Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began an examination of the consequences to your driver’s license in a Michigan DUI case. We established that there are 2 preliminary things to keep in mind before we can answer the question “what will happen to my driver’s license?” First, and particularly in 1st offense DUI cases, we noted that the original charge for which you were arrested (often “OWI” or “High BAC“) may very well be dropped down, so that what you wind up “getting” on your record may be far less severe, and may not have anywhere near the impact to your ability to drive as would otherwise be the case with the offense written on your ticket, or otherwise appearing on your court notice. That’s the good news
Second (and this is the bad news), we established that for anything after a 1st offense DUI, the Michigan Secretary of State simply counts the number of total “alcohol related traffic offenses” (meaning DUI’s) and automatically imposes license consequences, regardless of how the case is resolved in court. This means that, as far as driver’s license sanctions are concerned, the only thing that matters is the number of DUI (or DUI-related) convictions a person accumulates in either a 7 or 10-year period.
In this 2nd part, we will look at he actual driver’s license consequences that the state, meaning the Secretary of State, will impose for the most common DUI convictions. To be clear, license sanctions are only imposed by the Secretary of State, and not the court. A court cannot, under any circumstances whatsoever, take any action against a driver’s license in a DUI case. No matter what the facts, the judge cannot modify anything done by the Secretary of State regarding DUI license sanctions, because the penalties described below are absolute.
It makes sense to examine the driver’s license sanctions, or penalties, from worst to least severe. To keep this article of manageable length, I’m not going to get into the penalties for death or injury DUI cases. It should suffice to point out that if you find yourself facing one of these charges, you’re at risk of losing a lot more than just your driver’s license and have bigger concerns and risks to worry about. In order of severity, this is what happens:
For a 3rd offense DUI, meaning any combination of 3 alcohol-related traffic offenses – OWVI, OWI, High BAC convictions, and including 1 prior “zero tolerance” conviction within 10 years from the date of the conviction of the oldest offense to the date of the arrest for the most recent offense, the driver’s license will be revoked for a minimum of 5 years. There is NO appeal to any court, and a person can only win back his or her license by filing (and winning) a driver’s license restoration appeal with the Michigan Secretary of State’s Driver Assessment and Appeal Division, also known as the DAAD.
This can be confusing, because criminally, a person can be charged with and convicted of a 3rd offense for any combination of 3 DUI’s within his or her lifetime. The 3rd offense charge has nothing to do with any time frame, whereas the 3rd offense license sanctions are completely dependent upon those 3 DUI’s all taking place within 10 years.
This is so important, it bears repeating: All driver’s license penalties are set in stone, and there is absolutely no way around them. There are no exceptions, no hardship appeals, and nothing that can be done other than to suffer through them. The state does not have any mechanism to “care” what effects loss of a license will have in your life, meaning it does not “care” if the license sanction will cost you your job. Nothing can be done, even if you are a single mom and you have to drive your kids to school or need to take a dependent, elderly person to the hospital for life-saving medical treatments. The state simply counts alcohol related driving convictions, and if they fall within the clear and simple framework (3 within 10 years or 2 within 7 years), then the corresponding penalty is automatically imposed.
It is also important to note that, by law, a “zero tolerance” offense, meaning person under 21 years of age with a BAC of .02 to .07, counts as an alcohol-related traffic offense (DUI). However, only 1 such offense counts as a “prior,” so that if a person has had 2 or more “zero tolerance” convictions, only 1 of them counts as a prior DUI. In addition, a “High BAC” only applies to a person’s first DUI. If a person has been convicted of any prior alcohol-related traffic offense within 7 years, he or she cannot be charged with a “High BAC” offense, no matter what his or her breath or blood test results.
For a 2nd DUI, meaning any combination of OWVI, OWI, High BAC offenses, including 1 prior zero tolerance conviction within 7 years from the date of the conviction from the 1st offense to the date of the arrest of the 2nd offense, the driver’s license will be revoked for a minimum of 1 year. Because the license is revoked, it cannot be returned until approved after a full DAAD license restoration appeal has been filed and won.
1st offense cases are different. To begin with, a “1st offense” means any DUI arrest that occurs more than 7 years (this can be exactly 7 years a 1 day) after a conviction for the prior offense. Remember, there can only be 1 prior offense, because if there are 2 priors, no matter when they occurred, then next is considered a 3rd offense.
Accordingly, if a person has only 1 prior DUI, and the conviction for that DUI took place more than 7 years before the arrest for his or her next offense, then that next offense only counts as a 1st offense. Of course, if a person has no prior DUI’s, then any alcohol-related traffic offense is considered a 1st offense.
CDL holders beware: A conviction for Any 1st offense (High BAC, OWI or OWVI) automatically results in a 1 year suspension of your commercial privileges, over and above any of the personal driver’s license sanctions. I hate this part of the law, but there is no workaround. Obviously, if you have a 2nd offense, your whole license is yanked, so a CDL becomes a moot point.
High BAC requires that a person’s driver’s license be suspended for 1 year. The first 45 days is considered a “hard” suspension, meaning there is no ability or restricted driving privileges. After 45 days, a person will automatically be able to drive on a restricted license for the rest of the year (10 and ½ months), but must do so with an ignition interlock installed on his or her vehicle. The person cannot drive any vehicle, for any reason, not equipped with an ignition interlock during the period he or she has a restricted license.
A 1st offense OWI conviction results in the suspension of a person’s license for 6 months. The first 30 days of that is considered a “hard” suspension, meaning there is no ability to drive whatsoever. Thereafter, a person will automatically be given a restricted license for the remaining 5 months.
A 1st offense OWVI, or impaired driving requires a 90 day suspension of the person’ license. There is no “hard” suspension period, so the person will automatically be given a restricted license for the entire period. If you’re going to get stuck with a DUI, an impaired driving is the holy grail of all bargains and breaks. With an impaired, you never lose your ability to drive for things like work and school.
A zero tolerance 1st offense will cause the driver’s license to be restricted for 30 days. A 2nd offense zero tolerance begets a mandatory 90-day “hard” suspension, with no driving allowed. In the real world, zero tolerance cases aren’t that common, although they are far from rare. Even so, I think I’ve only ever seen 1 or 2 cases involving a person with more than 1 zero tolerance conviction on his or her record.
Part of the difficulty in understanding all of this is that the rules are not flexible. Questions that begin with “what about,” or “what if,” or “how do they?” involve complex life situations. The answers, however, are brutal, cold, and simple. In reality, what will happen to your license is a matter of simple math. How that impacts your life will likely be far more complicated.
For all of this, it is important to get correct legal information from your lawyer about your situation. As we noted at the outset, particularly in a 1st offense case, the original charge made against you may change (as in be negotiated down), so that makes predicting things hard. There is no magic formula you can use to tell if your lawyer really knows what he or she is talking about, because most people don’t know when they’re wrong. As the saying goes, “you don’t know what you don’t know.” Whatever else, with nearly a quarter century of experience, and as a Michigan DUI and driver’s license restoration lawyer, I understand every nuance and ramification of DUI driver’s license sanctions. If you are facing a DUI charge anywhere in Macomb County, Oakland County or Wayne County, and you’re looking to hire a lawyer, you owe it to yourself to at least give my office a call and see how I answer your questions and can help your situation.