High BAC DUI Charges in Michigan

This will be a short article about the role of your BAC (breath or blood test result) in a Michigan drunk driving charge. Just about everyone knows that, a few years back, Michigan adopted a “High BAC” or “super drunk” law. Everyone arrested for a DUI learns, for better or worse, that the enhanced charge kicks in with a breath or blood test result of .17 or higher. Many people, however, do not know that the high BAC offense itself can only be charged in a 1st offense DUI case. In other words, if a person has a prior conviction for a drinking and driving offense within 7 years of the date of the arrest for a new charge, he or she cannot be charged with a high BAC crime.

This is significant because the reality is that there are plenty of people who, for reasons beyond our current discussion, pick up a 2nd or 3rd offense DUI charge, and then worry (needlessly, as we’ll see) that there is some kind of enhancement or “extra” penalty that can be piled on to make things worse if their BAC result was .17 or higher: There is not. This is a simple truth that gets confused because of complex situations. High BAC charges only apply in 1st offense DUI cases. There is no kind of High BAC legal enhancement, now matter how high the test result, in a 2nd or 3rd offense drunk driving charge. In other words, a 2nd or 3rd offense DUI cannot be charged any differently, or acquire any kind of more serious legal status just because the person’s BAC was through the roof. A 2nd offense DUI with a BAC of .14 is legally no different from a 2nd offense DUI with a BAC of .28. In other articles, I have written about the overarching role of the BAC result in a DUI case, and it is important, but that impact is limited to how the court perceives a DUI driver in general in anything other than a 1st offense, High BAC situation.

Now, if that’s all there was to it, this wouldn’t be much of an article. The law is clear and a High BAC charge can only be made in a 1st offense case, but there is often confusion as to exactly what constitutes a 1st offense case. I see plenty of people properly charged with High BAC who have a prior DUI. The distinction that matters here is that the conviction date for that a prior DUI must be more than 7 years prior to the date of the arrest for the new charge. If, however, a person has had 2 prior DUI’s, none of this usually matters because a person will likely be charged with a 3rd offense, a felony offense. Usually – but not always, and that’s part of what makes all of this so complicated…

Some jurisdictions will, on occasion, “forget” 2 old prior DUI’s so that a person can be charged under a local ordinance as a 1st offender. This isn’t done out of any concern for the person caught, but rather because the municipality can keep the money in a 1st offense case, whereas it all goes to the state in a 2nd or 3rd offense case. As with just about everything in life, if you want to know why things are the way they are, follow the money. However it works out, there is no living person who would be upset if he or she was arrested for a DUI and, although “eligible” to be charged as a 3rd offense felon, winds up getting charged as a 1st offender, instead. Yet these cases are far more the exception rather than the rule. I have also seen a variation of this “slide” on the charges in cases where a 2nd offense could have been charged, but a 1st offense High BAC was authorized instead.

I could go all over the map with exceptions and special cases, but the bottom line for the overwhelming majority of people is that if you have a prior DUI conviction within 7 years, and no matter what your breath or blood test result in the new case, you cannot and will not be charged with a High BAC offense (you will, instead, be charge with a 2nd or 3rd offense), nor will a high BAC test result carry any increased legal risk for you. By contrast, if you have no prior DUI convictions within 7 years (or you do not have 2 prior DUI’s in your past), and your BAC result is .17 or higher, you can be charged with the more serious “super drunk” offense.

The exception, of course, occurs because of money. Sometimes, a municipality without its own High BAC ordinance does not want to give up collecting fines and costs and will overlook a high BAC result and just charge a person with a plain old Operation While Intoxicated (OWI) 1st offense. I have examined this phenomenon in other articles, and a more in-depth examination of the reasons that happens exceeds the scope of this article. Our take-away here is simply that a person with a prior DUI within 7 years, or 2 or more DUI’s within his or her life cannot be charged with a High BAC offense as a 2nd or 3rd offender, no matter how high the actual BAC result.

High BAC, then, necessarily means 1st offense, and only 1st offense.