Drunk Driving FAQs & Penalty Charts

Under Michigan law, an individual who operates a motor vehicle with blood alcohol content (BAC) of .08 percent or above is guilty of operating while intoxicated (OWI). It is important to know your rights and what penalties you face if you are arrested for OWI or a related offense. These frequently asked questions will help you understand the legal process, from a police stop to a court appearance and possible penalties.

  1. Do you have to be "drunk" to be guilty of drunk driving?
  2. Legally, what is "drunk driving?
  3. What amount of alcohol do I need to drink to have a blood alcohol content of .08 or higher?
  4. What is required for a police officer to stop me to investigate whether or not I am driving under the influence?
  5. What happens to me if I am stopped by a police officer for investigation of drunk driving?
  6. If I'm stopped by a police officer and he asks me if I have been drinking, what should I say?
  7. What will happen if the officer who pulls me over suspects that I have been driving under the influence?
  8. What should I do if I'm asked to take a field sobriety test?
  9. What happens if the officer believes that I have not performed the field sobriety test satisfactorily?
  10. Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?
  11. What is a blood alcohol test?
  12. The officer never gave me a Miranda warning: Can I get my case dismissed?
  13. Why am I being charged with two crimes?
  14. How can I find a qualified drunk driving lawyer?
  15. What will a lawyer cost?
  16. What are the penalties for driving while under the influence?
  17. What are the changes that involve the "Super Drunk" law?

1. Do you have to be "drunk" to be guilty of drunk driving?

No. Years ago, a drunk driving charge meant someone was "drunk" in the way all of us commonly understand. But today, intoxication as we know it, is not required for one to be guilty of drunk driving. During the last 10 years, laws against drunk driving have changed radically, and today they are much more severe.

You may not think you are drunk. Those around you may not think you are drunk. Indeed, for the purpose of every other situation except driving, you may not even be considered drunk. But if your blood alcohol level is .08 or higher, you may be found guilty of a drunk driving offense under the current definition of the law. If you are convicted, you will suffer some harsh penalties.

2. Legally, what is "drunk driving?"

A drunk driving offense, which is now called operating while intoxicated (OWI), means:

  1. Driving with any amount of alcohol in your system, which results in a person's ability to operate a motor vehicle being visibly impaired.
  2. Operating a motor vehicle while under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.
  3. Driving with a level of alcohol in your system that amounts to a measurement of .08 percent of blood alcohol content (BAC). To be guilty of this offense, absolutely no impairment of any of your physical abilities is necessary. You may well be the world's most talented, careful and safest driver, but if your BAC registers .08 or above, you are guilty of a criminal offense.
  4. Operating a motor vehicle with any amount of a controlled substance such as marijuana or cocaine in a person's body.

3. What amount of alcohol do I need to drink to have a blood alcohol content of .08 or higher?

Each person's blood alcohol content from drinking certain amounts of alcohol will vary, depending upon a number of factors. The main factor is your weight. To calculate your blood alcohol content based upon having normal drinks such as a 12-ounce beer, a 4-ounce glass of wine, or a single mixed drink containing a one ounce shot of 100-proof liquor, the following rule of thumb is an illustration:

120 lbs:
one drink in one hour - .032
two drinks in one hour - .064
three drinks in one hour - .096

180 lbs:
one drink in one hour - .021
two drinks in one hour - .042
three drinks in one hour - .063
four drinks in one hour - .084

4. What is required for a police officer to stop me to investigate whether or not I am driving under the influence?

The officer must have what is legally termed a "reasonable suspicion," either that you have been in an accident, or based on something unusual that is actually observed about the way a person is driving or observation of a traffic violation. This is a low standard. It can be satisfied by virtually anything that appears out of the ordinary and that might be a sign of a driver being under the influence. In Michigan, these can also include an illegally tinted windshield or not using seat belts.

5. What happens to me if I am stopped by a police officer for investigation of drunk driving?

If you are stopped, always be courteous and cooperative with the officer even if you are free of any type of alcohol or drugs, and even if you are certain that your driving did not show anything unusual. Never argue with the officer. Law enforcement is a tough, often nerve wracking job and the "attitude" you show to the officer can often make all the difference as to whether or not the encounter will be an unpleasant one for you, and how he/she may react if asked about a charge reduction or dismissal.

6. If I'm stopped by a police officer and he asks me if I have been drinking, what should I say?

You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication — and it may explain the odor of alcohol on your breath.

