Michigan Criminal Defense Lawyer Blog
One of the most common questions I am asked in my role as a Michigan DUI lawyer (especially one who also concentrates in driver’s license restoration cases after multiple DUI’s) is “What will happen to my driver’s license?” This is usually followed by some explanation about how the person needs to drive to get to work (or school, or both, or to take the kids to school, etc.). It goes without saying that everyone needs their driver’s license, but it also goes without saying that when you are caught up in a Michigan DUI, something will absolutely happen to it. In this article, I want to look at the very real world situation where a person is facing his or her 1st DUI offense, including a High BAC charge. In an upcoming installment, we’ll look at the very different situation and results that take place when a person is facing his or her 2nd DUI charge within 7 years, or 3rd within 10 years. For now, however, we’ll limit our examination to 1st offense charges.
Obviously, if you’ve never been convicted of OWI (Operating While Intoxicated) before and you’ve been arrested for drunk driving, you can only face a 1st offense charge. Given that I sometimes handle more than 12 drinking and driving cases in a single week, I see just about every situation you can imagine, and one of them that isn’t as uncommon as you’d think involves a person with a prior DUI conviction that occurred more than 7 years ago who winds up facing yet another. In many of these cases, the person will conclude that because he or she had a prior conviction, this new one is automatically a 2nd offense. This is where legal technicalities matter: In Michigan, a “2nd offense” means that a person was convicted of (meaning pled guilty to or found guilty of) a prior OWI offense within 7 years of the date of the arrest for the current charge. The implication here is that your second offense may not actually be a “2nd offense.”
Here’s the good news: If you don’t have a prior DUI conviction within 7 years (and don’t have 2 within the preceding 10 years), you will NOT lose your driver’s license. You may have to deal with a short suspension, and you will certainly have to drive with some restrictions for a while, but your license will not be “yanked” (revoked) by the Michigan Secretary of State (SOS). And this is perhaps the most important point of all: The driver’s license sanctions for each and every drinking and driving offense are set by law, imposed by the SOS, and cannot be modified in any way, or for any reason. The court has nothing to do with what happens to your license, nor can any Judge make a restriction or suspension shorter or longer.
The license penalties are set in stone, and no matter what your circumstances, you will receive the exact license sanction for the specific DUI conviction you wind up getting. This means, however, that in many, if not most cases, the charge first made against you after your arrest is more serious than what can and will ultimately be worked out by a Michigan DUI lawyer, like me. Thus, it does little good to run and look up the penalties for your initial charge when I can usually get that charge reduced to something less serious and that carries less of a penalty to your license. Let’s see what this means in the real world of 1st offense DUI cases:
As I pointed out earlier, a “1st offense” DUI occurs when someone has never been convicted of a drinking and driving offense before, or he or she has no one prior offense within 7 years, and/or does not have 2 prior offenses within 10 years. For most people, this is easy to figure because he or she will either never have had a DUI before, or knows that any prior was more or less than 7 years ago.
There are 3 kinds of charges that qualify as a 1st offense: OWI (Operating While Intoxicated), High BAC (Operating with a BAC of .17 or more, sometimes call “superdrunk”), and OWVI (Operating While Visibly Impaired, often called “impaired”). In the real world, almost all DUI arrests result in either an OWI charge or a High BAC charge. In fact, in more than 25 years as a lawyer, I have been able to successfully negotiate a reduction to OWVI in the vast majority of first time cases I handle, whether initially charged as either OWI or High BAC.
We could go off and analyze all the other potential penalties that accompany each of these charges, but I summarize those well enough on my website, and our mission here is to look at driver’s license sanctions. Suffice it to say that the main differences between these charges, at least in terms of outcome, is that a High BAC and/or an OWI conviction will put 6 points on your driving record, whereas an OWVI will only net 4 points. The fines and costs are more for OWI than for OWVI, and a High BAC costs more still. Almost without exception, going to jail is NOT on the menu in any 1st offense case, so there’s no point getting all worked up over consequence that are unlikely to happen.
