Understanding OWI in Michigan: Frequently Asked Questions

As a criminal defense attorney in Ontonagon, Michigan, I often receive questions about Operating While Intoxicated (OWI) charges. Here are some of the most common inquiries and their answers to help you understand the legal landscape.

1. What is OWI in Michigan?

OWI stands for Operating While Intoxicated. It refers to operating a vehicle with a blood alcohol content (BAC) of 0.08% or higher, or while impaired by alcohol or drugs. With lower BAC levels you can still be charged with Operating While Impaired. BAC levels over 0.18% may be charged with Operating with a High BAC. OWI’s can also be enhanced if there is a death or serious injury. A juvenile can be charged with OWI Zero Tolerance if operating a vehicle with a BAC over 0.02%.  See my blog for OWI laws.

2. What are the penalties for a first-time OWI offense?

A first-time OWI offense in Michigan can result in:

• Fines up to $500
• Up to 93 days in jail
• Community service
• License suspension for up to 180 days
• Possible ignition interlock device installation
• Collateral Consequences- see my blog for listing.

3. Are the penalties greater for a second or greater OWI offense?

The penalties are enhanced for successive OWIs. 

• Second Offense: Up to 1 year in jail, fines up to $1000, mandatory license suspension for 1 year, and a mandatory ignition interlock device.
• Third or More Offenses: Felony charge with up to 5 years in prison, fines up to $5000, license revocation, and an ignition interlock device.

4. Can I refuse a breathalyzer test?

While you can refuse a breathalyzer test, Michigan's implied consent law means that refusal can lead to an automatic license suspension for one year, six points on your driving record, and no immediate restricted license availability. Under Michigan implied consent law, meaning that by operating a vehicle, you consent to breath, blood, or urine testing if arrested for OWI. If the officer has probable cause, he/she will probably seek a search warrant to request a blood draw to test for alcohol/drugs.

If you are absolutely certain that you had only one or two drinks in a 4 hour period, take all the tests to avoid OWI charges.  However, remember that your judgment and memory are affected when you have been drinking and you might have forgotten a few other drinks. If you cannot remember or had more than two drinks, you can politely refuse any tests.  You will lose driving privileges, but you might restrict the officer's testimony to how you drove (which might have other explanations).  However, as stated above, if the officer has probable cause, he might obtain a search warrant for a blood draw.

5. Can I refuse the Field Sobriety Tests (FSTs)?

You do have a right to refuse the Field Sobriety Tests and there should be no penalties for refusal. FSTs are designed to test balance, attention, and cognitive/physical abilities which may be compromised by alcohol or drug use. These tests are subjective and other factors such as medical conditions like arthritis, artificial limbs, balance problems, neurological problems, and medications can affect the results. The results can be utilized by the officer as probable cause for a Preliminary Breath Test (PBT).

6. Can I refuse the Preliminary Breath Test (PBT)?

You can refuse the PBT, but it does come with a civil infraction and a fine of up to $150. If you are under 21 years of age, two points will likely be added to your driving record. The PBT is usually given at the road stop and is different from the breath, blood, or urine tests. These tests are usually taken at the police station or the hospital. Refusal of a breathalyzer or other chemical test is a violation of the implied consent law. Refusal of the PBT is not a violation of the implied consent law. The PBT is usually given to provide probable cause for an arrest for OWI. 

7. What is the difference between OWI, OWVI, and DUI?

In Michigan, OWI is the term used for drunk driving offenses, while DUI (Driving Under the Influence) is a more general term used in other states. Both refer to operating a vehicle while impaired by alcohol or drugs. OWVI is the term used for operating a vehicle while visibly impaired.

8. Can I be charged with OWI while driving a All Terrain Vehicle?

In Michigan, you can be charged with OWI while operating an All Terrain Vehicle. Motor vehicle is defined in MCL 257.33 and is described as a self-propelled vehicle but does not include by law, industrial equipment such as a forklift, construction equipment not subject to registration, power driven mobility devices, commercial quadricycle, electric bicycle, or electric skateboard. Other self propelled vehicles such as ATVs are included in the code for OWI.

9. Can I be charged with OWI while sitting in my car?

In Michigan, the charge is operating, not necessarily driving. If you have actual physical control over the vehicle, for example keys in the ignition or possibly even operating the radio, you could be charged with OWI. If you are sitting in a seat other than the driver’s seat, the charge would be questionable.

10. Can I be charged with OWI while on private property?

In Michigan, the charge is operating a vehicle on a highway or other place open to the public or generally accessible to motor vehicles. This includes parking lots, parking areas which could be private business lawns if used for parking, and yes, even private driveways.

11. How can an attorney help with an OWI charge?

An experienced attorney can:

• Evaluate the evidence against you
• Challenge the legality of the traffic stop
• Negotiate plea deals
• Represent you in court to seek reduced penalties or dismissal

12. What should I do if I'm pulled over for suspected OWI?

• Remain calm and polite
• Provide your license, registration, and proof of insurance
• Avoid making incriminating statements
• Contact an attorney as soon as possible

13. Can an OWI charge be expunged from my record?

As of recent changes in Michigan law, certain OWI offenses may be eligible for expungement. Consult with an attorney to explore your options.

Conclusion

Facing an OWI charge can be daunting, but understanding your rights and the legal process can make a significant difference. If you have more questions or need legal assistance, feel free to contact Robert Peterson, Attorney at Law, P.C. for a consultation.