Bond and release conditions in Michigan OWI cases

In a Michigan OWI case, the court decides at arraignment whether the defendant is released before trial and on what terms. The default under the court rules is release on personal recognizance or an unsecured bond, with three basic conditions: appear as required, do not leave the state without permission, and commit no crime.^[1] If the court finds that is not enough to ensure appearance or protect the public, it may add conditions such as no alcohol, testing and treatment.^[2]

This page covers how release is decided, the conditions the rules allow, the OWI-specific release rule for drivers whose chemical test is pending, and what can happen after a violation. The first court appearance is covered in the arraignment guide.

Before the judge: interim bond and holding until sober

OWI arrests are excluded from the rule requiring police to release misdemeanor arrestees with an appearance ticket.^[5] A person who, in the officer's opinion, is under the influence must be held until in a proper condition to be released or until the next session of court.^[6] If no magistrate is available, a person arrested for a misdemeanor punishable by up to 1 year may post an interim bond, in an amount set by the officer that is no more than the maximum possible fine and no less than 20% of the minimum possible fine.^[7]

The three release options at arraignment

At arraignment, the court must order one of three things: custody where the rule allows denial of release, release on personal recognizance or an unsecured appearance bond, or conditional release "with or without money bail (ten percent, cash or surety)."^[8] A person accused of a crime is entitled to bail except as otherwise provided by law, and bail must not be excessive.^[9] The court rule allows denial of release only for listed charges: murder or treason, certain violent felonies by people already on release or with two or more prior violent-felony convictions in 15 years, first-degree criminal sexual conduct, armed robbery, and kidnapping to extort, and in each case only if the court finds that proof of guilt is evident or the presumption great.^[10]

What the court considers

The court must consider relevant information, including:^[11]

• the defendant's prior criminal record and record of appearing in court;^[11]
• the defendant's "history of substance abuse or addiction";^[11]
• the seriousness of the charge;^[11]
• employment and financial history as they relate to posting money bail;^[11]
• ties to the community; and^[11]
• other listed factors, such as mental condition, whether responsible community members would vouch for or monitor the defendant, and any other facts bearing on the risk of nonappearance or danger to the public.^[11]

If the court requires money bail, it must state its reasons on the record.^[11]

Conditions a court may impose

When personal recognizance is not enough, MCR 6.106(D)(2) lists conditions "reasonably necessary to ensure the appearance of the defendant as required and the safety of the public."^[2] Conditions with particular relevance to OWI cases include:

Condition	Rule
Not use alcohol or illicitly use any controlled substance	MCR 6.106(D)(2)(b)[2]
Participate in a substance-abuse testing or monitoring program	MCR 6.106(D)(2)(c)[2]
Participate in a specified treatment program, including for substance abuse	MCR 6.106(D)(2)(d)[2]
Surrender driver's license or passport	MCR 6.106(D)(2)(f)[2]
Comply with a curfew	MCR 6.106(D)(2)(g)[2]
Report to a court agency; restrictions on travel, residence or associations; no firearms or dangerous weapons	MCR 6.106(D)(2)(a), (e), (k)[12]
Any other condition reasonably necessary, including money bail	MCR 6.106(D)(2)(o)[2]

The list also includes continuing to seek work, an educational program, custody of a responsible community member, staying out of specified places, and no-contact orders.^[12]

License surrender as security

For a misdemeanor, if the defendant's license is valid, the court may require surrender of the license instead of other security or as a condition of personal-recognizance release, and must return it at the end of trial or sentencing unless another disposition is authorized by law.^[13] That bond surrender is separate from the license the officer takes at the scene after a refusal or an unlawful test result.^[14]

Alcohol monitors and interlock devices

MCL 765.6b says it "does not limit the authority of judges or district court magistrates to impose protective or other release conditions under other applicable statutes or court rules, including ordering a defendant to wear an electronic monitoring device."^[15] In the subsection dealing with domestic-violence and assaultive-crime releases, the statute defines such a device to include one used "to monitor an individual's blood alcohol content."^[15]

The court rule's list does not name ignition interlock devices or any brand of alcohol monitor. It does list a testing or monitoring program and a catch-all for "any other condition."^[2] No statute naming an ignition interlock as a pretrial bond condition was found for this guide, so this page does not say one exists. Whether, and how, a court uses monitors or interlocks before trial varies by court. Interlocks after conviction are covered in the ignition interlock guide, and monitors in alcohol monitoring devices.

The OWI release rule in MCL 765.6b

MCL 765.6b(7) applies when a defendant "has submitted to a preliminary roadside analysis that detects the presence of alcoholic liquor, a controlled substance, or other intoxicating substance" and "a subsequent chemical test is pending."^[16] A judge or magistrate may release the defendant subject to conditions reasonably necessary for the protection of the public, and must tell the defendant on the record, orally or by a personally delivered writing, that:^[16]

• as a condition of release, the defendant shall not operate a motor vehicle under the influence of alcohol, a controlled substance or another intoxicating substance; and^[3]
• if the defendant violates that condition, he or she "will be subject to arrest without a warrant, shall have his or her bail forfeited or revoked, and shall not be released from custody prior to arraignment."^[3]

The order must be entered into LEIN, the law enforcement information network.^[3]

Money bail

When money bail is set, the court may allow the defendant to post, at the defendant's option, a surety bond for one quarter of the full amount, the full amount in cash, or a cash deposit of 10% of the full amount, or (with consent) designated real property; or it may instead require a full-amount surety bond or the full amount in cash (or, with consent, real property).^[17][18] If money was deposited on a bail or bond executed by the defendant, it is applied first to any fine, costs or assessments imposed, and the balance is returned.^[19] A family member posting money should ask the clerk how the bond is executed and what happens to the deposit, because the rule turns on who executed it.^[19] See when a family member is arrested for OWI.

Violating a release condition

If a defendant fails to comply with release conditions, the court may issue an arrest warrant, revoke the release order and declare the bail or surety bond forfeited.^[4] If the defendant does not surrender within 28 days after the revocation date, the court may enter judgment against the defendant and anyone who posted bail or bond, for up to the full amount of the bail plus court costs.^[4] For the specific condition under MCL 765.6b(7), the statute itself spells out warrantless arrest, forfeited or revoked bail, and no release before arraignment.^[3]

Probation violations after a conviction follow different rules, covered in the probation violations guide.

Changing or appealing bond

Before arraignment on the information (the felony charging document after bindover), any court where the case is pending may modify a release decision on a party's motion or on its own, if it finds a substantial reason.^[20] At and after arraignment on the information, the court may decide release anew.^[20] The party seeking a change has the burden of going forward.^[20] A party may also seek review by motion in the court with appellate jurisdiction, with no filing fee; that court may change the decision only for an abuse of discretion.^[21][18]

The same court rule governs bond in domestic-violence cases, discussed in the sister guide's pages on bond conditions and tethers and alcohol monitoring on bond.

Practical points

These are practical suggestions, not legal rules. Get a written copy of the release order, read every condition, and note testing schedules, reporting times and any travel limits. Keep records of each test or report. If a condition conflicts with work or treatment, the court can be asked to modify it, as described above.