And that allows us to circle back to what will happen. No matter what your initial charge, it is the final charge, meaning the charge to which you plead guilty, that determines what license sanction is imposed. Before going further, we must define what is meant by a “restricted license.” “Restricted” means you can still drive, and in Michigan, in a DUI, the restriction include ONLY the following: To, from and during the course of (meaning “for”) work, to and from your school, to and from any necessary medical treatment, to and from anything the court orders you to do, and to and from any support group meetings, like AA. To be clear, this license does NOT allow you to pick up the kids from school, get your dry cleaning, get food on the way home from work, go to church or do anything that wasn’t specified above.
This is actually frustratingly simple; frustrating because you can’t do a lot of the things you need or want to do, and simple because if what you want to ask about is not specified in the restrictions (to, from and during the course of work, to and from your school, to and from any necessary medical treatment, to and from anything the court orders you to do, and to and from any support group meetings, like AA) then it’s not allowed. Even if your child or spouse needs lifesaving medical treatments, driving him or her to them is not permitted under the terms of the restricted license. Also, the date the restriction begins is set by the SOS, and depends on when it receives notice of your conviction from the court.
Because good lawyering can usually result in a negotiated “deal” that allows you to get the reduced charge of OWVI spares you from getting stuck with either a High BAC or OWI charge, let’s look at the actual driver’s license, meaning driving suspension and restrictions from the OWVI to OWI to High BAC.
OWVI: Your license will be restricted for 90 days. That’s it. There will be no time when you cannot drive. After 90 days, you get a new picture license with full driving privileges. This is why an “Impaired” is such a big and great deal in the drunk driving world.
OWI: You will not be able to drive for what’s called a “hard suspension” (that means no driving) for the first 30 days, and then you will be on a restricted license for the next 5 months. This totals 6 months of sanctions. In 180 days, the restrictions end and you’ll get a new picture license along with unrestricted driving privileges.
High BAC: You will be unable to drive for 45 days. After that, you will have a restricted license for the next 10 and ½ months, but, and here’s the kicker, you can only drive your vehicle with an ignition interlock device. In other words, you cannot drive until you get the “blow and go,” and then you must use it for the remainder of the year. After 1 year, everything returns to normal. You’ll go to an SOS office and get a new picture license with full, unrestricted driving privileges.
That’s it. There is nothing more, and nothing less to this. For those technically inclined and who want to understand the legal and linguistic nuances involved here, the issuance of a restricted license requires that it first be suspended, so when we talk about the sanction for Impaired driving, what really happens is that your license is suspended for 90 days and you are granted a restricted license for those 90 days. In the case of an OWI, your license is suspended for 180 days, the first 30 days of which are “hard”(meaning no driving), with a restricted license issued for the remaining 150 days.
Likewise, in a High BAC case, your license is, technically speaking, suspended for a full year, with the first 45 days of that being “hard” (no driving) and a restricted license requiring ignition interlock being issued for the remaining 10 and ½ months thereafter. Thus, a suspension does not necessarily mean you cannot drive; this is to be distinguished from a “hard suspension” where no driving can take place.
For anyone who is burning to ask a question that begins with, “What about” or “What if,” the answer is simple: You can only do what is set forth in the terms of the restrictions (to, from and during the course of work, to and from your school, to and from any necessary medical treatment, to and from anything the court orders you to do, and to and from any support group meetings, like AA). If you have $1,000,000 to spend on legal fees, there is no way to go to court to modify any of this, and, by law, you can’t even get a hearing in court, because the law specifically forbids it. Remember, these are license sanctions, and they are meant to serve as a form of punishment.
Other questions of the type that begin with “How do they expect me to?” can be also answered simply: That’s your problem. If these restrictions don’t work for you, then you’re out of luck. They’re meant to be inconvenient and put some hurt on you. They’re meant to allow most people to go to work, school, get necessary medical treatment and do what the court requires. It is understood that this won’t be good enough for some people. There is no way around that. This is why I said these sanctions are “frustratingly simple.”
If you’re facing a DUI, it is of course most important to see if there is a way to “beat it,” or at least get it reduced as much as possible. That’s where I come it. I usually end every article with the same advice: If you need a lawyer, you should never short change yourself and be anything less than a smart consumer. Read around. See how other lawyers address your concerns, and then call around to see how they answer your questions. If you’re facing a DUI anywhere in Macomb, Oakland or Wayne County, make sure you call my office, as well. We’re here to help, Monday through Friday, and can be reached anytime from 8:30 until 5:00, at 586-465-1980.