Will I get Probation for an Operating While Intoxicated Conviction in Michigan

The Michigan DUI Lawyers at the Barone Defense Firm had be advising our clients that if they were convicted of operating while intoxicated they should expect to be placed on a term of probation. However, in March 2021 the Michigan legislature passed new and amended laws that focused on Criminal Justice Reform, and specifically provided that non-serious misdemeanors should not be ordered to jail, nor ordered to probation.  Michigan Compiled Laws Sec. 769.5(3) further clarifies that the appropriate sentence for these non-serious misdemeanors would be a fine, community service, or other non-jail and non-probation sentence. On this basis one might assume, therefore,that a qualifying Michigan drunk driving charge would not receive probation.

This despite the fact that the statutory penalties for a first offense Michigan DUI could include a maximum fine of $700, 360 hours of community service, and other non-probation or non-jail alternatives that may include counseling or rehabilitative services, and other educational programs like a Victim Impact Panel.  The maximum period of probation would be 24 months of probation, and the maximum jail term would be 180 days if a High BAC, or 93 days in an OWI or Impaired Driving.

This criminal justice reform measure appears to address these statutory penalties to allow offenders to avoid the probation and jail aspects of the case.

Is an OWI a serious misdemeanor?

An Operating While Intoxicated, an Unlawful Blood Alcohol Content (UBAL) or an Operating While Visibly Impaired (OWVI), which are known as 625 offenses, are not considered serious misdemeanors on their face.  However, The William Van Regenmorter Crime Victim’s Rights Act, which was most recently amended in 2019, under MCL 780.811(1)(a) subsection (XIV) outlines the factors that would cause a 625 offense to be considered a serious misdemeanor.  An OWI would be considered a serious misdemeanor if the crime involved an accident that caused property damage or any physical injury, or if resulting in death or injury.

Do Michigan DUI offenders avoid probation if there is no property damage accident?

Not necessarily.  If there is no property damage accident the OWI would not be a considered a serious misdemeanor, however, the law has created a rebuttable presumption.  This means that although your offense may be considered non-serious the court may state on the record the reasonable grounds to overcome the presumption against probation and/or jail.  This is a subjective analysis by each individual judge.  The issue with subjective decision making is that there is no concrete set of factors for a judge to evaluate. Therefore, each Judge will evaluate each case differently, but there are some likely common considerations.

What are factors that a Judge will assess?

Similar to a probation pre-sentence investigation, a judge will evaluate any prior criminal history and history involving alcohol or controlled substances.  The judge will also factor in the defendant’s reported bodily alcohol content (BAC) on the particular case regardless of the actual plea or conviction.  The higher the BAC the more likely judge will hold it has reasonable grounds to rebut the presumption for non-probation or non-jail sentence.  In addition, a more severe diagnosis in the substance use evaluation may also be reasonable grounds to rebut the presumption and order a probation term. Therefore, if a judge believes there is a rebuttable presumption he or she will state the reasons on the record and then order a term of probation he or she believes is appropriate.

Can I be discharged early if probation is ordered?

Yes.  Along with the criminal justice reform that has attempted to limit and avoid probation sentences it has also provided a 50% Rule. This Rule, and the term rule is used loosely, is that if a probationer is successful in completing 50% of the term of probation, including completing all programming, payment of fines and costs, is eligible to have the probation term terminated or discharged early.  The request for early discharge may be initiated by your attorney, by your probation officer/agent, or by you individually.

The overall criminal justice reform was to theoretically assist the court system, and specifically the probation departments, from being over-burdened by defendant oversight and minor issues that bog down and clog up the criminal court system.  Although the law does not specifically state it, it certainly sent a legislative message that the courts and probation departments should focus time and attention on the more and most serious offenders.  But arguably, many judges and probation departments do not share the legislatures good intentions.

What have the criminal defense and OWI attorneys at the Barone Defense Firm observed regarding this Reform over the past year?

Interestingly we have not observed a significant change in how judges and the courts are handling these matters.  First, the rebuttable presumption is a low bar for the court to meet and continually state reasons to place defendants on probation in direct conflict of what the new statutes and reform were intended to avoid.

Therefore, it is even more important for our attorneys to address each potential factor that can cause a non-serious misdemeanor presumption from being rebutted. We want to document our clients counseling and educational programming, we want to submit letters of support that also document the clients’ actions while on bond, and we want to use the law to support our position.

A new law, especially laws that appear to take some power from a judge, often result in a slow curve in how a judge responds or reacts to it.  For example, allowing for 50% early termination has often been met with a judge simply doubling what was historically ordered. For example, an OWI Misdemeanor offense has a maximum probation period of 24 months, and therefore, even under an early discharge probation could be 12 months of probation.  However, a well-prepared client and well-prepared defense attorney will provide the best opportunity to obtain the appropriate sentence under a plea or conviction and not just be another case number in the busy docket.

What is the Barone Defense Approach?

From the moment a client retains our firm the top Michigan DUI laywers at the Barone Defense Firm begin assessing our case and preparing for trial.  Our idea is that we want to see the big picture.  Through the process of understanding our client’s story and specifics of their experiences and case we develop the theme of our case.  We begin to collect evidence known as Discovery and make requests under the Freedom of Information Act to obtain additional information not normally in possession of the prosecutor or law enforcement.  Based upon our assessment of the evidence we may be filing motions to limit or expand certain legal issues of importance.  Throughout this long litigation process in the court system we also assist our client in being proactive in addressing the allegations of alcohol or controlled substance use, which would include a substance use evaluation through a trusted a certified substance use counselor or facility, and then following through with the recommended programming.

In addition, there are other educational programs we recommend.  Further, we want personal insight of our client’s support network that may include a spouse or family members, friends, co-workers, to better identify and understand the person. We want the court to know You and to see this you individually rather than a statistic.  We do all of this in an effort to educate our client and to place them in the best position possible for a result that is desired and acceptable to them under the circumstances.  Therefore, whether case results in a trial with an acquittal, a conviction, a dismissal, or a plea, our client is in the best position to mitigate the consequences and fit within the presumption of a non-serious misdemeanor.

If you or a loved one is facing potential drunk driving allegation contact the Criminal and OWI Trial Attorneys at the Barone Defense Firm how we may be able to assist you.

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