7. What will happen if the officer who pulls me over suspects that I have been driving under the influence?

The officer will ask you to get out of the car and will instruct you to perform a series of "field sobriety tests." These are standard physical ability measures and they include:

  • Reciting the alphabet from A to Z and counting backwards
  • Walking heel to toe along a straight line
  • Standing on one foot for a few seconds

In addition to these tests, some officers typically have certain field sobriety testing devices they use. One such device is a portable breath tester (PBT), which you blow into; another is a light to shine in your eyes in order to test your pupil reaction. It is very important that if you suffer from any chronic physical problems, such as difficulty with your balance, problems walking or with your legs or feet, or problems with your lungs or eyes that you inform the officer of these things before you go through the field sobriety tests (FST).

8. What should I do if I'm asked to take a field sobriety test?

Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably "fails." Thus, in most cases a polite refusal may be appropriate.

9. What happens if the officer believes that I have not performed the field sobriety test satisfactorily?

You will probably be asked to take a preliminary breath test (PBT). You should be told that the only penalty if you refuse the PBT is a $100 fine. If you fail either type of test, you will be told that you are under arrest for driving under the influence. You will be handcuffed, searched for weapons, placed in the back of the officer's car and taken to a jail for further tests. At the jail, you will also be booked and held until you post bail or until a judge releases you on your own recognizance without bail. Once again, as upsetting and as stressful as being arrested is, it is essential that you continue to act courteously and cooperatively with law enforcement officers. Do not argue, threaten or become belligerent in any way. This type of behavior will only make the experience even more unpleasant for you.

10. Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?

As a general rule, there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some situations, there is a right to consult with counsel upon being arrested or before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for one.

11. What is a blood alcohol test?

  • Drawing a sample of blood from your arm;
  • Obtaining a urine sample;
  • Obtaining a breath sample by having you blow into a machine called a breathalyzer. [This is different from the field (road) sobriety breath device (PBT) described above. The breathalyzer is much more sophisticated and exact.]

This is a physical procedure to determine how much alcohol you have in your system. There are three ways of doing this test. Unless you are physically unable to take that test, you must do so. If you do not, you can lose your driving privileges. If, and only if, you take the requested test, you can then request one type of test of your own and the officer must act reasonably to obtain this test for you. If you refuse the officer's requested test, it is likely he will seek a search warrant and forcibly take blood from you.

12. The officer never gave me a Miranda warning: Can I get my case dismissed?

No. The officer is supposed to give a Fifth Amendment warning (Miranda) after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

Of more consequence in most cases is the failure to advise you of the state's "implied consent" law — your legal obligation to take a chemical test and the results if you refuse. This can affect the suspension of your license.

13. Why am I being charged with two crimes?

The traditional offense is "operating under the influence of liquor." In recent years, however, many states have also enacted a second, so-called "per se" offense: driving with an unlawful blood alcohol level (.08 in Michigan). When both offenses are charged, the defendant can only be convicted of one or the other, a lesser charge or nothing.

14. How can I find a qualified drunk driving lawyer?

When you meet with the attorney, make sure of three things:

  1. He has extensive experience litigating driving while intoxicated charges
  2. He has a reputation for going to court hearings in appropriate cases rather than just "pleading out" his clients
  3. The financial terms of representation are clear

The best way to find a good OWI/UBAL lawyer is by reputation. There are a few attorneys who have statewide or national reputations; these, of course, are expensive. Thus, the best approach is to ask other attorneys or court workers in the jurisdiction, or acquaintances who have also shared this experience.

15. What will a lawyer cost?

This varies, of course, by the reputation and experience of the lawyer and by the geographic location. As with doctors, generally the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each.

The range of fees is huge. A general practitioner in a small community may charge only $500; a drunk driving specialist with a national reputation may charge $7,500. In addition, the fee may vary by such other factors as:

  • Is the offense a misdemeanor or felony?
  • If prior convictions are alleged, the procedures for attacking them may add to the cost.
  • The fee may or may not include trial or appeals.
  • Administrative license suspension procedures may also be extra.
  • The lawyer may charge a fixed fee, or he may ask for a retainer in advance to be applied against hourly charges.
  • Costs such as witness fees, independent blood analysis, service of subpoenas, etc. may be extra.

Whatever the fee quoted, you should ask for a written agreement and make sure you understand all the terms.

