MICHIGAN DUI PUNISHMENTS – WHAT COULD HAPPEN IF YOU ARE CONVICTION OF DRUNK DRIVING IN MICHIGAN
If you or someone you care about has been charged with drunk driving, then you’ll probably want to know "what's the worst case scenario” if there’s a conviction?
In this regard, there are basically three different things or catagories of things that can happen. These three categories are:
1. Judicial Sanctions:
“Judicial” punishments are those imposed by the court, and include jail time, probation, fines and costs, and vehicle immobilization. Here is a more detailed explaination:
Note: The explanations that follow are adopted from Chapter 16 of Mr. Barone’s Book: The DUI Book - A Citizen’s Handbook on Fighting a Drunk Driving Charge. For the complete Chapter, order the book today!
16.3.5. Incarceration. This means time in custody, whether in a jail, under house arrest or some other form of detention. It means the State controls your freedom of movement. If convicted of an OWI offense, many jurisdictions require that deputies lead you in handcuffs from the courtroom if the sentence includes jail time. Some courts, however, will delay imposition of the jail sentence. For example, if your incarceration is going to be particularly disruptive to your employment, your attorney can request that you not begin your jail term until the following Friday, allowing you to “tie up your affairs.” This request can always be made, but is not always granted. A judge also may or may not allow you to serve your jail sentence on “work release.” Also, an appeal may delay imposition of jail time.
You will receive credit for any time previously served as a result of your arrest and inability to make bond, but the judge is not required to give you credit against your sentence for any house detention served as a condition of your bond (such as where you are on a home alcohol tether), or for any time served at an in-patient substance abuse treatment center.
16.3.5.1. Maximums and minimums. For an OWI (which is typically a misdemeanor), the maximum period of incarceration is 93 days for a first offense and twelve months for a second offense. However, if convicted of multiple criminal counts from a single driving episode, one or more of which are OWI offenses, the total amount of incarceration can extend (due to consecutive sentences being “stacked”) to more than a year, even if all counts are misdemeanors. If this is your third OWI offense within 10 years your repeat OWI offense is a FELONY, and the statutory maximum period of incarceration is five years in jail. Enhancement periods between OWI offenses are either 7 or 10 tears, and are set for by Michigan statute. Prior OWI offenses that are outside these enhancement periods cannot be used to increase the statutory minimum sentence, but can still be considered by the judge in determining your sentence, and might still result in increased periods of incarceration.
There is no minimum amount of time you must spend incarcerated if convicted of a first OWI offense. If this is your second OWI conviction within 7 years, then the minimum period of incarceration is 5 days. There is also an alternative minimum sentence for second offenses only of 30 to 90 days of community service. If this is your third OWI, then the minimum sentence is 30 days, at least 48 hours of which must be served consecutively. How much additional time you have to serve (beyond what was served when arrested) at the time of sentencing depends on these statutory minimums and the judge’s sentencing practices. Most jurisdictions give credit for time in jail on the night of your arrest.
16.3.5.2. Alternatives to regular jail time. There may be alternatives to regular jail time that a judge might consider in your case. However, because sentencing alternatives tend to be very jurisdiction specific you should always consult with your OWI specialist regarding the specific alternatives that may be available in your particular court. Any “alternative” is at the discretion (choice) of the judge, not your defense attorney. If sentenced to one of these alternatives, the period of incarceration is typically longer than what might have been required for “regular” jail time. This period is intended to offset the special benefit of obtaining the alternative sentence and is sometimes thought of as necessary by a judge who thinks he or she must always be mindful of the need to adequately punish the wrongdoer.
All of these alternatives to jail time have significant “compliance” requirements and “accountability requirements.” For example, a judge may require phone monitoring or order that an ankle bracelet be utilized to make sure that the conditions imposed are in fact followed. Another option is for a judge to require regular drug and alcohol screening. A violation of any of these requirements or any of the criteria imposed likely means that you violated the terms of your sentence and consequently a loss of these privileges. Such violations usually result in significant jail time being added to the existing sentence.
Another sentencing alternative might be “work-release.” In this case, you are allowed some time off on a daily or regular basis so that you can go to work, but must report to the jail to be kept locked up every evening. Defendants who are allowed this option will typically be tested regularly for alcohol and drugs as a condition of this type of incarceration. Plus, the rules of the work release facility are strict. A court may allow work release for defendants who are otherwise at low risks to commit further crimes and who have regular jobs that would likely be lost if they were to serve regular jail time. Many judges try not to harm your dependants, if possible.
A weekend jail sentence is also sometimes available. With this alternative you are allowed to work all week, and stay at home all week, then report only to the jail for service of jail time on the weekends. This is very uncommon for OWIs due to the limited bed space at jails throughout Michigan.
