How Prior OWI Convictions Are Counted in Michigan

Michigan counts prior OWI convictions using a definition in MCL 257.625(25)(b), which includes most impaired-driving and vehicle-homicide convictions from Michigan, other states, federal law and local ordinances.^[3] One prior within 7 years makes a new OWI a second offense, and two or more priors at any time make it a felony.^[1][2]

How priors are counted shapes almost every part of a repeat case, from the sentence range to the license and the vehicle. Several different counting rules exist side by side, and they do not all use the same lookback. This page sets them out. The sentences themselves are on the pages for a second offense and a third-offense felony.

What counts as a "prior conviction"

For criminal enhancement under section 625, a "prior conviction" means a conviction (or attempted violation) for any of the following.^[3]

• Any violation of section 625 except subsection (2), which is letting an intoxicated person drive your vehicle. That covers OWI, high BAC, OWVI, zero tolerance, child endangerment, OWI causing death or serious impairment, and the Schedule 1 drug offense.^[3][7]
• The commercial-vehicle 0.04 offense (section 625m) and the former section 625b.^[3]
• Negligent homicide, manslaughter or murder resulting from the operation of a vehicle, or an attempt.^[3]
• Moving violation causing death or serious impairment (section 601d), and reckless driving causing death or serious impairment (section 626(3) or (4)).^[8]

The conviction can be under Michigan law, a local ordinance substantially corresponding to Michigan law, a substantially corresponding federal law, or a substantially corresponding law of another state.^[3] The definition does not mention tribal-court convictions, and no Michigan authority deciding whether they count was located for this guide.^[3]

A plain reckless driving or open-container conviction is not on the list. Neither is a conviction for allowing an intoxicated person to drive.^[3][7]

Juvenile adjudications and under-21 convictions

The Vehicle Code defines "conviction" broadly. It includes a final conviction, payment of a fine, an accepted guilty or no-contest plea, and a juvenile adjudication or disposition for an act that would be a crime if done by an adult.^[9] No appellate case applying that general definition to OWI enhancement was located for this guide. For the under-21 zero-tolerance offense, only one conviction may be used as a prior conviction, except when the court is enhancing a later zero-tolerance charge.^[4] The Court of Appeals has noted that the Legislature chose to count zero-tolerance violations as priors, with that one-conviction limit.^[10]

One incident, one prior

If two or more qualifying convictions arose from the same transaction, only one of them counts when deciding whether the person has a prior conviction.^[5]

The lookback windows

Different consequences use different windows. This is where many people go wrong.

Consequence	Window
Second-offense OWI penalties	The new violation occurs within 7 years of a prior conviction.[1]
Felony OWI 3rd	After 2 or more prior convictions, regardless of the number of years since any of them.[2]
Felony child endangerment	Within 7 years of a prior conviction, or after 2 or more priors at any time.[11]
Felony commercial-vehicle 0.04 offense	Within 10 years of 2 or more prior convictions.[12]
License revocation	Two convictions within 7 years, or three within 10 years.[13][14]
Mandatory 1-to-3-year immobilization	After 2 or more prior convictions, for convictions beginning October 31, 2010.[15]
Death or injury at 0.17 or more (higher maximum)	Within 7 years of a prior conviction.[16][17]

The lifetime rule for OWI 3rd dates from 2006 PA 564 ("Heidi's Law"), effective January 3, 2007.^[18] The Criminal Proceedings Benchbook says it applies to offenses after that date even when the earlier convictions are more than ten years old, and the Court of Appeals rejected an ex post facto challenge in People v Perkins.^[18]

How the 7 years is measured

The second-offense provision asks whether the new violation "occurs within 7 years of a prior conviction."^[1] Read literally, the words compare the date of the new offense with the date of the earlier conviction, not the earlier arrest.^[1] No appellate decision on measuring the window was found for this guide. Note also a wording quirk: the Traffic Benchbook quotes the subsection as "within 7 years of 1 prior conviction," but the statute itself says "of a prior conviction."^[1]

License and criminal rules count differently

The Secretary of State uses its own definition of "prior conviction" for suspensions, which mirrors the criminal one: it excludes section 625(2), counts other states' and local convictions, allows only one under-21 conviction, and treats convictions from the same transaction as one.^[19] But revocation turns on how many convictions fall within 7 or 10 years, not on the criminal lifetime rule.^[13][14] The minimum 5-year revocation period turns on a second revocation within 7 years of an earlier revocation or denial.^[20] See license revocation for repeat OWI.

How the prosecutor proves prior convictions

1. Notice. To seek an enhanced sentence or vehicle forfeiture based on priors, the prosecuting attorney must list the prior convictions on the complaint and information, or an amended one.^[21]
2. Proof at sentencing. A prior conviction must be established at sentencing, not in front of the jury.^[22]
3. Kinds of proof. The statute allows a judgment of conviction, an abstract of conviction, a transcript of a prior trial, plea or sentencing, a court register of actions, the driving record, the presentence report, or the defendant's admission.^[22]

A court rule limits the use of old misdemeanor convictions taken without a lawyer. If a defendant was entitled to appointed counsel and was neither represented nor validly waived counsel, a later charge or sentence may not be enhanced because of that conviction.^[23]

Habitual-offender enhancement is a separate step that counts prior felonies. The Michigan Supreme Court has held it can apply to felony OWI even when the felony is itself based on prior OWIs, and the prosecutor must file notice within 21 days after the circuit court arraignment.^[24][25]

Set-aside convictions still count

Since February 19, 2022, one first-offense OWI per lifetime can be set aside.^[26][27][28] A set-aside does not erase the conviction for enhancement: it may be considered a prior conviction for charging a crime as a second or subsequent offense and for habitual-offender sentencing.^[6] Police, prosecutors and courts keep access to the nonpublic record.^[29] A set-aside also does not remove the conviction from the Secretary of State driving record.^[30] See what a set-aside does and does not do.

Common misunderstandings

• "Out-of-state DUIs don't count." Substantially corresponding convictions from another state count as priors.^[3]
• "Felony OWI needs priors within 10 years." That was the pre-2007 rule for ordinary OWI; today any two priors at any time are enough, though the commercial 0.04 felony still uses 10 years.^[18][12]
• "An expunged OWI is gone." It can still be used as a prior for a later charge.^[6]
• "A conviction for letting a drunk friend drive makes my next OWI a second offense." It does not: a section 625(2) conviction is excluded from the list of priors.^[7]

The earlier record is often the whole question in a repeat case. Order certified copies of every earlier judgment and your driving record, and note each offense date and conviction date side by side.

For out-of-state records and licenses, see out-of-state OWI and your Michigan license and Michigan drivers arrested in another state.