16. What are the penalties for driving while under the influence?

Criminal Sentencing/Administrative Consequences-Repeat Offender
(Alcohol Convictions)

1st offense, (no priors)

2nd offense or any prior 625 crime within 7 years

3rd offense or two prior 625 crimes

1st offense

Misdemeanor:
Fine/Jail/Community Service:
1 or more of the following: Up to 93 days jail; $100 - $500 fine; up to 360 days community service.
Licensing: 30/150 susp/rest 6 points Court-ordered ignition interlock permissive
Plate confiscation: None
Immobilization: Permissive up to 180 days
Reg. Deny: None
Forfeiture: None

OWI/UBAC §625(1) >.08 Drunk Driving OWI/OUID/UBAC - Per Se

2nd offense

Misdemeanor:
Fine/Jail/Community Service:
$200 - $1,000 fine AND one or more of the following: 5 days to 1 year jail; 30-90 days community service mandatory.
Licensing: minimum 1 year revocation/denial.
Plate confiscation: Required
Immobilization: Required 90 to 180 days unless forfeited.
Reg. Deny: None
Forfeiture: Permissive

OWI/UBAC §625(1) >.08 Drunk Driving
OWI/OUID/UBAC - Per Se

3rd offense

Felony:
Fine/Jail/Community Service:
$500 - $5,000 fine AND either of the following:
1 - 5 years prison; probation with 30 days to 1 year jail AND 60 - 180 days community service.
Licensing: minimum 1 to 5 year rev/denial
Plate confiscation: Required
Immobilization: Required 1 to 3 years unless Forfeited
Reg. Deny: Required
Forfeiture: Permissive

OWI §625(3) Impaired

1st offense

Misdemeanor:
Fine/Jail/Community Service:1 or more of the following: Up to 93 days jail; $300 fine or; up to 360 days community service.
Licensing: 90 days restricted (180 for drugs) 4 points
Plate confiscation: None
Immobilization: Permissive up to 180 days
Reg. Deny: None
Forfeiture: None

OWI §625(3) Impaired

2nd offense

Misdemeanor:
Fine/Jail/Community Service:
$200 - $1,000 fine AND one or more of the following: 5 days to 1 year jail; 30-90 days community service.
Licensing: minimum 1 year revocation/denial.
Plate confiscation: Required
Immobilization: Required 90 to 180 days unless forfeited.
Reg. Deny: None
Forfeiture: Permissive

OWI §625(3) Impaired

3rd offense

Felony:
Fine/Jail/Community Service:
$500 - $5,000 fine AND either of the following:
1 - 5 years prison; probation with 30 days to 1 year jail AND 60 - 180 days community service.
Licensing: minimum 1 to 3 years rev/denial
Plate confiscation: Required
Immobilization: Required 1 to 3 years unless Forfeited
Reg. Deny: Required
Forfeiture: Permissive

OWPD Operating with Presence of Drugs §625(8)

1st offense

Misdemeanor:
Fine/Jail/Community Service:
1 or more of the following: Up to 93 days jail; $100-$500 fine or, up to 360 days community service.
Licensing: 30/150 susp/rest 6 points Court-ordered ignition interlock permissive
Plate confiscation: None
Immobilization: Permissive up to 180 days
Reg. Deny: None
Forfeiture: None

OWPD Operating with Presence of Drugs §625(8)

2nd offense

Misdemeanor:
Fine/Jail/Community Service:
$200 - $1,000 fine AND one or more of the following: 5 days to 1 year jail; 30 - 90 days community service.
Licensing: minimum 1 year rev/denial
Plate confiscation: Required
Immobilization: Required 90 to 180 days unless forfeited.
Reg. Deny: None
Forfeiture: Permissive

OWPD Operating with Presence of Drugs §625(8)

3rd offense

Felony:
Fine/Jail/Community Service:
$500 - $5,000 fine AND either of the following:
1 - 5 years prison; probation with 30 days to 1 year jail AND 60 - 180 days community service.
Licensing: minimum 1 to 5 year rev/den
Plate confiscation: Required
Immobilization: Required 1 to 3 years unless Forfeited
Reg. Deny: Required
Forfeiture: Permissive

OWI Death/Injury §624(4) & (5)

1st offense

Felony:
Fine/Jail/Community Service:
Death - prison up to 15 years OR $2,500 - $10,000 fine, or both. Injury - prison up to 5 years OR $1,000 - $5,000 fine, or both. Emer. Responder Death - prison up to 20 years OR $2,500 to $10,000 fine, or both.
Licensing: minimum 1 year revocation/denial 6 points
Plate confiscation: Required
Immobilization: Required up to 180 days
Reg. Deny: None
Forfeiture: Permissive

OWI Death/Injury §624(4) & (5)

2nd offense

Felony:
Fine/Jail/Community Service:
Death - prison up to 15 years OR $2,500 - $10,000 fine, or both. Injury - prison up to 5 years OR $1,000 - $5,000 fine, or both. Emer. Responder Death - prison up to 20 years OR $2,500 to $10,000 fine, or both.
Licensing: minimum 5 year revocation/denial
Plate confiscation: Required
Immobilization: Required 90 to 180 days unless forfeited
Reg. Deny: None
Forfeiture: Permissive

