Michigan Criminal Defense Lawyer Blog
As Michigan DUI lawyers, one of the most common questions we’re asked by someone facing a 1st offense DUI is something like, “What’s going to happen to my license?” In this article, I want to answer that clearly and simply. The good news is that although a conviction for any 1st DUI offense (OWI, High BAC, or Impaired Driving) will result in some kind of restriction to a person’s ability to drive, none of those charges will result in a permanent loss of license.
To begin, we need to define what constitutes a “1st offense” DUI charge. In Michigan, an alcohol-related driving offense is considered a 1st offense if the date of the arrest for it occurs more than 7 years after the date of any previous DUI or alcohol-related driving conviction, including what’s know as a “Zero Tolerance” (Minor with BAC of .02 to .07) offense. The term “alcohol-related driving offense” means any “DUI-like” charge that involves driving while impaired, intoxicated, or, in the case of Zero Tolerance, having a BAC above .02.
Although it can be rather easy to get tangled up in dates, the legal definition of a 1st offense is actually quite clear: An OWI offense is considered a 1st offense if the person was not convicted of a prior alcohol-related traffic offense within 7 years from the date of his or her arrest for the current offense. The measure is NOT from arrest to arrest, nor from conviction to conviction. Instead, the clock starts running from the date of the conviction for the prior offense, and stops at the date of arrest (not conviction) for the next offense.
Thus, if a person is arrested for a DUI charge within 7 years of a prior DUI conviction, he or she can (and almost certainly will be) charged with a 2nd offense. However, if that arrest takes place 7 years and 1 day or more after a previous DUI conviction, then he or she can ONLY be charged with a 1st offense.
As it relates to timing, let’s resolve any confusion as it relates to 3rd offense DUI cases before we go any further. In Michigan, the criminal and the license laws diverge when it comes to 3rd offense OWI cases: If a person has had 2 DUI (alcohol-related driving offense) convictions at any point within his her her lifetime, then any subsequent arrest for a 3rd DUI can – and almost always will – be brought as a 3rd offense felony.
However – and this is both important and a bit confusing – the rules regarding license sanctions provide that a 3rd offense only carries the otherwise mandatory 5-year revocation if, and only if, that 3rd arrest occurs within either 7 years of any single prior conviction, or within 10 years of 2 prior convictions.
For most people, though, this isn’t a concern because they don’t have more than 1 (or even any) prior convictions for any kind of DUI offense.
So that we’re all on the same page, if the reader does not have a prior alcohol-related conviction within 7 years, or has not had at least 2 previous alcohol related convictions within 10 years, then, for license purposes, no matter what the specific charge he or she is facing (we’ll get to that next), we’re talking about a 1st offense DUI.
There are 4 types of alcohol-related driving offense charges that can be made against a 1st offender. Here they are in order of severity:
1. High Bodily Alcohol Content (High BAC, or OWI with a BAC of .17 or greater);
2. OWI (Operating While Intoxicated);
3. OWVI (Operating While Visibly Impaired), and,
4. Zero Tolerance (Person Under 21 with a BAC of .02 to less than .08).
Before we get to the penalties for each, it’s extremely important to point out that most of the time, a person will NOT wind up convicted of the offense that he or she is first charged with.
IN THE REAL WORLD, ALMOST EVERYONE ARRESTED FOR A DUI OFFENSE IS INITIALLY CHARGED WITH EITHER OWI OR HIGH BAC.
For example, if a person is charged with Operating While Intoxicated and hires a good DUI lawyer, it is quite possible that, even if the case against him or her is “rock-solid,” a plea bargain can be negotiated so that he or she can avoid being convicted of OWI by pleading to the reduced charge of OWVI (Impaired).
What this means is that a person who is facing a High BAC or OWI charge shouldn’t start freaking about over the license penalty for that offense, given the very good chance that, with careful legal maneuvering, he or she can wind getting a plea bargain to a different, less serious offense.
We’ll come back to this, also, but next, let’s define what is meant by a restricted license.
In Michigan, a restricted license allows a person to driver for all of – but ONLY for – the following reasons:
In the course of the person’s employment or occupation if the employment or occupation does not require a commercial driver license.
To and from any combination of the following:
1. The person’s residence.
2. The person’s work location.
3. An alcohol, drug, or mental health education and treatment as ordered by the court.
4. Alcoholics Anonymous, Narcotics Anonymous, or other court-ordered self-help programs.
5. Court hearings and probation appointments.
6. Court-ordered community service.
7. An educational institution at which the person is enrolled as a student.
8. A place of regularly occurring medical treatment for a serious condition or medical
emergency for the person or a member of the person’s household or immediate family.
