Incarceration for Second Offense DUI Now Less Likely in Michigan

A new law in Michigan makes it somewhat less likely that persons charged with misdemeanor drunk driving, including first and second DUI offenses, will go to jail. This is because Public Act No. 395 of 2020, which was signed into law by Governor Whitmer on January 4, 2021, creates a rebuttable presumption against incarceration for most misdemeanor offenses, including most misdemeanor drunk driving offenses.  The effective date of the new law is March 24, 2021.

The new law amends Michigan Compiled Laws Section 769.5. Subsection 3 of this law indicates that there is a rebuttable presumption that a person convicted of a misdemeanor will be sentenced to a fine, or community service, or some other non-specified non-jail and non-probation sentence. The only circumstances under which a sentencing judge may depart from this presumption is if they state on the record “reasonable grounds” for doing so. The term “reasonable grounds” is not defined.

The law also provides that if the offense in question is punishable by both a fine and imprisonment, the court can impose one but not the other, or both. However, if the court does impose both a fine and incarceration, or just incarceration, then as indicated, the Judge must articulate on the record reasonable grounds for doing so.

What are Reasonable Grounds?

There is no firm definition of reasonable cause, but there is little doubt that it is a very low standard, even lower than the probable cause standard. Reasonable grounds are a “minimum factual justification” supported by “the requirement of articulable facts sufficient to justify the disputed action.”  See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968) and Geoffrey S. Kay, Whren v. United States: The Constitutionality of Pretextual Stops, 58 La. L. Rev. 369, 387 (1997).

How Does This New Law Impact First Offense Drunk Driving Cases in Michigan?

A first offense drunk driving, not involving serious injury or death, is punishable by up to 93 days in jail if the bodily alcohol level is below .17, and up to 180 days in jail if the bodily alcohol level is .17 or above or where a child under 16 years is in the car at the time of the offense.  It appears that for these cases the drunk driver can only be sentenced to a fine or community service or some other non-probationary sentence with no jail time whatsoever.  The only exception is where the Judge finds, and then indicates on the record, reasonable cause for imposing jail time.

As a practical matter most judges in Michigan do not impose jail time for a first offense drunk driving unless there are extenuating circumstances.  Even for those judges who do regularly impose jail time on a first offense drunk driving, such as Judge Kimberly Small in the 48^th District Court, the necessary showing of reasonable cause is a low burden. Consequently, this new law is likely to have little impact on the way judges’ sentence first offense drunk drivers.

How Does this New Law Impact Second Offense Drunk Driving Cases in Michigan?

The answer to this question requires an examination of the newly amended Michigan drunk driving statute found at 257.625. These amendments are discussed in our previous article entitled “Repeat Drunk Drivers Can Avoid Mandatory Minimum Jail Sentences Under New Michigan Law.”

Looking at both new laws together, it would appear that for a judge to incarcerate a second offense drunk driver, and not sentence them to an available specialty court program, they would need to state their reasonable grounds for doing so on the record.