House arrest is another kind of alternative to formal incarceration. In this situation, you must physically stay in your home where you remain subject to frequent and random confirmation by the State. You might be required to wear a form of electronic monitoring device such as an ankle bracelet to verify your whereabouts. Other jurisdictions use technology such as Vis-a-tel (phone camera plus breathalyzers) to assure compliance. Others use a device that continuously monitors sweat from your skin to detect any use of alcohol. This device is known by the acronym “SCRAM,” which stands for secure, continuous, remote, alcohol monitor. As with other forms of incarceration alternatives, a positive test for alcohol while wearing this device usually means a return to jail for a now longer period of incarceration.
Finally, there are a variety of court-specific treatment plans or “drug courts” in which you may qualify to participate. These programs stress addiction treatment over punishment. The idea here is that rehabilitation in the form of sobriety is the more important or beneficial and will protect society better in the long run.
16.3.6. Fines. A fine is a monetary punishment that is paid to the court either immediately or over a period of time. Minimum and maximum fines are established by statute, although the judge usually has some discretion in the amount of the fine within this specific range. The amount of these minimums and maximums depends on whether this is your first OWI or if there are prior OWI convictions within the 7 and 10 year enhancement periods.
If the fine cannot be paid all at once, then you may be able to make payments over time. Keep in mind however that the Michigan court rules require all fines and costs to be paid at the time of your sentencing.
If you make every good faith effort to pay the fine, yet fail due to economic misfortune or family obligations, then the judge might convert the fine to an appropriate number of community service hours. Do not count on this concession because any modification to your sentence is strictly at the judge’s discretion. Be sure to contact your attorney (or probation officer) if you need to request such a modification.
16.3.7. Probation. Probation is a chance to remain out of jail but on “community supervision. Significant and restrictive terms and conditions are always added to and are a part of your probationary sentence. For OWI offenses, a typical condition would be the non-use of alcohol or non-prescription drugs. A sentence to probation is given by a judge as an alternative to ordering that you be sent to jail or prison. Another way to end up on probation would be when you are placed on probation following any jail time imposed. A violation of any of the terms or conditions to your probation will usually result in your being sent to jail for all or part of the remaining “probation” term. Repeat criminals are sometimes not eligible for probation. Probation is not the same as "parole," which is a term describing “conditional” freedom under certain restrictions given to convicted felons at the end of their imprisonment.
Probation can be either “reporting” or “non-reporting.” Reporting means you must maintain regular contact. Usually this means physical, in person contact with your probation officer, although the contact can occasionally be made by phone or by mail. Non-reporting means you are officially still under supervision by the court but do not have to make this regular contact with a probation officer. Some reporting probation can be converted to non-reporting after a period of time such as where the conditions specified by the court are met.
“Intensive probation” is a term used to describe very strict and harsh reporting and compliance. Many courts are starting to utilize intensive probation to control every aspect of a repeat OWI offender’s lives. In this way, some offenders are essentially set up to fail because compliance with all of these terms is so extremely difficult for them.
16.3.7.1. Conditions of probation. Since jail time is nearly always a very real possibility for all OWI offenders, probation with no jail time should be thought of as a gift given by the judge. Consequently, probation is a non-jail alternative only so long as you comply with all of the many terms and conditions imposed by the judge. These terms and conditions usually include that you pay fines and costs and comply with the other terms and conditions imposed such as community service, alcohol education or treatment, complete non-use of drugs and alcohol, maintain or seek employment, and not violate any criminal laws while on probation. Of course, you must also report regularly to your probation officer.
16.3.7.2. Community service. This part of the probation is done under supervision by the probation department which assigns you to various public or non-profit service programs. It will be up to your probation officer to approve the type of service done. While it is discretionary, almost any public or non-profit program may be accepted, such as church, school or community programs. Before you begin such community service, however, you should make sure such programs are pre-approved by the probation officer. Otherwise, your long hours may not count toward the sentence.
The types of service typically accepted range from picking up trash, to building homes for the poor, to working in a state facility. Just in case a question arises from the court, it is very important for both you and the probation officer to independently keep track of the hours spent. Written verification, signed by the community service provider is almost always mandatory.
16.3.7.3. Probation supervision fee. In addition to fines and costs, you will also be required to pay a monthly probation supervision fee. These fees typically range between $30 and $50 per month. Regardless of the reason, a failure to pay these fees can result in the court revoking your probation and ordering you to spend all or part of the remainder of your sentence in jail.
16.3.7.4. Restitution. Restitution is the legal term identifying the repayment to a “victim” of a crime for any costs incurred as a result of the criminal behavior. For example, where an accident is caused by an OWI defendant, the court may order that the monetary value of any loss be paid back by the defendant. In OWI cases, restitution also may include lost wages for an injured person, or medical bills, or both. Restitution for property damage is also a common “sentence” condition. Restitution may be a condition of granting you probation or giving you a shorter sentence than otherwise.