OWI Death/Injury §625(4) & (5) 3rd offense

Felony:
Fine/Jail/Community Service:
Death - prison up to 15 years OR $2,500 - $10,000 fine OR both.
Injury - prison up to 5 years OR $1,000 - $5,000 fine OR both.
Emer. Responder Death - prison up to 20 years OR $2,500 to $10,000 fine or both.
Licensing: minimum 1 to 5 year rev/den
Plate confiscation: Required
Immobilization: Required 1 to 3 years unless Forfeited
Reg. Deny: Required
Forfeiture: Permissive

Zero Tolerance §625(6) Minor Drunk Driving (.02<.08)

1st offense

Misdemeanor:
Fine/Jail/Community Service:
Up to $250 fine OR up to 60 days community service, or both.
Licensing: 30 days restricted
Plate confiscation: None
Immobilization: None
Reg. Deny: None
Forfeiture: None

Zero Tolerance §625(6) Minor Drunk Driving(.02<.08)

2nd offense

Misdemeanor:
Fine/Jail/Community Service:
One or more of the following: up to 60 days community service; up to $500 fine; up to 93 days jail.
Licensing: 90 days susp OR if prior §625 then minimum 1 year revocation/denial.
Plate confiscation: None
Immobilization: None
Reg. Deny: None
Forfeiture: None

Child Endangerment §625(7) Drunk Driving with Under 16 Year Old in Vehicle

1st offense

Misdemeanor:
Fine/Jail/Community Service:
$200 - $1,000 fine AND one or more of the following: 5 days to 1 year jail; 30-90 days community service.
Licensing: 90/90 susp/rest 6 points
Plate confiscation: None
Immobilization: Permissive up to 180 days
Reg. Deny: None
Forfeiture: Permissive

Child Endangerment §625(7) Drunk Driving with Under 16 Year Old in Vehicle

2nd offense

Felony:
Fine/Jail/Community Service:
$500 - $5,000 fine AND either of the following: 1-5 years prison; probation with 30 days to 1 year jail AND 60-180 days community service.
Licensing: minimum 1 year revocation/denial.
Plate confiscation: Required
Immobilization: Required 90 to 180 days unless forfeited
Reg. Deny: None
Forfeiture: Permissive

Child Endangerment §625(7) - Zero Tolerance w/occupant Under 16 Years Old in Vehicle

Misdemeanor:
Fine/Jail/Community Service:
1st - One or more of the following: Up to 60 days community service; Up to $500 fine; Up to 93 days in jail.
2nd - $200 - $1000 fine AND one or more of the following: 5 days to 1 year jail; 30-90 days community service.
Licensing: 1st - 90/30 susp/rest; 2nd - revoke
Plate confiscation: See 1st, 2nd offense
Immobilization: See 1st & 2nd
Reg. Deny: None
Forfeiture: Permissive

.04 CDL §625m(1) Commercial Driving with Illegal Alcohol Level

1st offense

Misdemeanor:
Fine/Jail/Community Service:
Up to $300 fine OR up to 93 days jail or both.
Licensing: CDL - 1 year susp, OPR 90 days rest, HAZ - 3 year susp. 0 points
Plate confiscation: None
Immobilization: Permissive up to 180 days
Reg. Deny: None
Forfeiture: None

.04 CDL §625m(1) Commercial Driving with Illegal Alcohol Level

2nd offense

Misdemeanor:
Fine/Jail/Community Service:
Up to $1,000 fine OR up to 1 year prison or both.
Licensing: CDL - minimum 10 year revocation, OPR 1 year rev/den.
Plate confiscation: Required
Immobilization: Required 90 to 180 days
Reg. Deny: None
Forfeiture: None

.04 CDL §625m(1) Commercial Driving with Illegal Alcohol Level

3rd offense

Felony:
Fine/Jail/Community Service:
$500 - $5,000 fine and either of the following: prison from 1 - 5 years; probation with 30 days to 1 year jail AND 60 - 180 days community service.
Licensing: CDL - rev for Life-if prior
Approval OPR minimum 5 yr den/rev
Plate confiscation: Required
Immobilization: Required 1 to 3 years
Reg. Deny: Required
Forfeiture: None

OWI with HIGH BAC

1st offense

Misdemeanor:
Fine/Jail/Community Service:
1 or more of the following: Up to 6 months jail; $200 - $700 fine; up to 360 hours community service.
Licensing: 45/320 susp/rest 6 points Court-ordered ignition interlock mandatory
Plate confiscation: None
Immobilization: Permissive up to 180 days
Reg. Deny: None
Forfeiture: Permissive $2000 police cost

