Operating While Visibly Impaired (OWVI) in Michigan

Operating while visibly impaired, or OWVI, is the lesser impaired-driving offense that may be given to a jury on an OWI charge.^[2] Under MCL 257.625(3), a person may not operate a vehicle when, because of alcohol, a controlled substance, another intoxicating substance or a combination, "the person's ability to operate the vehicle is visibly impaired."^[1] It carries lower first-offense penalties than OWI, but it is still a crime, it costs driving privileges, and it counts as a prior conviction.^[4][5][7]

What the prosecution has to prove

OWVI has the same operating and place requirements as OWI: the statute applies to a person "whether licensed or not" who operates a vehicle on a highway or other place open to the public or generally accessible to motor vehicles.^[1][9] The difference is the impairment standard. The model jury instruction, M Crim JI 15.3, tells jurors that:^[3]

• the defendant drove with less ability than would an ordinary careful driver;^[3]
• the ability to drive was lessened to the point that it would have been noticed by another person; and^[3]
• it is the defendant's ability to drive, not the manner of driving, that must have been visibly lessened, though the manner of driving may be considered as evidence of ability.^[10]

The impairment can come from alcohol, a controlled substance, another intoxicating substance, or a combination.^[1] For marijuana, the Court of Appeals held in People v Dupre that the Medical Marihuana Act does not shield a registered patient from an OWVI prosecution.^[11]

Bad driving is not required

In People v Mikulen (2018), the Court of Appeals held that OWVI does not require proof of erratic driving such as weaving. Evidence that the officer saw glassy, bloodshot eyes and failed sobriety tests, also seen on video, was enough to send the charge to a jury.^[12] The court noted that proof of impaired driving would greatly strengthen a prosecutor's case but is not compelled by the statute.^[12]

How OWVI differs from OWI

Question	OWI, MCL 257.625(1)	OWVI, MCL 257.625(3)
Impairment standard	Under the influence: ability to operate normally substantially lessened; or 0.08 or 0.17 or more.[13][14]	Ability visibly impaired: less than an ordinary careful driver, noticeable to another person.[3]
Alcohol number	0.08 or more is itself an offense.[15]	No number in the statute.[1]
First-offense jail	Up to 93 days (180 for high BAC).[16][17]	Up to 93 days.[4]
First-offense fine	$100 to $500 ($200 to $700 for high BAC).[16][17]	Up to $300.[4]
License (first offense)	180 days, no restricted license for the first 30 days.[18]	90 days, restricted license possible for all of it; 180 days if drug-caused.[5]
Points	6[19]	4[6]

Older Michigan cases used "OWI" to mean the former offense of operating while impaired, a lower standard close to today's OWVI, and "OUIL" for under the influence. Read older opinions with that in mind.^[20]

OWVI as a verdict or plea on an OWI charge

OWVI can also arise in a case that was charged as OWI. The statute says that if a person is charged with violating subsection (1), "a finding of guilty under this subsection may be rendered," so a judge or jury may find OWVI instead.^[1] The Use Note to the OWI jury instruction says the lesser offense of OWVI may be given, and the high BAC instruction allows OWVI as a lesser offense too.^[2][21]

Section 625(16) bars a specific trade: the court may not accept a plea to the under-21 zero-tolerance offense in exchange for dismissing an OWI or OWVI charge, though the court may dismiss on the prosecutor's motion.^[22] That subsection does not mention OWVI as a plea offense.^[22] Practice on plea offers varies by county and court. See plea agreements in OWI cases.

Penalties

Offense	Penalty under MCL 257.625(11)
First OWVI	Misdemeanor: one or more of up to 360 hours of community service, up to 93 days in jail, and a fine of up to $300.[4]
Within 7 years of 1 prior conviction	Fine of $200 to $1,000 plus 5 days to 1 year in jail or 30 to 90 days of community service, as for second-offense OWI.[8]
After 2 or more priors, at any time	Felony, with the same 1-to-5-year prison or probation-with-jail options as felony OWI.[8]

Before sentencing, the court must order a substance-abuse screening and assessment, and with one or more prior convictions it must order a rehabilitative program of at least one year.^[23] If the OWVI rests on a controlled or intoxicating substance, a specific finding on drug involvement is made and reported to the Secretary of State.^[24]

Vehicle sanctions also apply. On a first OWVI with no priors, the court may order up to 180 days of immobilization; with a prior within 7 years, the court must order 90 to 180 days of immobilization.^[25] Forfeiture is available for a second OWVI within 7 years or a third OWVI, but not for a first.^[26] See vehicle immobilization and vehicle forfeiture.

License consequences

• Suspension, first offense. 90 days if there is no prior conviction within 7 years, with a restricted license possible for all or a specified portion of it.^[5]
• Drug-caused impairment. 180 days instead of 90, still with a restricted license possible.^[5]
• Points. 4 points, compared with 6 for OWI.^[6][19]
• Repeat offenses. Any combination of 2 section 625 convictions (other than 625(2)) within 7 years requires revocation and denial of the license.^[27]
• Commercial license. A 625(3) conviction in a commercial or personal vehicle suspends commercial driving privileges for one year.^[28]

A common belief is that OWVI means no license loss. It does mean a suspension, though a restricted license may cover the whole period.^[5] See license suspension after a first offense.

OWVI counts as a prior

For enhancing a later charge, a "prior conviction" includes any violation of section 625 except subsection (2).^[7] An OWVI therefore counts toward the 7-year second-offense window and toward the lifetime count that makes a third offense a felony.^[29][30] The guide on how prior convictions are counted explains the windows.

Records and set-aside

A 625(3) violation by someone with no prior section 625 convictions is a "first violation operating while intoxicated offense," eligible for set-aside once per lifetime, unless it caused injury or death or was committed by a CDL holder in a commercial vehicle, and only after a 5-year wait.^{[31][32][33][34][35]} A set-aside does not remove the conviction from the Secretary of State driving record, where impaired-driving convictions are kept permanently.^[36][37] See setting aside an OWI conviction.

On off-road vehicles, the visibly impaired offense is treated differently: under the ORV statute it stays punishable by at most one year even after 2 or more priors.^[38] See snowmobiles and ORVs.