A primer on Michigan Drunk Driving Laws [1]

Under the current state of Michigan law, one is considered to be driving while intoxicated when a driver's blood alcohol content (BAC) is .08 [2] and above, or, driving under the influence of alcohol (impaired driving) if her/his BAC is .07 and below.

A technical reading of Michigan’s statute on this so-called lower offense theoretically has a low limit of .02. That is to say, at least in this writer’s reading of Michigan’s drunk driving statutes, a person may be arrested for so-called impaired driving with a BAC as low as .02, technically. Seemingly ridiculous, maybe; but that is how Michigan law on the issue reads.

The penalties associated with these two types of offenses are essentially the same, generally punishable with up to 93 days in jail. How things use to work: It used to be the case that Michigan followed the often quoted two within seven and three with in ten rule. That is to say, a Michigan resident arrested on a first drunk driving offense was generally issued points against her/his driver’s license and issued certain minimal driving restrictions for a short period of time. If a Michigan resident were arrested on a second offense with seven years of the first, then another set of points was issued against a resident’s driver license and the license was revoked for a period of not less than one year. If the second offense occurred after the seven years had past since the first arrest, then, generally, the penalties associated with a first offense were imposed against the resident. Had a Michigan resident accumulated three alcohol-related offenses within 10 years of one another, regardless of when during the ten year period the previous two arrests occurred, then the resident would be charged with a felony with the potential of imprisonment. Otherwise abbreviated to two within seven or three within 10.

What’s new: As noted above, if a Michigan resident had gone 10 years or more since her/his arrest(s) for drunk driving, then the penalties for a first offense conviction again applied to the most recent arrest.

On January 3, 2007, Heidi’s law was put into effect. The law was championed by the parents of Heidi Steiner, a northern Michigan resident, who was killed by Danny Buffman. In 1991 Mr. Buffman plead no contest to the charge drunk driving causing death, and was sentenced to a ten year prison term. Later, in 2005, Mr. Buffman was arrested for drunk driving and was charged as a first time offender. The previous offense had been committed more than ten years since his most recent arrest in 2005. Mr. Buffman had, over the years previous to 1991, accumulated four previous convictions for drunk driving. But, because ten years had past since his last conviction, his most recent 2005 charge was treated as a first offense and was subject to the misdemeanor penalties associated therewith.

Under the current law, Heidi’s law, regardless of how much time has passed since previous convictions for drunk driving, as long as a resident had been conviction of two previous drunk driving charges, the resident will be charged with a felony and subject to up to five years in prison. It no longer matters if it’s been 10 years since two previous convictions, 20, 40, or whatever. The Michigan Department of the Secretary of State is now obligated to maintain lifetime driver records for anyone conviction of a drunk driving offense, and certain proof requirements previously imposed upon the prosecutor have been substantially reduced.

The net result to Michigan residents is that the penalties associated with drunk driving are going way up, and, it is no longer the case that “time heals all wounds.” Your driving record, with regard to drunk driving convictions, will now follow you for your lifetime. It is unclear what this writer exactly what this law intends to accomplish, other than creating more felons.

According to the Bill Analysis published on October 4, 2006, this bill is expected to have an indeterminate fiscal impact on State and local government because it is unknown whether any intoxicated driving behavior modifications as a result of the bill would outweigh the creation of a larger group of offenders eligible for a felony conviction. To the extent that the bill would increase felony convictions for drunk driving, the State would incur increased costs of felony probation at an annual average cost of $2,000, as well as the cost of incarceration in a State facility at an average annual cost of $30,000. To the extent that the bill would increase sentences to jail, local governments would incur increased costs of incarceration in local facilities, which vary by county. To the extent that the bill would result in an increase in offenders eligible to use treatment options and jail diversion programs through the felony drunk driver jail reduction and community treatment program in the Office of Community Corrections (OCC), the funding provided by the OCC to the Community Corrections Advisory Boards would provide for a lower proportion of these offenders. The boards are reimbursed by the State for this program at a rate of $43.50 per diem, with a total of $2,097,400 appropriated for the program for fiscal year 2006-07. Additional penal fine revenue would benefit public libraries.

Further, there is no data to indicate how many offenders would be convicted of a third or subsequent offense of operating while under the influence (OUIL) or operating while visibly impaired (OWI) if the 10-year time period for prior convictions were removed. According to the September 2006 OCC Biannual Report, between April 2005 and March 2006, there were 2,790 offenders convicted of third-offense OUIL. Of these offenders, 721 were sentenced to prison, 286 were sentenced to jail, 1,618 were sentenced to a combination of jail and probation, 163 were sentenced to probation, and two received other types of sentences. According to the 2005 Michigan State Police Drunk Driving audit, in 2005, 143 offenders were convicted of third-offense OWI. In 2005, 49,435 offenders were convicted of misdemeanor OUIL and OWI under either State statute or local ordinance. In addition, according to the Michigan State Police Uniform Crime Report, in 2004, 48,439 individuals were arrested for driving under the influence of alcohol or narcotics in Michigan. Offenders arrested in 2004 may not necessarily have had their case heard in court during the same calendar year.

With that said, again, it is unclear what impact this new legislation will have on this State’s struggle economy. An increased incarceration rate for non-violent criminals seems to this writer to be an abuse of public funds. But, that commentary aside, this is the current state of Michigan law on third time offenders in drunk driving matters.

If you have been recently arrested on a drunk driving charge and need experienced legal help, you may contact the writer of this article Monday through Friday during normal business hours at (248) 524-1700. The Law Office of Norton T. Gappy, P.C. is located at 3525 Rochester Road, Troy, Michigan 48083, and offers experienced professional legal help in your time of need. Messages left are generally returned within a few hours.

References

[1] The information contained in this article is not meant to be used as a replacement for the advice of professional counsel. If you have a legal issue, it is always advised that you consult a lawyer.

[2] The Michigan statute with regards to the .08 BAC does have a sunset provision reverting the statute back to its previous .10 BAC limitation in October of 2013.