Felony OWI and Michigan's sentencing guidelines

When a Michigan OWI case is a felony, the circuit court sentences it using the legislative sentencing guidelines, which turn the facts of the offense and the defendant's record into a recommended range for the minimum prison term.^[8] Since People v Lockridge (2015) those guidelines are advisory, but the judge must still score them and take the range into account.^[2]

This page explains how the guidelines work for felony OWI. For the penalties themselves, start with third-offense felony OWI, OWI causing death and OWI causing serious impairment.

Minimum and maximum: how a Michigan prison sentence is built

Michigan felony prison sentences are indeterminate. For a first felony punishable by prison, the judge fixes a minimum term, and the maximum is the maximum set by law.^[3] The guidelines are about the minimum: they produce a "recommended minimum sentence range" in months.^[8] The court may not impose a minimum, including a departure, longer than two-thirds of the statutory maximum.^[4] For OWI 3rd, whose prison option runs from 1 to 5 years, that cap is arithmetic: two-thirds of 5 years is 40 months.^[9][4]

Which class each felony OWI falls in

MCL 777.12f assigns each Vehicle Code felony a crime group and a class.^[1] The class decides which sentencing grid is used.

Offense	Statutory maximum	Guidelines group and class
OWI 3rd or subsequent, MCL 257.625(9)(c)	1 to 5 years in prison, or probation with 30 days to 1 year in jail[9]	Public safety, class E[1]
OWVI 3rd, 625(11)(c)	Same options as felony OWI[10]	Public safety, class E[1]
OWI with a passenger under 16, subsequent offense, 625(7)(a)(ii)	Felony with a $500 to $5,000 fine and either 1 to 5 years or probation with jail[11]	Person, class E[1]
OWI causing serious impairment, 625(5)(a)	Up to 5 years and/or $1,000 to $5,000[12]	Person, class E[1]
Serious impairment at 0.17+ within 7 years of a prior, 625(5)(b)	Up to 10 years[12]	Class D[1]
OWI causing death, 625(4)(a)	Up to 15 years and/or $2,500 to $10,000[13]	Person, class C[1]
Death at 0.17+ within 7 years of a prior, 625(4)(b)	Up to 20 years[14]	Class B[1]

Scoring: offense variables, prior record variables and the grid

The statute sets out three steps.^[8]

1. Score the offense variables (OVs) that apply to the offense category and total them to get the offense variable level.^[8]
2. Score all prior record variables (PRVs) and total them to get the prior record variable level.^[8]
3. Read the recommended minimum range where those two levels meet on the grid for the offense class.^[8]

Offense variables that matter in OWI cases

For crimes against a person that involve operating a vehicle, OV 17 (negligence) and OV 18 (alcohol or drug impairment) are scored; for crimes against public safety, such as OWI 3rd, OV 18 is scored but OV 17 is not.^[15]

• OV 18 gives 20 points for 0.20 or more, 15 points for 0.15 to under 0.20, 10 points for being under the influence, having a schedule 1 drug present, or 0.08 to under 0.15, and 5 points for visible impairment or an under-21 driver with any alcohol.^[16]
• OV 17 gives 10 points for wanton or reckless disregard for life or property and 5 points for failing to use ordinary care; the 10 points may not be scored if OV 6 is scored.^[17]
• OV 3 (physical injury) can be scored 100 points when death results and homicide is not the sentencing offense, or 50 points when death results from an intoxicated-driving vehicle offense; life-threatening or permanently incapacitating injury is 25 points.^[18] The guidelines define "homicide" as any crime in which a death is an element, so when OWI causing death is itself the sentencing offense, the 100-point line does not apply by its terms.^[19] How a particular case is scored is for the court.

Prior record: how earlier OWIs are scored

Prior record variable 5 scores prior misdemeanor convictions, from 2 points for one up to 20 points for seven or more.^[5] It counts all prior misdemeanor convictions for operating a vehicle, vessel, ORV, snowmobile, aircraft or locomotive while under the influence or impaired, but "Do not count a prior conviction used to enhance the sentencing offense to a felony."^[5]

Two other rules affect which priors are used:

• For PRVs 1 to 5, a conviction is dropped if it comes before a gap of 10 or more years between a discharge date and the next offense.^[20]
• For this part of the statute, "conviction" includes a conviction that was set aside.^[20]

That differs from the OWI statute's own prior-conviction rules, which make a third offense a felony no matter how old the priors are.^[21] See how prior convictions are counted.

The grids

The class E grid, used for OWI 3rd and OWI causing serious impairment, runs from 0 to 3 months at the lowest cell to 24 to 38 months at the highest.^[22] The class C grid for OWI causing death runs from 0 to 11 months to 62 to 114 months.^[23]

Jail, probation and "intermediate sanctions"

A low score does not automatically mean prison. If the top of the recommended range is 18 months or less, the court must impose an intermediate sanction unless it states reasonable grounds on the record for up to 12 months in jail or a prison sentence.^[24] An "intermediate sanction" is probation or another lawful sanction other than jail or prison, including drug treatment or a drug treatment court.^[25] If the top of the range is over 18 months and the bottom is 12 months or less (a "straddle" range), the court, absent a departure, imposes either prison within the range or an intermediate sanction with up to 12 months in jail.^[24]

The OWI statute adds its own floor. For OWI 3rd it requires either prison of at least 1 year or probation with at least 30 days in jail, 48 hours of it consecutive.^[9] The guidelines statute addresses Vehicle Code minimums directly: where the Vehicle Code mandates a minimum prison term but allows the judge to impose less, a sentence above the guidelines range but below that minimum is not a departure.^[26] Any jail or prison term for OWI 3rd must not be suspended unless the defendant agrees to participate in a specialty court program and successfully completes it.^[27] See sobriety courts.

Felony probation may not exceed 3 years, extendable twice by 1 year each on specific findings.^[28]

Departures

A court may depart from the range if the departure is reasonable and the reasons are stated on the record.^[2] It may not depart because of gender, race, ethnicity, alienage, national origin, legal occupation, lack of employment, representation by appointed or retained counsel, self-representation, or religion, and may not rely on a factor already scored unless the record shows it was given inadequate or disproportionate weight.^[29] A defendant sentenced above the range must be told orally and in writing that the sentence can be appealed on that ground.^[29]

Habitual-offender terms on top of felony OWI

The general habitual-offender statutes apply to felony OWI, even when the felony itself rests on prior OWI convictions.^[6] They raise the statutory maximum:

• one prior felony: up to 1.5 times the longest term for a first conviction;^[30]
• two or more prior felonies: up to twice that term;^[31]
• three or more prior felonies, where the new felony carries 5 years or more: up to life.^[32]

Habitual status also raises the top of the recommended minimum range by 25, 50 or 100 percent for a second, third, or fourth or later felony.^[7] To seek it, the prosecutor must file written notice listing the priors within 21 days after arraignment on the information.^[33]

The presentence report and appeal

A written presentence report is required before sentencing anyone on a felony.^[34] For guideline offenses it includes the sentencing grid and the computed minimum range.^[35][36] It must be shared with both sides at least 2 business days before sentencing.^[37] This is where scoring disputes are raised: a within-range sentence is affirmed on appeal unless there was a scoring error or inaccurate information, and a scoring challenge must first be made at sentencing or in a proper motion.^[29]

A felony appeal of right to the Court of Appeals must be filed within 42 days; after a plea, an application for leave is filed within the later of 6 months or 42 days after certain counsel or transcript events.^[38] See appealing an OWI conviction and how OWI sentencing works.