendant’s conduct and the victim’s injury was broken.” Id. at 436-437. Reasonable foreseeability is the “standard by which to gauge whether an intervening cause supersedes, and thus severs the causal link[.]” Id. at 437. If the intervening cause was reasonably foreseeable based on an objective standard of reasonableness—like ordinary negligence—then the defendant’s conduct will be considered a proximate cause. Id. If the intervening cause was not reasonably foreseeable, like gross negligence or intentional misconduct, “then generally the causal link is severed and the defendant’s conduct is not regarded as a proximate cause of the victim’s injury or death.” Id. at 437-438.
In People v Derror, 475 Mich 316; 715 NW2d 822 (2006), the Michigan Supreme Court further held that, for prosecutions for DUI causing serious impairment of a bodily function where the defendant had any amount of a controlled substance in his or her body contrary to MCL 257.625(8), the prosecution is not required to prove that the defendant knew he or she might be intoxicated.
“MCL 257.625(5)… punish[es] for the operation of a motor vehicle causing death or serious impairment of a body function in violation of subsections 1, 3, and 8. Here, Derror operated a motor vehicle causing death and serious impairment of body function in violation of subsection 8. Schaefer would seem to require the prosecution to prove that Derror voluntarily decided to drive, knowing that she had consumed an intoxicating agent and might be intoxicated. The plain language of MCL 257.625(8) does not require the prosecution to prove beyond a reasonable doubt that a defendant knew he or she might be intoxicated. MCL 257.625(8) does not require intoxication, impairment, or knowledge that one might be intoxicated; it simply requires that the person have “any amount” of a schedule 1 controlled substance in his or her body when operating a motor vehicle. We thus clarify Schaefer and hold that, in prosecutions involving violations of subsection 8, the prosecution is not required to prove beyond a reasonable doubt that a defendant knew he or she might be intoxicated.” Derror, 475 Mich at 334.
However, the Michigan Supreme Court held in People v Feezel, 486 Mich 184; 783 NW2d 67 (2010) that the Derror decision is overruled to the extent that it applies to certain marijuana metabolites that may not have an intoxicating offense anymore:
“We hold that 11-carboxy-THC is not a schedule 1 controlled substance under MCL 333.7212 and, therefore, a person cannot be prosecuted under MCL 257.625(8) for operating a motor vehicle with any amount of 11-carboxy-THC in his or her system. As a result, Derror was wrongly decided, and because the doctrine of stare decisis supports overruling Derror, we overrule Derror to the extent that it is inconsistent with this opinion.” Feezel, 486 Mich at 205.
Finally, the Michigan Supreme Court held in People v Koon, 494 Mich 1; 832 NW2d 724 (2013) that, for a driver possessing marijuana in his or her system under the Michigan Medical Marijuana Act (MMMA), there has to be a showing that the marijuana in the patient’s system had an effect on the person’s driving:
“The immunity from prosecution provided under the MMMA to a registered patient who drives with indications of marijuana in his or her system but is not otherwise under the influence of marijuana inescapably conflicts with the Michigan Vehicle Code’s prohibition against a person driving with any amount of marijuana in his or her system. When the MMMA conflicts with another statute, the MMMA provides that “[a]ll other acts and parts of acts inconsistent with [the MMMA] do not apply to the medical use of marihuana….” Consequently, the Michigan Vehicle Code’s zero-tolerance provision, MCL 257.625(8), which is inconsistent with the MMMA, does not apply to the medical use of marijuana. The Court of Appeals incorrectly concluded that defendant could be convicted under MCL 257.625(8) without proof that he had acted in violation of the MMMA by “operat[ing] … [a] motor vehicle … while under the influence” of marijuana. If defendant is shown to have been under the influence of marijuana, then the MMMA’s protections will not apply, and the prosecution may seek to convict defendant under any statute of which he was in violation, including MCL 257.625(8)… In sum, we conclude that the MMMA is inconsistent with, and therefore supersedes, MCL 257.625(8) unless a registered qualifying patient loses immunity because of his or her failure to act in accordance with the MMMA.” Koon, 494 Mich at 7-8.
PENALTIES FOR DUI CAUSING SERIOUS IMPAIRMENT OF A BODY FUNCTION
A person convicted of a DUI causing death under MCL 257.625(5)(a) is guilty of a felony punishable as follows:
- A fine not less than $1,000.00 but not more than $5,000.00 or up to 5 years in state prison, or both.
- Possible vehicle forfeiture under MCL 257.625n (if not forfeited, the vehicle must be immobilized).
- 6 points added to your driving record.
- Operator’s license revoked for at least one year but up to five years.
If the violation occurs while the person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, and within 7 years of a prior conviction, then the penalty is enhanced as follows under MCL 257.625(5)(b):
- A fine not less than $1,000.00 but not more than $5,000.00 or up to 10 years in state prison, or both.
- Possible vehicle forfeiture under MCL 257.625n (if not forfeited, the vehicle must be immobilized).
- 6 points added to your driving record.
- Operator’s license revoked for at least one year but up to five years.
IF YOU ARE CHARGED WITH DUI CAUSING SERIOUS IMPAIRMENT OF A BODILY FUNCTION, YOU SHOULD CONSULT WITH A SKILLED CRIMINAL DEFENSE LAWYER IMMEDIATELY
When someone is seriously injured at the hands of a drunk driver, the police and prosecutor will locate and attempt to punish the offender to the fullest extent of the law, so you cannot afford anything less than the best defense in your corner. There are defenses that can be asserted which can result in a reduction or even dismissal of the charges which include, but are not limited to, the following:
- EVIDENCE OF INTOXICATION OR IMPAIRMENT NOT OBTAINED PROPERLY: Police officers obtain evidence of operating under the influence by requiring the suspect to either submit to blowing into a breathalyzer machine or having blood drawn. Specific procedures must be followed for either method. For the breathalyzer, evidence obtained can be challenged if the proper steps were not followed or the machine was not properly maintained, calibrated, or tested. If there are significant defects in either process that calls into question the quality of the evidence, then there is a possibility the results could be suppressed from admission at trial which may lead to a dismissal.
- DEFENDANT NOT OPERATING THE VEHICLE: Can the prosecutor prove that the suspect was actually driving the vehicle if law enforcement comes on the scene and they can only find an intoxicated person outside of the vehicle? Did someone else drive the vehicle and then flee the scene? If operation of the vehicle by the defendant can’t be proven beyond a reasonable doubt, then the defendant should be found not guilty.
- INJURY DID NOT RESULT IN SERIOUS IMPAIRMENT OF A BODILY FUNCTION: Just because the victim has an injury from a DUI crash doesn’t mean that he or she suffered “serious impairment of a bodily function”. Expert medical testimony may be introduced at trial to show that the victim’s impairment is not permanent and, therefore, is not subject to prosecution under this particular statute.
- DEFENDANT NOT THE FACTUAL CAUSE OF VICTIM’S SERIOUS IMPAIRMENT: A skilled defense attorney can retain an accident reconstruction expert to analyze the evidence and determine how the collision happened. A conviction can’t be sustained if the prosecutor cannot prove beyond a reasonable doubt that the defendant was the factual cause and proximate cause of the serious impairment of a bodily function.
Even if the evidence against you is strong, a skilled defense lawyer may be able to work out a resolution to your case that results in a guilty plea to a reduced charge or a sentencing agreement that is better than the risks of going to trial. You only get one chance to defend your case properly so start with the best legal representation from the very beginning.
If you or a loved one is charged with any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
