Twenty Myths About Michigan Drunk-Driving (OWI) Law

Much of what people repeat about Michigan drunk-driving law is outdated, borrowed from another state, or half right. This page checks twenty common beliefs against the statutes, court rules and appellate decisions. Each entry gives the belief, what the law says, and where to read more. The list is meant to be fair to everyone involved: people who have been arrested or charged, their families, and people hurt in impaired-driving crashes.

The stop and the arrest

1. "Michigan police can set up DUI checkpoints."

They cannot. The U.S. Supreme Court allowed sobriety checkpoints under the Fourth Amendment in 1990, but the Michigan Supreme Court held in 1993 that they violate article 1, section 11 of the Michigan Constitution.^[1] See sobriety checkpoints.

2. "If the officer didn't read me my rights, the case gets thrown out."

Miranda warnings are required before custodial interrogation, and a driver held for a routine traffic stop is ordinarily not in custody, so ordinary roadside questioning does not require them.^[10][11] The warnings become required once the driver's freedom is curtailed to a degree associated with formal arrest, even for a traffic misdemeanor.^[11][10] When Miranda is violated, the remedy is that statements from the interrogation cannot be used; it does not cover physical evidence.^[12][13] See Miranda and OWI stops.

3. "Under 0.08, you can't be arrested or charged."

OWI can be committed by being under the influence, by having 0.08 or more, or by having 0.17 or more.^[3] Operating while visibly impaired is a separate offense with no number in it, and the State Police say drivers can be arrested at any alcohol level if an officer believes they are impaired.^[14][2] See what "under the influence" means.

4. "Private property, like your own driveway, is safe."

The statute covers highways and places open to the public or generally accessible to motor vehicles, including parking areas.^[15] The Michigan Supreme Court held in People v Rea (2017) that a private driveway was "generally accessible."^[16] See where the law applies.

5. "Sitting in a parked car can never be OWI."

Absolute statements either way are wrong. The Michigan Supreme Court has held that once a person puts a vehicle in motion, or in a position posing a significant risk of collision, the person keeps operating it until it is returned to a position posing no such risk.^[17] Separately, an officer may arrest a person in the driver's seat of a parked car that intrudes into the roadway on reasonable cause to believe OWI.^[18] See sitting in a parked car.

Testing

6. "You can refuse every test and nothing happens."

Refusing the roadside PBT is a civil infraction, except that a person who was operating a commercial motor vehicle commits a misdemeanor by refusing.^[19][20] Refusing the evidential test after arrest leads to a 1-year suspension (2 years for a second refusal within 7 years) if no hearing is requested, plus 6 points.^[4][21] Police may also seek a court order for a test after a refusal.^[6] See refusing a breath or blood test.

7. "A refusal can't be mentioned at trial."

It can, but only to show a test was offered, not as evidence of guilt, and the jury must be told so.^[22] The current instruction is M Crim JI 15.8.^[23] See refusal evidence at trial.

8. "The roadside breath number will be used to convict you."

PBT results are admissible in an OWI prosecution only for limited purposes: deciding a challenge to the validity of the arrest, or rebutting specific testimony about the alcohol level at the time of driving.^[24] See the preliminary breath test.

9. "Marijuana is legal, so driving with THC in your system is legal."

MCL 257.625(8) bars driving with any amount of a Schedule 1 substance in the body, and marijuana remains on Michigan's Schedule 1 list.^[25][26] The recreational marijuana law does not authorize driving under the influence.^[27] In People v Koon, the Michigan Supreme Court held that a registered medical marijuana patient is protected from the "any amount" rule when not otherwise under the influence; whether that protection extends to adult recreational users is unsettled.^[28][29] The inactive metabolite 11-carboxy-THC is not a Schedule 1 substance, and Michigan has no numeric THC blood limit, so a "5 nanogram" rule is not Michigan law.^[30][31] See marijuana and driving.

10. "The super-drunk law expires" or "0.08 is going back to 0.10."