OWI with HIGH BAC

2nd offense

Misdemeanor:
Fine/Jail/Community Service:
$200 - $1,000 fine AND one or more of the following: 5 days to 1 year jail; 30-90 days community service mandatory.
Licensing: minimum 1 year revocation/denial.
Plate confiscation: Required
Immobilization: Required 90 to 180 days unless forfeited.
Reg. Deny: None
Forfeiture: Permissive

OWI with HIGH BAC

3rd offense

Felony:
Fine/Jail/Community Service:
$500 - $5,000 fine AND either of the following:
1 - 5 years prison; probation with 30 days to 1 year jail AND 60 - 180 days community service.
Licensing: minimum 1 to 5 year rev/denial
Plate confiscation: Required
Immobilization: Required 1 to 3 years unless Forfeited
Reg. Deny: Required
Forfeiture: Permissive

17. What are the changes that involve the "Super Drunk" law?

Michigan's "Super Drunk" law imposes a harsh punishment on drivers who operate a motor vehicle with a blood alcohol content (BAC) of .17percent or higher. Even if this is your first offense, you could be subject to enhanced penalties. If you have recently been charged with a Michigan Super Drunk offense, you should immediately contact a qualified OWI lawyer to begin preparing to fight your charge.

If you are charged with a standard OWI charge, you could face up to 93 days in jail. However, the maximum jail sentence for a Super Drunk charge is almost doubled to 180 days. The period of license suspension is also increased. While a typical OWI can result in a 30 days suspension and 150 days of restricted driving, a Super Drunk charge means no driving for 45 days and 320 days of driving with a restricted permit. You will also be required to have an ignition interlock device installed during the restricted driving period. This device is expensive and subject to problems which have resulted in jail time without a valid reason.

A Super Drunk charge can also double the amount of fines you will pay upon conviction. Instead of paying $100 to $500 in fines, you may be ordered to pay $200 to $700. You could also be ordered to receive alcohol treatment for a minimum of one year. This is expensive and can be burdensome.

The Super Drunk enhancement applies only if you have no prior offenses within seven years. If you do have a prior offense within seven years, then you will probably be charged as a second offender, no matter how high (or low) your breath/blood test results.

The effect of a Michigan Super Drunk charge is far reaching. When your insurance provider discovers your Super Drunk conviction, you could be required to pay higher premiums. In extreme circumstances, your insurer could drop your coverage, rendering you unable to driving. Your criminal record can also be accessed by third parties, which could make things difficult when applying for employment.

As you can see, the stakes are high when facing a Michigan Super Drunk charge. Fortunately, the Constitutional Law Center offers the experience and knowledge to fight your case. The prosecution will use your BAC test results as evidence of your guilt; however, we may conduct an independent investigation to determine if the results are accurate. If the test was administered incorrectly or there was a problem with the breathalyzer machine, your results may be challenged and not allowed as evidence.

OWI with HIGH BAC

1st offense

Misdemeanor:
Fine/Jail/Community Service:
1 or more of the following: Up to 6 months jail; $200 - $700 fine; up to 360 hours community service.
Licensing: 45/320 susp/rest 6 points Court-ordered ignition interlock mandatory
Plate confiscation: None
Immobilization: Permissive up to 180 days
Reg. Deny: None
Forfeiture: Permissive $2000 police cost

OWI with HIGH BAC

2nd offense

Misdemeanor:
Fine/Jail/Community Service:
$200 - $1,000 fine AND one or more of the following: 5 days to 1 year jail; 30-90 days community service mandatory.
Licensing: minimum 1 year revocation/denial.
Plate confiscation: Required
Immobilization: Required 90 to 180 days unless forfeited.
Reg. Deny: None
Forfeiture: Permissive

OWI with HIGH BAC

3rd offense

Felony:
Fine/Jail/Community Service:
$500 - $5,000 fine AND either of the following:
1 - 5 years prison; probation with 30 days to 1 year jail AND 60 - 180 days community service.
Licensing: minimum 1 to 5 year rev/denial
Plate confiscation: Required
Immobilization: Required 1 to 3 years unless Forfeited
Reg. Deny: Required
Forfeiture: Permissive

You May Lose Any Advantage You Have If You Wait To Contact Us

Prosecutors are able to amend and increase the nature of your offense if you wait too long. Witnesses may lose memory or become unavailable.

There is no fee for us to discuss your case by phone, email or during an office consultation. Call 616-235-4357 to schedule an initial consultation, or use our online contact form.