Punishment for MI DUI

If you have been arrested for drunk driving in Michigan, one of the first things on your mind is “what will happen to me?”  In other words, “what are the penalties for a Michigan DUI?”

Well, as you may have guessed, there are very few absolutes when it comes to punishment, and even figuring out what law applies can be a great challenge.  At the Barone Defense Firm other lawyers often ask us about sentencing issues such as vehicle immobilization, mandatory incarceration, hours of community service, ignition interlock and the like.

To help lawyers and clients figure out what punishment to expect after a Michigan DUI, we’ve created the following charts which you may download and print:

1. OWI 1ST Flow Chart Barone
2. OWI 2nd Flow Chart Barone
3. OWI 3rd Flow Chart Barone
4. OWI Under 21 Flow Chart Barone

In looking at these charts keep in mind that they’ve not been updated to include the Michigan super drunk/extreme drunk driving law that goes into effect October 31, 2010.

Also, keep in mind that these charts where prepared for use by judges and lawyers.  If you have been arrested for a DUI in Michigan, and are facing a possible conviction, then it’s best to review this charts with a Michigan DUI lawyer.

Finally, when reviewing these DUI penalties charts consider the fact that there is a great deal of discretion regarding punishment.  Because of this the lawyer that you choose can make a big difference in the eventual outcome.  Consequently, it’s important to choose a top Michigan DUI lawyer to represent you.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

Michigan has adopted sentencing guidelines that apply to all felony cases including felony drunk driving.  In Michigan, felony drunk driving with injury or death is a “crime against the person” and a class “C” felony, and is punishable by up to 15 years.  There is no minimum sentence for these more serious drunk driving offenses.

Michigan’s other felony drunk driving laws[i] require that an individual convicted of a violation after two prior convictions that is sentenced to a probationary term must be also sentenced to no less than 30 days in the county jail, with 48 hours being served consecutively.

This would be considered a “standard” felony drunk driving in Michigan, which is a “crime against public safety” and a class “E” felony.[ii] This is the category and class that will apply to all third offense drunk driving cases in Michigan.

In most instances, felony drunk drivers who have not injured or killed anyone will have sentence guideline ranges of either 0-6 or 0-9.  Certain things, like prior criminal offenses of any kind, and very high breath or blood test results, will increase the guidelines.  The same is true of “habitual offenders,” that is, those who have more than one felony conviction of any kind.

Bear in mind that the Michigan drunk driving law requires a minimum sentence of 1-5 years, with the first 30 days served behind bars, at least 48 hours of which must be consecutive.  So, even though the guidelines say, for example, 0-6, you must still serve at least 30 days in jail.

If you are facing a felony drunk driving charge then it is best to hire an experienced lawyer who can help you obtain the best possible sentence.  At the Barone Defense Firm we have handled hundreds of felony cases, and typically handle 20-30 per felony drunk driving cases each year.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

Sentencing Guidelines Addendum:

As indicated in the sentencing manual itself: [I]n general, the statutory sentencing guidelines apply only to felony offenses for which the penalty prescribed is an indeterminate sentence, and the sentencing court retains discretion in imposing an offender’s sentence. That is, the guidelines are not applicable to offenses for which the applicable statute establishes a mandatory determinate penalty or a mandatory penalty of life imprisonment for conviction of the offense. [iii] Consequently, the sentencing guidelines will only apply to Michigan felony drunk driving.

Additionally, the statutory sentencing guidelines apply to listed felony offenses[iv] that were committed on or after January 1, 1999.[v] The statutory sections listing the felony offenses to which the guidelines apply contain brief descriptions of the felonies listed there “for assistance only.”[vi] The language contained in the statute defining the felony offense itself governs application of the sentencing guidelines.[vii] The statutory sentencing guidelines in effect on the date the offense was committed govern the calculation of an offender’s minimum sentence.[viii]

When an offender is convicted of multiple offenses, a sentencing information report (SIR) should be completed for the sentencing offense that has the highest crime class. In instances where the sentences imposed will be served consecutively, an SIR should be completed for every crime that will be served consecutively.

[ii] 2009 Michigan felony list by statute number

[iii] MCL 769.34(5).

[iv] MCL 777.11 to 777.19

[v] MCL 769.34(2).

[vi] MCL 777.6; MCL 777.11 to 777.19

[vii] MCL 777.6.

