High BAC ("Super Drunk") OWI in Michigan: 0.17 or More

Michigan's high BAC law makes it a distinct form of operating while intoxicated to drive with an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.^[1] It is often called the "super drunk" law. That name is popular shorthand; the jury instructions call the offense OWIHBAC, operating with a high bodily alcohol content.^[9][10] Compared with ordinary OWI, it carries more jail exposure, a higher fine, a mandatory treatment program and a longer, interlock-only license restriction.^[2][4][5][6]

What the prosecution has to prove

The model jury instruction, M Crim JI 15.1, lists three elements, each to be proved beyond a reasonable doubt:^[10]

1. The defendant operated a motor vehicle, meaning drove it or had actual physical control of it.^[10]
2. On a highway or other place open to the public or generally accessible to motor vehicles, including a designated parking area.^[10]
3. With a bodily alcohol level of 0.17 grams or more.^[10]

There is no separate element about how well the person drove. As with 0.08, the jury may convict on the number whether or not the alcohol affected the person's ability to operate the vehicle.^[11] The Use Note allows lesser offenses of other forms of OWI and OWVI to be given, using only the alcohol provisions.^[10] So if a jury is not convinced the level was 0.17 or more, it may be asked to consider ordinary OWI or OWVI instead.

The high BAC tier applies only to alcohol content.^[1] The drug offenses are covered in driving under the influence of drugs.

Criminal penalties for a first high BAC offense

A first conviction is a misdemeanor. Under MCL 257.625(9)(a), the court may impose one or more of the following:^[3][2]

Sanction	High BAC first offense	Ordinary OWI first offense
Jail	Up to 180 days[2]	Up to 93 days[3]
Fine	$200 to $700[2]	$100 to $500[3]
Community service	Up to 360 hours[2]	Up to 360 hours[3]
Treatment program	Mandatory, at least 1 year[4]	Screening and assessment required; a program of at least 1 year is mandatory only with a prior[4]
Points	6[12]	6[12]

The 180 days and $700 are maximums. The statute lists jail, fine and community service as sanctions the court may impose in any combination, and the court may also order the costs of prosecution.^[2][13] Other possible orders, such as vehicle immobilization of up to 180 days on a first offense, are covered in the first-offense penalties guide.^[14]

The mandatory treatment program

Before sentencing anyone for OWI, the court must order a substance-abuse screening and assessment, which the defendant pays for if no other funding is available.^[4] A high BAC conviction goes further. MCL 257.625b(5) says that if the person was convicted under 625(1)(c), the court "shall order the person to participate in and successfully complete 1 or more appropriate rehabilitative programs," such as an alcohol treatment program or a self-help program, for at least one year.^[4] The treatment plan must come from an assessment by an appropriately licensed alcohol assessor and be approved by the court.^[4]

On this point the law treats a first high BAC conviction the same as a case with a prior conviction: the same one-year program requirement applies to anyone with one or more prior convictions.^[4] See the pre-sentence alcohol assessment.

License suspension and the interlock

The Secretary of State, not the court, imposes the license sanction once it receives the conviction record.^[15] For a 625(1)(c) conviction where the person has no prior conviction within 7 years, or not more than 2 convictions within 10 years, the license is suspended for one year, and no restricted license may be issued during the first 45 days.^[5]

• Interlock-only driving. A restricted license after a high BAC conviction allows driving only a vehicle with an approved, certified ignition interlock device, and the Secretary of State will not issue it until proof of installation is provided.^[6]
• Getting the device removed. The interlock may come off after the provider verifies that the person drove with no readings at or above 0.025, with exceptions for certain start-up failures and quickly corrected retests.^[16] The Secretary of State's process uses an "HBAC Form 1" with an original provider report showing a service date after the restriction end date; faxed copies are not accepted.^[17]
• Violations. Violating the restricted license, or driving or trying to drive at 0.025 or more, brings an additional period of suspension and restriction of the same length.^[18]
• Interlock crimes. Driving without the required device, having someone else blow into it, or tampering with it is a misdemeanor punishable by up to 6 months and a fine of up to $5,000.^[19]

Details are in high BAC license rules and ignition interlock devices.

High BAC with prior convictions or a crash

High BAC is part of subsection (1), so a high BAC conviction counts as a prior conviction for later OWI enhancement, and repeat-offense penalties apply to a high BAC charge just as they do to any OWI.^[1][20] A violation within 7 years of a prior conviction brings a mandatory fine of $200 to $1,000 and either 5 days to 1 year in jail or 30 to 90 days of community service; after 2 or more priors at any time, it is a felony.^[21][22] Two OWI-family convictions within 7 years also lead to license revocation under MCL 257.303.^[23]

The 0.17 level also raises the maximum in crash cases, but only with a prior. OWI causing death carries up to 20 years instead of 15 when the driver had 0.17 or more and the violation was within 7 years of a prior conviction; both conditions are required.^[24] OWI causing serious impairment rises from 5 to 10 years on the same two conditions.^[25]

The history of the 0.17 tier and the "sunset" myth

The 0.17 tier appears in 2008 PA 462, which took effect October 31, 2010.^[8] The license provision for it likewise begins "Beginning October 31, 2010."^[5]

A common belief is that the super drunk law "sunsets" or expires. It does not. The current text of 625(1)(c) has no expiration date, and earlier versions did not give the 0.17 provision one either.^[7][26] The sunset people remember was a scheduled rollback of the 0.08 limit to 0.10, last set for October 1, 2021.^[26] Since 2021 PA 85, effective September 24, 2021, that rollback depends on a treasurer certification about lost federal highway funding plus a five-year wait, not on a date.^[27] See Michigan's blood alcohol limits and the changes timeline.

Later consequences

• Set-aside. A violation of 625(1) by someone with no prior section 625 convictions is a "first violation operating while intoxicated offense," for which one set-aside per lifetime is available, unless the offense caused injury or death or was committed by a CDL holder in a commercial vehicle, and only 5 or more years after sentencing or the end of probation or jail.^{[28][29][30][31][32][33]} See setting aside an OWI.
• Driving record. The Secretary of State's driver manual says a conviction for impaired driving stays on the driving record permanently.^[34]
• Commercial license. Any 625(1) conviction, in a commercial or personal vehicle, suspends commercial driving privileges for one year.^[35]