Felony Drunk Driving - OWI 3rd Offense

A third offense for drunk driving under Michigan law, regardless of the number of years, is a felony that generally carries either 1 to 5 years in prison or 30 days to a year in a county jail.  As set forth in MCL 257.625:

If the violation occurs after 2 or more prior convictions, regardless of the number of years that have elapsed since any prior conviction, the person is guilty of a felony and shall be sentenced to pay a fine of not less than $500.00 or more than $5,000.00 and to either of the following:

(i) Imprisonment under the jurisdiction of the department of corrections for not less than 1 year or more than 5 years.

(ii) Probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. Not less than 48 hours of the imprisonment imposed under this subparagraph shall be served consecutively.

(d) A term of imprisonment imposed under subdivision (b) or (c) shall not be suspended.

(e) In the judgment of sentence under subdivision (a), the court may order vehicle immobilization as provided in section 904d. In the judgment of sentence under subdivision (b) or (c), the court shall, unless the vehicle is ordered forfeited under section 625n, order vehicle immobilization as provided in section 904d.

(f) In the judgment of sentence under subdivision (b) or (c), the court may impose the sanction permitted under section 625n.

It has been seven years since the provisions of "Heidi's Law" were signed into law, where Michigan uncapped the 10 year look back period for felony enhancement.  

Defenses to an OWI 3rd Charge

While all of the normal defense that apply to a misdemeanor drunk driving offense apply to an OWI 3rd offense, the accused is also entitled to additional procedural defenses that can help vindicate a person accused of drunk driving.  For example, the accused is entitled to a preliminary examination with 14 days of the arrest.  While most lawyers waive the preliminary examination, this is horrible strategy in all but the worst cases.  A preliminary examination is merely a probable cause hearing, and the district court judge is going to bind the defendant over on the charges 99.999% of the time.  But, this may be the single best opportunity for the defense to obtain sworn testimony from the arresting officer, eye witnesses, and the toxicologist.  Do not waive the preliminary examination in an OWI 3rd case unless you are absolutely certain that it is in your best interest to waive it!

Does Heidi's Law Regarding OWI 3rd Charges Violate the Ex Post Facto Clause?

We receive many calls regarding Heidi's Law, asking whether this statute violates the Ex Post Facto Clause.  Ex Post Facto means "after the fact," and the argument is that old drunk driving offenses from 10 or 20 years ago cannot be used to enhance a new offense to a felony.  The short answer is no, Heidi's Law does not violate the Ex Post Facto Clause.  Unless the charged offense took place before January 3, 2007, the provisions of Heidi's Law apply, and Ex Post Facto Clause is not violated.  Although shortly after Heidi's Law passed a circuit court decision held to the contrary, that decision was reversed by the higher courts.  Arguing Ex Post Facto is a waste of time.  At the time that this argument was being raised in 2007 and 2008, I was extremely skeptical, and I was scoffed at by members of the defense bar.  I was right.  See, People v Perkins, 280 Mich App 244 (2008).  But this argument was nothing new.  In 1954, the State of Michigan passed a law that increased the penalty for an OWI 2nd from a civil infraction to a misdemeanor.  In a 1959 appeal, the convicted motorist, who had been previously convicted of drunk driving in 1949, argued "that the [1954] amendment . . .  is being given a 'retroactive' effect unintended by the legislature if convictions occurring prior to the passage of the amendment are considered in applying the penalties of the act. The argument of retroactivity as applied to statutes prescribing more onerous penalties for multiple infractions has been considered often by this court. See People v. Millor, 302 Mich 537; People v. Palm, 245 Mich 396; and In re Brazel, 293 Mich 632. Heavier penalties for a second offense are well known to the law. They are in no manner ex post facto, nor do such amendments as we have before use have a retroactive effect. It is the subsequent offense that is punished more harshly, not the first." People v Miller, 357 Mich 400, 410 (1959). 

Other Strategies for Dealing With an OWI 3rd Offense

Although it may be a waste of time to quibble over older offenses and the Ex Post Facto Clause, raising factual and legal arguments regarding prior offenses may be meritorious.  For instance, hypothetically, John Smith is charged with OWI 3rd Offense in the Wayne County Circuit Court.  One of the prior offenses is from the Pontiac District Court in 1984, while the other offense is a civil infraction from Wisconsin in 1996.  A few significant questions immediately spring to mind: 1) Can the prosecutor provide adequate proof of the 1984 conviction?  2) Is this the same John Smith, which is a very common name? 3) Can the Wisconsin offense be used to enhance the charge? 4) Was John Smith represented by an attorney in these two cases?  Additional issues could arise with older offenses.  What if the defendant absolutely denies that he was convicted of older drunk driving cases?  And what if the defendant had no idea that he or she was supposedly convicted by another state?  Seriously, what if the defendant's record reflects a Florida drunk driving conviction and the defendant has never been to Florida?  We have actually seen these cases, including alleged convictions out of Michigan's Upper Peninsula when the Detroit-area client has never traveled further north than Saginaw.

Normal Penalties for an OWI 3rd Felony Drunk Driving

The penalties for an OWI 3rd include 1 to 5 years in prison and/or 30 days and up to 1 year in the county jail, but a normal drunk driving case does not result in a prison term, even after the defendant has two prior convictions.

Practically speaking, our courts cannot flood the prisons with convicted drunk drivers without releasing someone else to make space. The United States already has the largest prison population in the world, with some of the longest sentences.  Overcrowding is a major problem, and the prisons do not want to release the child molesters, drug dealers or violent criminals to make space for drunk drivers.  Moreover, the courts understand that once a person is remanded to prison, the convicted felon is going to lose everything, including the marriage, job, home, 401k, their heath care insurance, etc.  Judges, even really harsh judges, do not take that lightly because it effects more than the convicted drunk driver.  Moreover, people who go to prison have a 65% recidivism rate because they have lost so much during their prison term.  More than half of former prisoners find themselves back in prison within a few years.  At the end of the day, each one of these prisoners costs taxpayers over $20,000.00 a year, and these people essentially remain on the public dole after they get out since no one will employ them.

The bad news for the accused drunk driver facing an OWI 3rd charge:  Jail is a real and significant possibility.  While you may have been whisked out of the courtroom on prior cases by a smiling lawyer who got you probation, the courts have held that the 30 day minimum sanction must be imposed and cannot be waived.  If you plead guilty, or if you are found guilty, you will go to jail for at least 30 days.  Recently, even the Wayne County Jail has been holding people for the full term.  Worse still, many courts impose longer terms.  Sixty days for a garden variety OWI 3rd is not unusual, and some judges impose a six month sentence.

Probation on an OWI 3rd offense is imposed for up to 5 years, during which time the defendant may be required to attend AA, refrain from drinking, and submit to chemical testing.  Community service, steep fines, and possible forfeiture of the vehicle are all also possible.

License Sanctions for an OWI 3rd

The Secretary of State may revoke the driver's license for a minimum of 5 years if there is a prior revocation within 10 years.  If there is no prior revocation but there is a prior conviction within 7 years, then the motorist will face a lifetime revocation but is eligible after one year of proven sobriety to apply to the DLAD.  Finally, if the felony charge rests upon very old offenses, then (oddly enough) the motorist might be convicted of a felony but have a valid driver's license after paying reinstatement fees after 30 days, with an additional 150 days restricted driving after the first 30 days.