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I was arrested for drunk driving. Is this a felony? Will I go to jail? These are essential questions to have answered as you evaluate your defense. In most cases, a defendant’s first drunk driving case will be a misdemeanor, which means a maximum sentence of less than a year in jail – most typically less than 93 days. However, if the defendant has a total of three drunk driving convictions in his lifetime, or even if it is a first offense and causes serious injury or death to a person, then the charge can be a felony with serious prison time.
In this blog, I will address the elements of some common ways a person can be found guilty of drunk driving, including examining the likely sentences for each. Within this discussion, I will look at how the Michigan Sentencing Guidelines can affect a drunk driver’s possible sentences.
Misdemeanor Drunk Driving – For first-time drunk drivers, most are found guilty with a “per se” statute of Operating While Intoxicated that requires only two things: 1) you are driving an automobile; and 2) you have a blood alcohol level over .08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. Beginning on October 1, 2021, the alcohol blood level will increase back to .10 grams. MCLS 257.625(1). Under this per se definition, if you drive an automobile, and have a blood alcohol level over .08, then you are guilty of the misdemeanor of drunk driving.
In addition to Operating While Intoxicated, there are other misdemeanor drunk-driving charges. A person can be guilty of Operating While Visibly Impaired when his ability to operate a motor vehicle is “visibly impaired” because of the consumption of a controlled substance or intoxicating substance. Also, a person under 21 years of age who has any blood-alcohol level is guilty of drunk driving under Michigan’s zero-tolerance law.
In any event, as a first-time drunk driving offender, you would likely only face probation. A judge sentencing a drunk driver in District Court is required to have the defendant take a Michigan Alcohol Screening Test (MAST) to evaluate his or her potential alcohol/substance abuse issues. Very importantly, even for a first-time offender, all convictions for drunk driving will come with driver’s license restrictions from the Secretary of State. However, the Michigan Sentencing Guidelines are inapplicable to misdemeanors and would not apply to District Court sentences.
Repeat Offenders – If you face your third drunken driving charge — for any combination of misdemeanor drunk driving offenses described above — then the charge becomes a felony, which comes with it a possibility of prison time and therefore impact by the Michigan Sentencing Guidelines. To be guilty of a felony of drunk driving, the prosecution would need to prove: 1) you were driving an automobile; 2) you have a blood alcohol level over .08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine; and 3) you have two prior drinking and driving-related offenses.
In such a case, the Michigan Sentencing Guidelines do apply, but the sentence is also subject to specific mandatory provisions within the drunk driving statute itself. The drunk driving statute requires a person sentenced for an OWI 3rd to be sentenced to 1 to 5 years in prison, or probation with a minimum of 30 days and up to a maximum of 1 year in jail (along with 60 to 180 days of community service). Whether a person avoids prison and receives a sentence of probation generally would be determined by the Michigan Sentencing Guidelines.
The mechanics of the Michigan Sentencing Guidelines require the sentencing judge to score the offender’s “Prior Record Variables,” known as “PRVs,” and “Offense Variables,” known as “OVs.” These two numbers — for PRVs and OVs — are then plotted on a sentencing grid to produce a recommended sentence. In the case of a third offense drunk driving, a defendant’s prior unrelated drinking conviction if a felony could be enough to send him or her to prison because of the Sentencing Guidelines. Likewise, an injury to a person or damage to property could score enough OV points to put a drunk driver in prison.
Drunk Driving Causing “Serious Impairment Of Body Function” – In any case where a defendant is drunk driving and causes “serious impairment of body function” to another person, then the maximum penalty is five years imprisonment. However, under the same circumstances, if the defendant had a blood alcohol of .17 (super-drunk), then the maximum penalty would jump to ten years.
In such cases, the scoring of OVs under the Michigan Sentencing Guidelines would most certainly recommend a prison sentence. OVs for physical injury to the victim, the value of property damaged, degree of negligence, and operator affected by alcohol would put a defendant in a specific prison sentence cell on the Guideline grid. Unless a sentencing judge could be persuaded to deviate from the Michigan Sentencing Guidelines, you most certainly would be facing prison time with little chance of being sentenced to probation.
Drunk Driving Causing Death – If there were any doubt that a person guilty of drunk driving causing serious impairment of body function would be sentenced to prison, then there certainly is no doubt if death results. The maximum penalty for drunk driving causing death is fifteen years. In the case of a person with a blood alcohol of .17 (super-drunk), the maximum penalty increases to twenty years.
The same OVs that play a part in drunk driving causing serious impairment of body function apply to those involving death. OV3 for personal injury to the victim must be scored at 100 points which immediately places the defendant in the top quadrant on the sentencing grid. This factor alone is enough to ensure the Sentencing Guidelines recommend a lengthy prison sentence for a person convicted of drunk driving causing death. (In the case of a person convicted under the super-drunk driving statute, there would undoubtedly be additional prison time).
Summary – Drunk driving cases come in all shapes and sizes. A first-time offender who has too many drinks on Saturday night before heading home is not likely to face anything more than a misdemeanor and probation. The same driver who repeatedly drives drunk and has at least two prior convictions could easily find himself a resident in one of Michigan’s prisons. Similarly, a person — even a first-time offender — who drives drunk, resulting in serious impairment or death to another person, will face the strong possibility of a lengthy stay in prison.
Each of these felony scenarios is affected by the Michigan Sentencing Guidelines. The Sentencing Guidelines are a tool judges must look at and often rely on to produce sentences in drinking and driving offenses. This is problematic because many of the same elements of drinking offenses are contained in the OVs a judge scores under the Sentencing Guidelines. The result of the interplay between the drunk driving statute and the Sentencing Guidelines can be lengthy prison sentences.
You must have competent counsel who understands the legal constraints of the drunk driving laws and the artistic interpretation involved with the Michigan Sentencing Guidelines. Don’t trust your future to any lawyer. Call Mark Satawa to find out how (or if) the Michigan Sentencing Guidelines will affect your case.