Wednesday, December 29, 2010

The New Drunk Driving Statute - An Overview

The new Operating While Intoxicated statute went into effect on October 31, 2010.  This is a long and complicated statute, and it may be easy to get confused as to where you fit in.  The following is intended as a very basic overview of how the statute works.

What can you be charged with? 

The statute outlines three (3) separate possible charges:

• Operating While Intoxicated
• Operating While Visibly Impaired
• Allowing Another to Operate While Intoxicated

You can be charged with Operating While Intoxicated if you are under the influence of alcohol and/or a controlled substance, or if your blood alcohol content (BAC) is over the legal limit.  Operating While Visibly Impaired applies if due to having consumed alcohol and/or a controlled substance, your ability to operate a vehicle has been visibly impaired.  You can be charged with Allowing Another to Operate While Intoxicated if you own or are in control of a vehicle and you allow another person to operate that vehicle knowing that he or she is intoxicated or visibly impaired.

What is the legal limit for BAC? 

If you are stopped by the police and they believe that you are under the influence of alcohol and/or controlled substances, they will often request that you take a Preliminary Breath Test (PBT), and later a DataMaster breath test.  If you refuse both, they may seek a warrant to obtain a blood sample and test it to obtain a BAC.

If you are over the age of 21, then the legal limit is 0.08 grams per 100 milliliters of blood, 210 liters of breath, or 67 milliliters of urine.

If you are less than 21 years of age then any presence of alcohol is prohibited unless taken for generally recognized religious purposes.  The statute defines "any bodily alcohol content" as 0.02 grams per 100 milliliters of blood, 210 lieters of breath, or 67 milliliters of urine.

Under the new law, if your BAC is above 0.17 grams per 100 milliliters of blood, 210 lieters of breath, or 67 milliliters of urine, special additional punishments can be imposed if you are convicted (see below).

What can you expect if you are convicted?

In any criminal case, the trial court judge has some discretion in sentencing.  However, this discretion is limited by the statute.  Here is a very basic description of the penalties.  Please note that in any case there may be additional or different punishments depending on the circumstances.

For Operating While Intoxicated or Operating While Visibly Impaired:

If this is your first offense:

• Community Service of up to 360 hours;
• Up to 93 days in jail;
• A fine of $100.00 to $500.00, plus other fines, costs, and fees; and
• Your vehicle may be immobilized. 

If your BAC is 0.17 or above and this is your first offense:

• Community Service of up to 360 hours;
• Up to 180 days in jail;
• A fine of $200.00 to $700.00, plus other fines, costs, and fees; and
• Your vehicle may be immobilized.

If this is your second offense within 7 years:

• Community Service of at least 30 days and not more than 90 days;
• At least 5 days, and up to 1 year in jail;
• A fine of $500.00 to $1,000.00, plus other fines, costs, and fees; and
• Your vehicle will be immobilized or forfeited.

If you have 2 or more previous convictions under any part of this statute:

• A fine of $500.00 to $5,000.00, plus other fines, costs, and fees, and either
• At least 1 year, and up to 5 years in prison, OR
• Probation with at least 30 days and up to 1 year in jail, AND
• Community Service of at least 60 days ant not more than 180 days.
• Your vehicle will be immobilized or forfeited.

The above penalties are changed if:

• As a result of your drunk driving someone is seriously injured or killed;
• You were driving with a person under 16 years of age in the vehicle;
• You were under 21 when you drove impaired.

Please note that there will be consequences with respect to your Driver's License if you are convicted with either Operating While Intoxicated or Operating While Visibly Impaired.

For Allowing Another to Operate While Intoxicated, the penalty could be:

• Up to 93 days in jail; and/or
• A fine of $100.00 to $500.00.

This penalty is increased if the driver caused serious injury or death by drunk driving.

You can see the original language of this statute on the State of Michigan website

A charge under this statute has serious consequences, but there are defenses.  It is very important if you have been or believe you may be charged that you contact our office as soon as possible. 

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.