OWI With a Child Under 16 in the Vehicle (Child Endangerment)

In Michigan, driving while intoxicated, visibly impaired, or with any amount of a Schedule 1 drug or cocaine, while a person under 16 is in the vehicle, is a separate and more serious crime under MCL 257.625(7).^[1] A first offense requires a fine of $200 to $1,000 and at least one of: jail of up to 1 year, or 30 to 90 days of community service.^[1] With one prior conviction within 7 years, it is a felony.^[3] This page sets out the elements, the penalty tiers, and the license and vehicle consequences.

What the prosecutor must prove

The child-endangerment subsection applies to a person who operates a vehicle in violation of the OWI provision, the visibly-impaired (OWVI) provision, the causing-death or causing-serious-impairment provisions, or the Schedule 1 drug provision, while another person under 16 occupies the vehicle.^[1] The model jury instruction tells the judge to instruct on the underlying violation and add a final element: that when the defendant operated the vehicle, a child under the age of 16 was present in it.^[2]

So every element of the underlying offense still has to be proved, including that the defendant operated the vehicle, on a highway or other place open to the public or generally accessible to motor vehicles, while intoxicated, impaired or with the drug in the body.^[5][6] The statute does not require that the child be hurt.^[2] It also does not depend on the child's relationship to the driver; the text refers to "another person who is less than 16 years of age."^[7]

A separate, lower tier covers a driver under 21 who violates the zero-tolerance rule with a passenger under 16.^[8] The zero-tolerance page explains that offense.

Penalties: first offense and the felony tier

Situation	Classification and penalty
No prior within 7 years and fewer than 2 priors overall	Misdemeanor: mandatory fine of $200 to $1,000, plus up to 1 year in jail and/or 30 to 90 days of community service[1]
Within 7 years of a prior, or after 2 or more priors at any time	Felony: fine of $500 to $5,000, plus 1 to 5 years in prison, or probation with 30 days to 1 year in jail (48 hours consecutive) and 60 to 180 days of community service[3]
Under-21 zero tolerance with a child under 16, no prior within 7 years and fewer than 2 priors overall	Misdemeanor: up to 60 days of community service, a fine up to $500 and/or up to 93 days in jail[8]
Under-21 zero tolerance with a child under 16, within 7 years of a prior or after 2 or more priors	Mandatory $200 to $1,000 fine plus 5 days to 1 year in jail and/or 30 to 90 days of community service[8]

A common misconception is that a child in the car is only a sentencing add-on. In fact the felony line is drawn earlier than for plain OWI: one prior within 7 years is enough here, while a plain OWI becomes a felony only after 2 or more priors.^[3][9] A jail or prison term imposed on the felony tier may not be suspended unless the defendant agrees to and successfully completes a specialty court program.^[10] In the sentencing guidelines, the subsequent-offense version is a class E crime against a person.^[11] See felony OWI and the sentencing guidelines.

As with OWI, OWVI and the other section 625 offenses listed in MCL 257.625b(5), the court must order a substance-abuse screening and assessment before sentencing.^[12] If the person has a prior conviction, at least 1 year of treatment or self-help programming is mandatory.^[12] The court may also order the costs of prosecution and reimbursement of emergency-response expenses for this offense.^[13][14]

Charged together with OWI causing death or injury

If a crash kills or seriously injures someone, a child-endangerment charge does not prevent a separate conviction and punishment for OWI causing death or serious impairment from the same incident.^[15] The Secretary of State may not assess points for both, however.^[15] That is different from the general rule that a defendant cannot be convicted of both OWI and OWI causing serious impairment for one drunk-driving incident.^[16] The crash offenses are covered in OWI causing serious impairment and OWI causing death.

License and points

For a child-endangerment conviction with no prior conviction within 7 years, the Secretary of State suspends the license for 180 days and may issue a restricted license only after the first 90 days.^[4] That waiting period is three times as long as the 30-day period that applies after a standard first OWI.^[17] The conviction carries 6 points.^[18] With a prior conviction within 7 years, the Secretary of State's revocation rule for 2 convictions in 7 years applies.^[19] See what an OWI does to your driver's license.

What can happen to the vehicle?

Child endangerment is one of the offenses for which forfeiture is available even without a prior conviction.^[20] The judgment may order forfeiture of a vehicle the defendant owns in whole or in part, or the return of a leased vehicle to the lessor.^[20] If the vehicle is not forfeited, the court may order immobilization on a first offense and must order it on the repeat tier.^[21] The immobilization periods are up to 180 days with no priors, 90 to 180 days with a prior within 7 years, and 1 to 3 years with 2 or more priors.^[22] Forfeiture is subject to the interest of a lienholder who did not know of or consent to the violation, and sale proceeds pay the equity of a co-owner who did not know of or consent to it.^[23] The details are in vehicle forfeiture and vehicle immobilization.

Records and set-aside

A child-endangerment conviction is a violation of section 625 that is not a "first violation operating while intoxicated offense," so the set-aside law bars it.^[24][25] The conviction also counts as a prior for later OWI charges, since every section 625 offense except letting someone else drive is on the prior-conviction list.^[26]

Beyond the criminal case

A child-endangerment conviction carries the same 6 points as other OWI convictions and stays on the driving record, where the Secretary of State says impaired-driving convictions remain permanently.^[18][27] A criminal case involving a child passenger can also come up in other proceedings, such as custody disputes; the OWI and child custody page explains how the Child Custody Act factors work. Family members dealing with the arrest itself may find when a family member is arrested for OWI useful.

Practical point: if a child was in the vehicle at the time of an arrest, write down who picked the child up, when, and any paperwork you were given. Those details can matter in later proceedings.