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Most people are familiar with the concept of a “legal limit.” In Michigan and every other state, the legal limit is .08. This number refers to the Bodily Alcohol Content or BAC threshold for DUI. However, what many people do not realize is that you can still be charged with DUI, and convicted of a crime known as OWVI, even when your blood alcohol content is well below this legal limit. You can also be charged with DUI in Michigan when there is no chemical test at all. To understand why this is possible, it’s helpful to understand the various appliable definitions.Operating While Visibly Impaired
Michigan law distinguishes between intoxicated driving and impaired driving. Generally, a driver is considered intoxicated if he or she has a BAC that is over the legal limit. On the other hand, you may be considered "impaired" if your ability to safely operate the vehicle is less than that of a normal, everyday driver.
The official charge for impaired driving is operating while visibly impaired, or OWVI. It is referred to as "visibly impaired" because the impairment should be noticeable to a normal, everyday person, which is a rather subjective standard. The OWVI charge is a lesser OWI offense and is sometimes used for plea bargaining purposes.
The standard of proof for "visibly impaired" is lower than the standard for "under the influence." In an OWVI case, the prosecution must show that the defendant's ability to operate the vehicle was less than that of a careful driver due to the consumption of alcohol, drugs, or a combination of both. This reduced ability to operate a vehicle safely must have been visible to an ordinary, observant person. You can be convicted of OWVI with a BAC above or below .08.So Why Have a Legal Limit if it Does Not Mean Anything?
The purpose of a legal limit is to provide some objective basis for determining if a person is impaired or intoxicated. However, some people respond differently to alcohol than others, so the law leaves room for the possibility that a person can still be impaired or intoxicated with a BAC of less that .08. The proof of such impairment or intoxication would be all the other evidence collected by the police officer investigating your case. This would include the “observation evidence” such as your manner of driving, performance on administered field tasks, admissions to drinking, etc. If the jury thinks that the observation evidence is enough to prove beyond a reasonable doubt that the alcohol negatively impacted your ability to drive then you run the risk of conviction even without a chemical test, or worse, even when your chemical test is well below the legal limit.Penalties for a First Offense OWVI Conviction
Like all DUI convictions, a conviction for OWVI has three categories of consequences; (1) punishment imposed by judge, (2) driver license sanctions, and (3) collateral consequences. For a first offense Operating While Visibly Impaired, you could face a fine of up to $300.00. Costs will also be imposed as the court sees fit. You can also be sentenced to up to 93 days in jail, and the judge can order as many as 360 hours of community service. You might also have to pay back costs of prosecution and be placed on probation for a year or more.
The Secretary of State will also suspend your license for 90 days, but during this 90-day period some restricted driving, such as to and from work, will be allowed.
The collateral consequences are the same for an OWVI as for a first offense DUI. Collateral consequences are those things not imposed by the judge or the Secretary of State, but instead, for simply having a criminal conviction on your record. A DUI, including OWVI, can never be removed from your record, so you will forever be dealing with the collateral consequences. An OWVI conviction can impact your ability to keep your job or find new employment, your ability to travel, obtain insurance and housing, and many other things. It is the impact of these collateral consequences that cause most people to want to find and hire the best DUI lawyer possible. While a term of probation and a 90-day restricted license may seem like not such a big deal, losing your job is a different story.Penalties for a Second Offense OWVI Conviction
The available penalties that may be imposed for a second offense OWVI will largely depend on the date of your prior OWVI conviction. If you pick up another DUI after 7 years or less, then the penalties for a second offense OWVI will be pretty much indistinguishable from those imposed for a second DUI or OWI. Either way, the maximum penalty is raised from 93 days to one year in jail, with a minimum mandatory 5 days of incarceration, and your driver license will be suspended revoked for at least one year. As indicated above, the collateral consequences will be just the same as well.What About OWVI Causing Death or Serious Bodily Injury?
Because a driver can below the legal limit and still be intoxicated, it is likely that the prosecutor would charge these as OWI offenses rather than OWVI offenses. These crimes are serious felonies punishable by many years in prison. The “average” prison sentence per death is between five and seven years. If you’ve been charged with a serious alcohol related crime where death or serious injury has occurred then be sure and retain the best Michigan DUI lawyer can find to represent you.