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What is OWI in Michigan?
OWI is an acronym that stands for the phrase “operating while intoxicated.” This is the principal charge of intoxicated or drunk driving in Michigan. However, as with most things in law, the answer is a little more complicated.Alphabet Soup - The ABCs of DUI.
Unfortunately, the Michigan law of DUI is complicated and a bit confusing. The law and the legal system have an interesting history of often overcomplicating and oversimplifying. This is certainly true when it comes to DUI laws.
Drunk Driving is commonly referred to as DUI, which is the acronym for Driving Under the Influence. DUI is normal nomenclature throughout our country, but in fact, Michigan does not have “DUI” on the books, or at least not the acronym. In Michigan, what most people think of as DUI is legally referred to as OWI. But this is only a partial answer because OWI really means more than simply driving while drunk.An OWI in Michigan Can Mean Many Things
Interestingly Operating While Intoxicated seems straightforward, however, OWI is actually two separate legal theories wrapped up together. This means that if you are charged with OWI, you are facing the defense of both theories. The two theories are 1) Unlawful Blood Alcohol Level, known as UBAL or what your lawyer may call the “per se” offense, meaning based on the statute alone; and 2) Operating Under the Influence of Intoxicating Liquor, or OUIL. Your lawyer may call this the common law offense.What is UBAL?
UBAL is the legal argument that if you are operating a motor vehicle, and have a BAC at or above .08, then you have violated the law. No bad driving is required. In Michigan the statute defines UBAL as applicable to drivers who have .08 grams of alcohol per 210 liters of breath or per 100 milliliters of blood, is the illegal limit. Therefore, if your blood or breath alcohol test measured at .08 or above you are considered guilty on this basis alone. This theory arguably may ignore the driving observed or the field sobriety tests performed. It simply says your body has too much alcohol in it to drive safely, even if the evidence shows otherwise. In recent years, Michigan also added a new law, and a new or additional illegal limit of .17 which carries significantly harsher penalties but applies in the same way utilizing the same legal theory. Like the .08 UBAL, the .17 is an enhanced UBAL, and like .08 UBAL is also a “per se” offense.Can You Win Against a UBAL Charge?
A common mistake by many legal practitioners, and even defendants, is they blindly accept the number. The DUI lawyers at the Barone Defense Firm have the knowledge training and experience to defend and win in the face of a UBAL charge.
The legal limit number refers to the reported result of the breath test or the blood test that was conducted. Understanding what to look for, how to assess it, and even better how to explain it to a prosecutor, judge or jury, is a necessary skill set for your DUI specialist attorney. Over the last several years, and more so over the past 12-18 months, significant concerns regarding the reliability of the chemical testing, and those who oversee it, have been published to the public. These concerns have always been present in the small number of attorneys with significant experience in this area, but now the public and potential pool of a jury of our peers have also seen it.
The law requires more than just blind acceptance by the jury of the chemical test results but requires that they be unanimously be satisfied by the operation and maintenance of these machines. If a juror does not accept the purported alcohol level, or the chemical test is suppressed or not admissible, the other legal theory of OUIL is potentially available.What is OUIL?
OUIL stands for operating under the influence. This legal theory applies more to the effects of the alcohol on a person versus the actual amount of alcohol in a person. Interestingly, the law itself only states shall not operate under the influence of alcoholic liquor (it also includes controlled substance or a combination of both).
At trial a standard jury instruction is used to educate the jury in understanding all these subtle differences in the OUIL and UBAL theories. The instruction further attempts to assist the juror, or fact finder, in understanding how to think or analyze the legal issues within a case. It explains that because of consuming alcohol the person's ability to operate a car in a normal way was substantially lessened. Normal falls under the reasonable person standard which is a cornerstone principle in our legal system. Ultimately each juror determines what is normal, and furthermore, if it is abnormal is it abnormal because of the alcohol. It compares some the common thoughts about being under the influence. It advises that the person does not need to be ‘dead drunk’ or falling down and conversely cautions a juror that just because there is evidence that the person smells like they have been drinking does not by itself equate to being under the influence.What is the Jury Test in an OWI Case?
The jury instruction tries to succinctly conclude its instructions on OUIL with the recommended ‘test’. In the instruction, jurors are told that:
The test is whether because of drinking alcohol the person's mental and physical condition was significantly affected and the defendant was no longer able to operate a motor vehicle in a normal way.
The argument for and against what is normal is for the Prosecutor and the Defense Counsel to submit to the Jury, but it is the Jury that decides what is normal, and whether abnormal is because of alcohol or something else entirely.Why Operating and Not Driving?
In Michigan you can be found guilty of OWI even if you are not driving your car. This is because the definition of “driving” and “operating” are significantly different.
The legal requirement for a prosecutor to prove is whether you were operating. Operating has been defined as having actual physical control over the vehicle. Michigan case law has decades of precedent that have narrowed the legal issue of “operation” down to a few limited exceptions. This legal issue, to the extent that it exists in your case, will be brought forth by your lawyer and argued in motions, preliminary examinations, and of course in trial. However, the question is whether you and your car are in a position of risk that the law sets out prevent.
Should you find yourself in the complicated and complex situation of facing a DUI, OWI, OUIL, UBAL, then you should educate yourself and protect yourself and retain the Barone Defense Firm.