[viii] MCL 769.34(2).

zero tolerance drug

There are four ways for a prosecutor in Michigan to prove that you were drunk driving or “OWI” (operating while intoxicated).  Two of them involve alcohol (OUIL/UBAL) and two of them involve drugs (OUID/OWPD).

To show that a person was OWI due to OWPD (operating with presence of drugs), a prosecutor must only show that certain “schedule 1” drugs were present, in any amount, in the driver’s blood.  Because the prosecutor need not show that these drugs caused intoxication or impairment, these schedule 1 drugs are thought of as “zero tolerance” drugs.

Schedule 1 includes “marijuana,” which is defined by Michigan law as:

(3) “Marihuana” means all parts of the plant Canabis sativa L., growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted there from, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.

Of course when determining if someone has used marijuana before driving the police don’t look for the marijuana itself, but instead, have the blood inspected for evidence that marijuana has been used.  The active ingredient in marijuana is THC.  As THC breaks down inside the body, 11-carboxy-THC is produced.

In the Michigan case of People v. Derror, the defendant was found guilty of OWI causing death based only on the presence of 11-carboxy-THC. The issue in this case was whether or not 11-carboxy-THC was a “derivative” of marijuana. The Derror case involved two companion cases, and in both cases, blood tests only revealed the presence of the metabolite 11-carboxy-THC. The active and impairing THC was not found in either of the driver’s blood samples.

The Derror court ruled that 11-carboxy-THC was actually a derivative rather than just a metabolite of marijuana, and based this decision in part on expert testimony by a state witness and in part on an online medical dictionary, which indicated that a derivative is that “which is produced by modification of something preexisting.”  The court further found that one may be convicted of drunken driving causing death based only on the presence of this derivative.

The Michigan Supreme Court, in People v. Feezel, No. 138031 (June 9, 2010) has ruled that 11-carboxy-THC is not a derivative of marijuana, and in so doing, has completely overruled People v. Derror,  475 Mich 316, 715 NW2d 822 (2006).

Feezel looked at several factors including:

1. Strict Interpretation – The fact that schedule 1 does include the word “derivative” but does not include the word “metabolite.”
2. Effect on Existing Law – Other criminal statutes do specifically include the word “metabolite,” and legislatures are presumed to know and to have considered the effect on all existing laws when enacting new legislation.
3. Federal Law – The Michigan definition of marijuana is identical to that contained in federal statutes, and that by failing to construe the applicable portions of the Public Health Code to achieve consistency with federal law, and by failing to examine the statute in light of other relevant statutory provisions, the Derror majority failed to effectuate the Legislature’s intent.
4. The Michigan Medical Marihuana Act – Under the majority’s interpretation of the statute in Derror, however, individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired. Indeed, in this case, experts testified that, on average, the metabolite could remain in a person’s blood for 18 hours and in a person’s urine for up to 4 weeks.

Feezel has reversed Derror, and in doing so, has removed 11-carboxy-THC from the list of “drugs” that can be considered zero tolerance.  In some small way therefore Michigan’s zero tolerance law has become slightly more tolerant to marijuana.  Thus, while still a zero tolerance drug; this Feezel decision also has the effect of making the defense of those accused of OWI based on marijuana more feasible than previously thought.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

The Rochester Post has just reported that the number of people drunk driving in Rochester Michigan is down significantly this year.  According to the article:

Data collected over the past two years shows a pattern of decline for drivers caught operating while intoxicated, said Rochester Police Chief Steve Schettenhelm. According to the city’s records, there were 161 such arrests in 2008, an average of about 13 per month. In 2009, there were 132, or approximately 11 per month. As of this month, there have only been 31 in 2010, which comes out to about six per month.

The article is light on explanations for the decrease in drunk driving in Rochester Michigan:

“Arrests are down so far this year. There can be a number of reasons for this,” he said. “Traditionally, arrests pick up in the summer months. So we are down some for the year, but we will have to wait and see if this is a consistent trend.

“The economy may have an effect on the number of people who are out drinking and driving,” he said.

Rochester Detective Paul Matynka said that because of the city’s nightlife amenities, drunken driving arrests generally increase over the weekends.

There is also a claim that although the arrests are down, it has no impact on the police budget.