The 0.17 high-BAC offense has no expiration date in current law.^[32] Since September 24, 2021, the 0.08 limit has no calendar end date; 0.10 would apply only 5 years after a State Treasurer certification about lost federal highway funding.^[33] See blood alcohol limits.

Charges, court and sentencing

11. "A third OWI is a felony only if the priors are within 10 years."

That was the rule before Heidi's Law. For offenses after January 3, 2007, a third OWI is a felony no matter how long ago the priors were.^[34][35] The commercial-vehicle 0.04 felony is different and still uses a 10-year window.^[36] See third-offense OWI.

12. "A second offense means at least 5 days in jail."

For a second offense within 7 years, the court must impose a $200 to $1,000 fine and one or more of: 5 days to 1 year in jail, or 30 to 90 days of community service.^[37] See second-offense penalties.

13. "Sobriety court will get the OWI dismissed."

A treatment court may not dismiss a traffic offense on completion; guilt is entered at admission.^[38] For a second or third offense, the statute allows the jail term to be suspended only if the defendant agrees to participate in and successfully completes a specialty court program.^[39] See sobriety courts.

14. "If the court misses its deadlines, the case is dismissed."

Misdemeanor OWI cases have target deadlines, including arraignment within 14 days of arrest, but the statute says the court shall not dismiss a case or impose any other sanction for missing them.^[40][41] The judge also cannot take an OWI "under advisement" or mask it to keep it off the driving record.^[42] See deadlines in an OWI case.

Your driver's license

15. "The 14 days to request a refusal hearing runs from the arrest."

It runs from the date of the officer's written notice.^[43] A mailed request must be postmarked within 14 days after that date.^[44] See the implied consent hearing.

16. "After a revocation, the license comes back automatically."

After a repeat-offense revocation, the driver must wait out the minimum revocation period and then rebut a presumption of being a habitual offender by clear and convincing evidence, and the hearing officer must make four findings before ordering a license.^[45][46][47] See license restoration hearings.

Records and insurance

17. "You can never expunge a DUI in Michigan," or "an expunged OWI disappears."

Since February 19, 2022, one first-offense OWI per lifetime can be set aside on application.^[7][48] But the set-aside order may not remove the conviction from the Secretary of State driving record, and a set-aside OWI can still be counted as a prior for a later OWI charge.^[8][49] See what a set-aside does.

18. "Drunk drivers lose their no-fault PIP benefits."

The no-fault statute lists the situations in which a person is not entitled to personal protection insurance benefits, and driving while intoxicated is not among them.^[9] Insurers may still surcharge an OWI conviction under merit rating plans.^[50] See no-fault benefits.

Crashes and people who were hurt

19. "For OWI causing death, the prosecutor must prove the alcohol caused the crash."

The Michigan Supreme Court held in People v Schaefer that the statute requires proof that the defendant's operation of the vehicle caused the death, not that the intoxicated manner of driving did.^[51] Proximate cause still has to be proved; in People v Feezel, the Court said a victim's intoxication is not a defense but, on those facts, should have been a factor for the jury on proximate cause.^[52] See OWI causing death.

20. "You can sue the bar any time, and party hosts are always liable."

A dram-shop claim against a bar or store must be filed within 2 years, written notice must go to all defendants within 120 days after hiring a lawyer for the claim, and the intoxicated person must be named and kept in the suit.^[53][54] A Michigan Court of Appeals opinion states that social host liability cannot be based on serving alcohol to an adult, while furnishing alcohol to a minor creates a rebuttable presumption of negligence.^[55] See the dram shop law and social host liability.

A note on statistics

Many myths begin with a misread number. Michigan's crash statistics call a crash "alcohol-involved" if the officer reported any driver, pedestrian or cyclist as having been drinking; federal NHTSA figures instead count fatal crashes with a driver at .08 or higher as "alcohol-impaired."^[56][57] The figures and their definitions are in Michigan drunk-driving statistics, and the dates of recent changes in the law-changes timeline.