9. Alcohol or drug testing as ordered by the court.
10. An ignition interlock service provider as required.
That’s it.
Before the reader asks, “what about…?”, the answer is that if the reason someone “needs” or wants to drive is not specifically listed in the purposes set out above, then the answer is no.
And yes, that does mean that, technically speaking, there is no room to go to grocery store, the dry cleaners, or the gym.
There are no exceptions to this.
Remember, the purpose of a restricted license is to punish someone, but to do so while also allowing him or her enough leeway to get by. In other words, the whole point of a restricted license is to MAKE things inconvenient.
Life being what it is, just about everyone will have some need to drive that’s not covered by the law, but in practice, everyone somehow manages to get by.
Although the way they do it may not be legal, the reality is that plenty of people on restricted licenses still manage to get groceries or hit the pharmacy or otherwise squeeze in a bit more than is technically allowed under their restrictions.
Now, let’s finally examine the license sanctions that are imposed for the 4 kinds of 1st offense DUI charges:
1. High BAC: No driving for the first 45 days (this is called a “hard” suspension), followed by a restricted driving privileges for the next 10 and 1/2 months, but only with an ignition interlock unit. This is a 1-year penalty.
2. OWI: No driving for the first 30 days (the “hard” suspension) followed by restricted privileges for the next 5 months. This is a 6 month penalty.
3. OWVI: Restricted driving allowed immediately, and for 90 days. This is a 3 month penalty.
4. Zero Tolerance: Restricted driving for 30 days. This is a 1 month penalty.
In the real world, over 99% of all drivers charge with a DUI are going to have to deal with either # 1, #2, or #3. Zero Tolerance cases are rare; so rare, in fact, that we’ll forgo any further discussion of them in this installment.
A DUI lawyer’s first and foremost goal in every DUI case, no matter what the initial charge, is to either get the client out of it completely, or at least negotiate a deal down to the least serious offense possible.
Always remember this: Success in a DUI case is best measured by what does NOT happen to you.
Statistically speaking, more than 9 out of every 10 DUI arrests in Michigan result in some kind of DUI-related conviction (meaning either High BAC, OWI, or OWVI).
Given that reality, negotiating a reduction from the charge first made against a person to something less serious is really the key to minimizing consequences.
This means that, for example, if a person is charged with High BAC (and assuming the evidence has not been so badly screwed up by the police so that the whole case can otherwise be thrown out of court), then getting a plea bargain down to OWVI is the best outcome.
In certain cases, and for a lot of reasons, that might not be an option, however. Often, this is because the person was obscenely drunk and had a BAC that was sky-high.
The ins and outs of plea bargaining go beyond the scope of this article, but it’s worth noting that in some situations like that, even though the High BAC charge can’t be reduced all the way down to an OWVI charge, it might still be possible to negotiate it down to the less serious offense of OWI, and that’s still a valuable break.
Similarly, if a person is charged with OWI and there is no way to get the whole case “knocked out,” then the best deal is for the lawyer to negotiate the charge down to OWVI.
Although OWVI is the least serious charge of the 3 “real” DUI-related offenses, almost nobody is ever initially charged with it. Few people have a BAC result less than .08, and those that do usually wind up charged with OWI anyway.
Of the thousands and thousands of OWI cases our firm has handled, and with very few exceptions, every one has been brought as either an OWI or High BAC charge.
Thus, OWVI is basically an offense that is reserved for plea bargains.
This really emphasizes that, at the end of the day, it’s the conviction offense (meaning the offense to which a person ultimately pleads guilty) that controls what will happen to his or her driver’s license.
Therefore, anyone who wants to know “what’s going to happen to my license?” needs to first know what’s going to happen to his or her DUI charge.
Most people charged with High BAC or OWI don’t wind up convicted of that offense, but are instead able to have their lawyer negotiate it down to something less serious, and that, in turn, means that he or she will only have to deal with the license penalties for that less serious offense.
If you are facing a DUI charge and looking for a lawyer, be a wise consumer and do your homework. Read around and see how lawyers explain the DUI process, and how they explain their approach to it. When you’ve done enough of that, start checking around.
You can learn a lot by actually talking to a live person.
If your case is pending in the Greater-Detroit area, meaning within any court located in Wayne, Oakland, Macomb, Lapeer, Livingston, St. Clair or Washtenaw counties, give us a ring, as well.
My team and I are very friendly people who will be glad to answer your questions, explain things, and even compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at either 248-986-9700, or 586-465-1980.