Although not strictly restitution, Michigan law also provides that OWI defendants be required to reimburse the costs of prosecution. These costs typically range between $200 and $400, and are payable directly to the arresting police department. There have also been instances when prosecuting attorneys have attempted to “tax” their costs onto the defendant’s “legal bill” to the court, but this is pretty unusual.
16.3.8. Probation revocation. If you violate any of the terms of your probation, the probated sentence can be revoked. All or part of this revocation is done at a “show cause” hearing before the judge who sentenced you. At this hearing, evidence of the violation must be presented. If you dispute this violation, you can also present evidence or testimony at this hearing. The amount of proof at these probation revocation hearings is much less than for a criminal conviction. “Preponderance of the evidence” or enough evidence to be “probative” of your guilt, rather than “proof beyond a reasonable doubt” is all that is required. If you lose this hearing, you may spend the remaining time of your probated sentence in jail. It is also possible for you to spend more time than with your original sentence. As with most sentencing issues, this determination is discretionary with your judge.
16.4. Judge sentences – issues to consider. Judges are supposed to know and follow the law. Every day, they are faced with people who are accused of breaking the law, and pass judgment on them. They see people accused of OWI every week, if not every day. An experienced OWI lawyer knows each judge’s tendencies and “peculiarities,” and on this basis, may recommend to you that you have a substance abuse evaluation performed by a competent therapist, or that you begin attending AA meetings or start community service. In fact, your attorney will probably recommend these things long before he or she has accessed your likelihood for success at trial.
While you may believe that this type of activity is an admission of guilt, you should understand that this is being recommended because your attorney believes that it will have a positive influence on your case. In making such a recommendation, your attorney is considering what factors may influence the judge (if you are later convicted) to give you a more lenient sentence. The ultimate goal is to help you avoid the maximum penalty. When handing down a sentence, judges appreciate your “taking the initiative” to get treatment and to seek to “change your behavior.” Even though you may consider yourself not to be guilty of any crime, if you ultimately are convicted, prior preparation may save your job or may mean the difference between significant jail time and probation.
Becoming involved in treatment can also have a positive influence on plea negotiations. Prosecutors are much more likely to agree to a significant reduction or some other unusual result if they believe that you are making an earnest effort to address any underlying drug or alcohol abuse problem. Both judges and prosecutors are concerned with protecting society and the perception that they are being soft on drunk drivers. Treatment can often be the cover they need to justify an atypically lenient plea or sentence bargain.
2. Driver License Sanctions:
16.3.9. License suspension. As a part of the 1999 changes to Michigan’s drunk driving laws, the court no longer has the authority to suspend your drivers’ license. Now, the driver license sanction is handled only and completely by the Michigan Secretary of State’s office. These sanctions are not “individualized,” meaning they are the same for everyone. The length and terms of any driver license sanction depends only on the number of alcohol convictions during the appropriate enhancement periods (7 and 10 years). The Secretary of State will also collect a “driver responsibility” fee of either $500 or $1000, and this amount is payable for the first two years after the conviction. The court may also require that an ignition interlock device be installed on any vehicle the defendant will drive. This type of device checks your breath alcohol before the vehicle can be cranked. The suspension or revocation of your license is mandatory. This is a relatively immediate and unchangeable function of Michigan’s statutes and is based solely on the number of OWI convictions. The judge is totally powerless to “grant” any type of limited driving privileges. After your conviction, the court will notify the Secretary of State. This is called “abstracting the conviction.” Once they learn of the conviction, they will then track your master driving record and impose the appropriate sanction. You will be notified of this sanction by mail. The Secretary of State notice will include a “to” and “from” date, and instructions on how to obtain or attempt to obtain driving privileges at the conclusion of the suspension or revocation period.
These driver license sanctions are imposed by the secretary of state, and not by the court. They are not discretionary, meaning there is no variation from person to person. The only thing that is considered is the number of prior convictions during the look-back period. The look-back period in Michigan is 7 and 10 years. If you have two convictions within 7 years then your license will be revoked for a period of one year. If you have two or more within 10 years, then your license will be revoked for a period of five years.
3. Collateral Consequences:
For many of our clients the most serious consequences are those that result from the conviction itself meaning they are not specifically imposed by any judge or by the secretary of state. Instead, collateral consequences occur simply because you have a DUI conviction or criminal conviction. These sanctions include the obvious increase in insurance premiums, but also include any effect a drunk driving conviction might have on your current or future life situation or employment. To really understand what these consequences might be you will need to discuss your particular circumstances with your attorney. You should also understand that drunk driving is a crime meaning that you will have a permanent life-time criminal record. This is because in Michigan a DUI crime cannot be "expunged" or removed from your record in any way.
There are many different life situations upon which a DUI conviction may impact. A short list of these includes the following:
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