Criminal Law

The hands of a prisoner resting on the bars of a cell


The laws regarding drunken driving have stiffened over the last three decades. Society’s intolerance of the dangers attendant to drunk driving have led to many increases in the penalties for drunken driving. Equally important to the criminally accused, laws have changed to make it easier on prosecutors to convict drunk drivers.


In this article, we will look at the evolution and current standing of drunken driving laws.

Various Types of Drunk Driving

The drunken driving law has evolved from a blood alcohol content of 0.10 grams per 100 milliliters of blood to the current standard of 0.08 grams or more per 100 milliliters of blood to prove a person guilty of the misdemeanor of “operating while intoxicated”. MCLS § 257.625(1)(b).


Operating While Intoxicated: To convict a defendant of the per se drunken driving charge of “operating while intoxicated” the prosecutor must simply prove the accused was operating a motor vehicle on a highway or other place open to the public with an alcohol content of .08 grams or more per 100 milliliters of blood. People v Raisanen, 114 Mich. App. 840, 844, 319 NW2d 693 (1982); People v Kelley, 60 Mich. App. 162, 230 NW2d 357 (1975).


Alternatively, a prosecutor can convict a defendant of operating while intoxicated (OWI), MCL 257.625(1) without presenting direct evidence of his or her blood alcohol content. In the absence of blood-alcohol evidence, the prosecution must prove that the defendant was under the influence of alcoholic liquor, a controlled substance, medication, or a combination and that as a result of the drinking or drugs, was substantially deprived of normal control or clarity of mind and was unable to drive normally.


Operating While Visibly Impaired: A lesser charge of “operating while visibly impaired” exists under the same statute, although no set blood alcohol content is cited. MCLS § 257.625(3). Rather, operating while visibly impaired (OWVI), MCLS § 257.625(3) requires the prosecution to prove that the ingestion of alcohol, controlled substances, medication, or a combination reduced the defendant’s ability to operate a vehicle on a highway or other place open to the general public or generally accessible to motor vehicles. The defendant’s ability must be so reduced that they drove or operated with less ability than would an ordinary, careful, and prudent driver. This weakening or reduction of the ability to drive must be visible to an ordinary, observant person. People v Lambert, 395 Mich. 296, 305, 235 NW2d 338 (1975).


Drunk Driving Causing Death: A separate charge exists when a drunk driver kills a third party. “Drunk driving causing death”, MCLS § 257.625(4), or death caused by an OWI, OWVI, OWPCS or UBAL offense while operating a motor vehicle on a highway or other place open to the public. Failure to yield the right-of-way to an emergency vehicle resulting in the death of a police officer, firefighter, or other emergency response personnel is one of the “death caused by” offenses in MCLS § 257.625(4).


Drunk Driving Causing Serious Impairment of Body Function: Drunk driving causing serious body impairment, MCLS § 257.625(5); serious impairment of a body function caused by OWI, OWVI, OWPCS or UBAL. MCLS § 257.58c defines serious impairment of a body function as: (a) Loss of a limb or loss of use of a limb; (b) Loss of a foot, hand, finger, or thumb or loss of use of a foot, hand, finger, or thumb; (c) Loss of an eye or ear or loss of use of an eye or ear; (d) Loss or substantial impairment of a bodily function; (e) Serious visible disfigurement; (f) A comatose state that lasts for more than three days; (g) Measurable brain or mental impairment; (h) A skull fracture or other serious bone fracture; (i) Subdural hemorrhage or subdural hematoma; and, (j) Loss of an organ.


Zero Tolerance: Another drunken driving charge is the “zero tolerance” case for minors. Under MCLS § 257.625(6) it is a misdemeanor for a person under age 21 to operate a motor vehicle on a highway or other place open to the general public or generally accessible to motor vehicles if that person has any bodily alcohol content. Any bodily alcohol content is defined as an alcohol content of not less than 0.02 grams or more than 0.07 grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or any presence of alcohol within a person’s body other than what was consumed as part of a generally recognized religious service or ceremony.

When does a drunk driving become a felony?

Generally, most drunken driving charges under MCLS § 257.625 are misdemeanors. However, if there is a death or serious impairment of body function as a result of a drunk driver, then even a first time offender can be charged with a felony. In the absence of a death or serious impairment of body function, a defendant who has a prior drunk driving conviction within 7 years of the date of arrest can be charged with a felony if charged with “child endangerment” under MCLS § 257.625(7)(a)(ii).


Under MCLS § 257.625(25), a defendant with two or more prior convictions for drunk driving who is arrested again for drunk driving can be charged as a felony. Note: only one minor BAC conviction can be counted as a prior conviction. MCLS § 257.625(26).

Why does it matter?

Whether you are charged with a misdemeanor or a felony, the relevant issue is the penalty. Most drunken driving cases are misdemeanors with a maximum penalty of less than a year in jail. Felony convictions for drunken driving involve possible sentences over a year.


In addition to criminal penalties, the differences between misdemeanors and felonies come with different license sanctions from the Michigan Secretary of State. If you are convicted of a first-time drunken driving misdemeanor, then you likely will be able to retain some driving privileges. By contrast, if you are convicted of a felony, then you will not have a valid driver’s license. Besides license sanctions, any vehicle a defendant is driving when arrested for drunken driving is subject to immobilization.

Possible Defenses

There are several defense strategies for drunken driving cases. There are a few fundamental issues that may lead to the dismissal of drunk driving charges. The first is the “stop”. Any “stop”—defined as the pulling a driver over—is considered a Constitutional seizure. As such, any violation of the Constitution results in the dismissal of all evidence resulting from the stop as the “fruit of the poisonous tree.” People v Stevens, 460 Mich. 626, 597 NW2d 53 (1999). Many drunken driving cases are successfully defended by attacking the stop.


The next point of attack is whether the alleged drunken driver was “operating” a vehicle within the definition of the Michigan Motor Vehicle Code. To be guilty of “operating” while impaired, a driver must be “operating”. MCLS § 257.35a. There are a number of cases where a defendant has prevailed on a drunken driving charge because he or she was not operating within the definition of the statute.


There are countless other strategies that may apply in a given situation. For example, the successful challenge of a prior conviction may allow an accused to successfully defend a current felony charge for drunken driving. The facts of each arrest and the events giving rise to that arrest will dictate what is the right channel of defense.


If you have been charged with drunk driving, then you need quality legal representation. At Arnold E. Reed & Associates, P.C., we offer the highest level of ethical representation. We can help you maneuver the challenges of a drunk driving charge.