Appealing an OWI conviction in Michigan

A person convicted of OWI in Michigan has an appeal route set by statute and court rule. For a misdemeanor tried in district court, there is "a right of appeal to the circuit court in the county in which the misdemeanor or ordinance violation was committed"; for a felony or misdemeanor tried in circuit court, the appeal goes to the Court of Appeals.^[1] The Michigan Constitution guarantees "an appeal as a matter of right," except that an appeal by an accused who pleads guilty or no contest is by leave of the court as provided by law.^[6]

This page explains the two routes, the deadlines, appeals after a plea, bond and stays, and what the reviewing court looks at. It does not predict whether any appeal would succeed. A criminal appeal is separate from a challenge to a Secretary of State licensing decision, which is covered in appealing a license sanction to circuit court.

Which court hears the appeal

Where the case was decided	Appeal goes to	Type of appeal
District court, after a trial (first or second OWI, OWVI and other misdemeanors)	Circuit court of the county where the offense was committed[1]	By right[3]
District court, after a guilty or no-contest plea	Circuit court[3]	By application for leave[3][1]
Circuit court, after a trial (felony OWI)	Court of Appeals[1]	By right, within 42 days[4]
Circuit court, after a plea	Court of Appeals	By application for leave[1][4]
Circuit court ruling on a district-court appeal	Court of Appeals	Only by application for leave, if granted[1]

A first or second OWI is a misdemeanor heard in district court, and felony OWI cases are tried in circuit court after bindover.^[7][8][9] A circuit-court appeal from district court "must be heard by a judge other than the judge that conducted the trial."^[3]

Misdemeanor appeals: the 21-day deadline

The court rules state that "the time limit for an appeal of right is jurisdictional," and an appeal of right to circuit court must be taken within 21 days after entry of the judgment, order or decision appealed.^[2] To give the circuit court jurisdiction, the appellant files the claim of appeal and the appeal fee (unless indigent) with the circuit court clerk within that time.^[10] Other papers include a copy of the judgment and either the court reporter's certificate or a statement that the transcript has been ordered.^[10]

If the 21 days pass, a late application for leave may be filed with an explanation of the delay, but not more than 6 months after entry of the judgment.^[11] A motion for a new trial in district court is also due within 21 days after judgment; if no appeal has been taken, a delayed motion may be filed within the time for an application for leave.^[12]

Appointed counsel for a misdemeanor appeal

If the court imposed jail, even suspended, and the defendant is indigent, a lawyer must be appointed if the defendant requests one within 14 days after sentencing.^[13] The appointing authority must act on the request within 14 days after receiving it unless a post-judgment motion is pending, and if a lawyer is appointed, the 21 days to appeal start on the day of the appointment.^[14] See getting a court-appointed lawyer.

Appeals after a plea

MCL 770.3 says that "all appeals from final orders and judgments based upon pleas of guilty or nolo contendere shall be by application for leave to appeal."^[1] In a felony case, the court must tell the defendant before accepting the plea that any appeal will be by application for leave and not by right.^[15]

• District court. A defendant may not challenge a plea on appeal unless the defendant moved in the trial court to withdraw it for noncompliance with the rules.^[16] That motion may be made before or after sentence.^[17]
• Conditional pleas (felony). A conditional plea preserves a specified pretrial ruling for appeal and lets the defendant withdraw the plea if that ruling is overturned; the appeal is by application for leave only.^[18]

The plea agreements guide covers the plea process.

Felony OWI appeals to the Court of Appeals

In a felony case, an appeal of right must be filed within 42 days after entry of the judgment, or after an order on appointed counsel or a timely post-judgment motion.^[4] An application for leave filed for a defendant is due within the later of 6 months after the judgment or 42 days after certain counsel or transcript events.^[4]

Right after a felony sentence, the court must advise the defendant on the record of the right to appellate review (after a trial) or to apply for leave (after a plea), that a lawyer will be appointed if the defendant cannot afford one, and of the deadline to request one.^[19] The request for a lawyer is due within 42 days after the judgment of sentence to appeal by right after a trial, or within 6 months after a plea, and it is deemed filed when the court or the Michigan Appellate Assigned Counsel System receives it, whichever is earlier.^[19] Felony sentencing issues are covered in felony OWI sentencing guidelines.

Bond and stays while the appeal is pending

Filing an appeal does not by itself stop the sentence. In a circuit-court appeal, "a criminal judgment may be executed immediately even though the time for taking an appeal has not elapsed," and bond pending appeal is within the trial court's discretion.^[20] A motion for bond or a stay may not be filed in the circuit court unless the trial court has already decided one, and the circuit court may stay enforcement of a trial-court judgment on terms it considers just.^[20]

The Court of Appeals rule is similar: an appeal does not stay a trial-court judgment unless the trial court or the Court of Appeals orders otherwise, a bond motion goes first to the trial court, and criminal bond "must be sufficient to guarantee the appearance of the defendant."^[21]

For the driver's license, MCL 257.625b(6) provides that if the judgment and sentence are appealed to circuit court, the court may order the Secretary of State, ex parte, to stay the suspension, revocation or restricted license pending the outcome of the appeal.^[5] The license consequences themselves are explained in OWI driver's license consequences.

What the reviewing court looks at

Appeals to the circuit court "are heard on the original record."^[22] The appellant is responsible for getting the transcript filed and must order the full transcript of testimony and other trial-court proceedings unless a court order or the rule provides otherwise.^[22] The circuit court decides the appeal by oral or written opinion and issues an order that is its judgment; if the appellant does not pursue the appeal under the rules, the court gives notice that the appeal will be dismissed unless the problem is fixed within 14 days.^[23]

Issues raised on appeal in OWI cases include pretrial rulings such as suppression decisions. On a suppression ruling, the trial court's findings of fact are reviewed for clear error, and its ultimate decision is reviewed de novo.^[24] See motions to suppress. Double jeopardy is another issue the appellate courts have decided: the Supreme Court held that a defendant cannot be convicted of both OWI and OWI causing serious impairment for the same incident.^[25]

Where the appeal fits in the case

1. Trial or plea, then sentencing. See jury trials and how OWI sentencing works.
2. Any post-judgment motion, such as a motion for new trial or to withdraw a plea.^[12][16]
3. Claim of appeal or application for leave, filed within the deadline.^[2][11][4]
4. Transcript, briefs and decision on the record.^[22][23]

Every time limit in the case is collected on the OWI case deadlines page.