OWI in a Commercial Motor Vehicle: Michigan's 0.04 Law

Michigan sets a lower alcohol limit for anyone operating a commercial motor vehicle: under MCL 257.625m, it is a crime to drive one with an alcohol content of 0.04 or more but less than 0.08, whether or not the person holds a license.^[1] At 0.08 or more, the commercial driver is in the same position as any other driver under the ordinary OWI law.^[7] The 0.04 offense has its own penalties, its own prior-conviction rules, and stricter roadside-testing rules.^[2][8][5] This page covers the criminal offense; the effect on the CDL itself is explained in CDL disqualification after an OWI.

What counts as a commercial motor vehicle?

The Vehicle Code defines a commercial motor vehicle by its design and use.^[9] It includes a vehicle used in commerce that meets any of these tests:^[9]

• Designed to carry 16 or more passengers, including the driver.^[9]
• A gross vehicle weight rating or gross vehicle weight of 26,001 pounds or more, with a similar test for combinations.^[9]
• Carrying hazardous material that requires a placard.^[9]

A vehicle used only to transport personal possessions or family members for nonbusiness purposes is not a commercial motor vehicle.^[9] So the 0.04 offense is about the vehicle being driven, not about whether the driver holds a CDL.^[1]

Penalties for the 0.04 offense

Situation	Penalty
First offense	Misdemeanor: up to 93 days and/or a fine up to $300, plus costs of prosecution[2]
Within 7 years of 1 prior conviction	Up to 1 year and/or a fine up to $1,000; jail may not be suspended[2]
Within 10 years of 2 or more prior convictions	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]

Two points here are easy to get wrong. First, the felony uses a 10-year window.^[3] Ordinary OWI has had a lifetime lookback for third offenses since 3 January 2007, while the commercial 0.04 felony counts only priors within 10 years.^[10][3] Second, the repeat-offense jail term for 625m "must not be suspended," and unlike the ordinary OWI statute, 625m has no specialty-court exception.^[2][11] In the sentencing guidelines, the 625m felony is a class E public-safety offense.^[12]

For the 0.04 offense, a "prior conviction" includes earlier 625m convictions, section 625 convictions other than letting someone else drive, and crash-related homicide and reckless or moving-violation offenses, under Michigan law, local ordinances or other states' laws.^[8] Only one under-21 zero-tolerance conviction may be used, and convictions from one transaction count once.^[8] A 625m conviction is in turn a prior conviction for later ordinary OWI charges.^[13]

Before sentencing, the court must still order the substance-abuse screening and assessment.^[14] The court may also order reimbursement of the expenses of the incident.^[15]

Arrest without a warrant

An officer may arrest a person for the 0.04 offense without a warrant in two situations: when the officer has reasonable cause to believe the person was driving a commercial vehicle involved in an accident in violation of the 0.04 rule, and when the person is found in the driver's seat of a commercial vehicle parked or stopped on a highway with part of it intruding into the roadway and the officer has reasonable cause to believe the person was operating it in violation of that rule.^[16]

Roadside and chemical testing for commercial drivers

The roadside preliminary breath test (PBT) has a lower trigger for commercial drivers. An officer may require it on reasonable cause to believe the person was operating a commercial vehicle while having any measurable amount of alcohol or any detectable presence of alcohol or another intoxicant.^[17]

Refusal also has a different consequence. For other drivers, refusing a PBT is a civil infraction.^[18] For a person operating a commercial motor vehicle, it is a misdemeanor punishable by up to 93 days and/or $100, the driver must be told that, and the driver must be ordered out of service for 24 hours.^[5][19]

Michigan law also requires an officer who has reasonable cause to believe, from a roadside or chemical test, that a commercial driver had an alcohol content of 0.015 or more to order the driver out of service for 24 hours.^[20] Having 0.015 is not in itself a crime under that section, but driving a commercial vehicle during the out-of-service period is a misdemeanor of up to 90 days and/or $100.^[20] Federal motor-carrier rules separately bar a commercial driver from using alcohol within 4 hours before going on duty and from having any detected alcohol while on duty, with an immediate 24-hour out-of-service order for a violation.^[21]

After an arrest, the implied consent law applies to the 625m offense like the other OWI offenses.^[22] A first refusal of the chemical test while operating a commercial vehicle brings a 1-year loss of all vehicle group designations, and a second refusal in a separate incident within 10 years brings revocation for at least 10 years.^[23] See refusing a breath or blood test.

License and CDL consequences in brief

• A first 625m conviction suspends the regular license for 90 days, with a restricted license possible for all or part of it.^[24]
• No points are entered for a 625m conviction.^[25]
• CDL privileges are suspended for 1 year for a 625m conviction, a conviction under section 625(1), (3), (4), (5), (6), (7) or (8), or a chemical-test refusal, in a commercial or a noncommercial vehicle; it is 3 years if the commercial vehicle was carrying placarded hazardous material.^[6][26]
• Two such violations from separate incidents bring a lifetime CDL revocation, with possible reissue after at least 10 years.^[27]
• No restricted license after an OWI-type suspension may permit commercial driving.^[28][29]

Federal rules use the same 1-year, 3-year and lifetime structure.^[30] The full rules are in CDL disqualification after an OWI, and the employment side, including the FMCSA Clearinghouse, is in OWI and commercial driving careers.

Records: no masking, no set-aside

Federal law forbids a state to mask, defer judgment on, or divert a CDL holder's conviction for a traffic-control violation in any type of vehicle so that it does not appear on the federal driver record.^[31] Michigan courts may not take a reportable driving offense under advisement in any case.^[32] The set-aside law bars 625m violations and traffic offenses committed by a CDL holder while operating the commercial vehicle.^[33][34] For a checklist after an arrest, see CDL holders arrested for OWI.