Schettenhelm said that while the Rochester Police Department does get a percentage of the court fines paid by drunken driving offenders, the decrease in arrests over the past year and a half hasn’t affected revenues.

“We do receive some funds from the court in terms of fines … (but) the money is not really a consideration, considering the total police budget,” he said.

Previous posts have addressed this issue, and suggest that there are many possible causes for fewer Michigan DUI arrests.  For an article discussing the decrease in DUI arrests in Michigan in detail, and offer several explanations, please see:

• Michigan Drunk Driving Arrests Continue Yearly Decline

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

Drunk Driving

If you are an out-of-state driver accused or convicted of a Michigan DUI, understanding what driver license sanctions might apply can be a tricky business.  There is a second question you may have after a Michigan DUI conviction, which is “when will the driver license sanctions be applied?”

Because of our federalist system, Michigan can only impose a DUI driver license sanction against the offenders “fictional” Michigan driver license.  However, nearly every state has some type of reciprocity with Michigan, and once the home state learns of the Michigan DUI conviction, they are bound to impose a driver license sanction of their own.

What makes this issue particularly tricky is that your home state sanction may be the same as that imposed in Michigan or it may be significantly greater.  For example, first time offenders in both Illinois and Massachusetts will both receive a one year suspension in their respective home states.  In both instances hardship licenses are available, but the administrative process to obtain the hardship license may take several months.

Success is also not guaranteed.  Consequently, once your home state learns of the Michigan DUI conviction, and imposes their own sanction, you may be without driving privileges for several months.

When discussing this issue with your top DUI lawyer it is very helpful to understand how convictions might be reported by the various states.  If you are licensed in Illinois and arrested for a Michigan DUI please see this article to learn about how a Michigan DUI will impact an Illinois driver license.

The Three Reporting Systems Used Nationally:

There are three systems for reporting suspensions.  The National Driver Registry (NDR) is a passive database to which suspensions are reported but not necessarily sent to the home state.  The Non-Resident Violator Compact (NRVC) and the Driver License Compact (DLC) are law for reporting suspensions directly from one state to another.  It works this way.

If an adverse action such as a suspension or revocation due to a Michigan DUI  occurs, including an administrative suspension, it is reported to the NDR by the state in which it occurs.  If it is an action for which there is no direct state reporting law, (such as some administrative suspensions) that is the only place it is reported.

The home state, however, does not automatically check the registry.  Usually it is only checked if some license action occurs in the home state such as renewal or a violation.  If they find the Michigan DUI conviction at this time then they will usually suspend your license.  But, a Michigan DUI conviction is not automatically found.  Various government agencies also check the NDR in some instances (FAA, USCG, etc.).

Upon a Michigan DUI conviction resulting in a suspension, most states will report that suspension to both the home state pursuant to authorization under the DLC, and also to the NDR.  You must be sure to clear the suspension in every state in which one exists before the home state will reinstate because they check the NDR when reinstatement is sought.

The NRVC is a uniform set of laws for handling tickets and failures to appear from state to state.  When a person gets a ticket in another state and doesn’t appear, the suspension is reported to the home state under the NVRC, and to the NDR.  The home state then suspends until the other suspension is clear.

The difference is that the suspensions are not automatically reported to the home state.  Often you can let an administrative suspension run in your state and the home state license remains active.  If you can then use a top DUI lawyer to beat the charge in your state you can clear the administrative issue and the home state is none the wiser.  There are other permutations, but that is a common one.

Using this Information:

What is also clear from this is that three things must happen before the out-of-state conviction results in the in-state sanction.

1. First, Michigan must in some way report the conviction;
2. Second, the conviction must be observed and recognized as “substantially similar” by the home state; and
3. Third, the home state must therefore impose a sanction.

Because of the complexity of the out-of-state licensing issues, you are well advised to retain a top DUI lawyer to help you understand the consequences of a conviction.  Without such information, a plea of guilty can never be totally “knowing and understanding,” It is also true that without such information you can never properly access the risks associated with the decision to proceed to trial.

One final thought.  If your Michigan license is “restricted” this is really a suspended license with restricted driver license privileges.  Don’t think that because your “Michigan” license was “restricted” you can avoid sanctions in your home state.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

Mr. Barone would like to the thank Wayne from Maine, one of Maine’s top DUI lawyers, for his assistance with this article.