OWI Causing Serious Impairment of a Body Function in Michigan

In Michigan, OWI causing serious impairment of a body function is a felony punishable by up to 5 years in prison and/or a fine of $1,000 to $5,000.^[2] It applies to a person, licensed or not, who drives while intoxicated, visibly impaired, or with a Schedule 1 drug or cocaine in the body, and "by the operation of that motor vehicle causes a serious impairment of a body function of another person."^[1]

The offense is in MCL 257.625(5).^[1] Prosecutors and courts often call it "OWI causing serious injury." This page covers the elements, the statutory definition of serious impairment, the penalties, and what follows for the license, the vehicle and the record. The companion page covers OWI causing death.

The elements the prosecution must prove

The model jury instruction for OWI causing death or serious impairment, M Crim JI 15.2a, includes these points among its elements; separate instructions (15.1a, 15.3a and 15.4a) cover the high-BAC, visibly-impaired and Schedule 1 drug versions.^[6][7]

1. The defendant operated a motor vehicle, meaning drove or had actual physical control of it.^[8]
2. The defendant was operating while intoxicated (under the influence or at an unlawful alcohol level), while visibly impaired, or with any amount of a Schedule 1 substance or cocaine in the body.^{[1][9][10][11]}
3. The defendant voluntarily decided to drive knowing he or she had consumed alcohol or drugs and might be intoxicated (in the visibly-impaired version, "might be visibly impaired"; in the Schedule 1 version, knowing he or she had consumed or used a controlled substance).^[6][7]
4. The defendant's operation of the vehicle caused the serious impairment: but for the driving, the injury would not have occurred, and the injury was a direct and natural result of operating the vehicle.^[6]

The place element is the same as for any OWI: a highway, a place open to the general public, or a place generally accessible to motor vehicles, including parking areas.^[12] The Michigan Supreme Court has read "generally accessible" to cover a private driveway.^[13]

Causation: the driving, not the "drunk driving"

In People v Schaefer (2005), a case under the death subsection, the Michigan Supreme Court held that the statute "does not require that the prosecution prove the defendant's intoxicated state affected his or her operation of the motor vehicle."^[14] What must cause the harm is the defendant's operation of the vehicle; intoxication is a separate element.^[14] Proximate cause still applies. In People v Feezel, the Court said a victim's intoxication is not a defense but, on those facts, was a factor the jury should have considered on proximate cause.^[15]

A common belief is that the prosecutor must show the alcohol made the defendant crash. Under Schaefer, that is not the test.^[14] A common belief in the other direction is that any crash by an intoxicated driver is automatically this felony. It is not: the jury must still find factual and proximate cause.^[15][6]

What "serious impairment of a body function" means

MCL 257.58c says serious impairment of a body function "includes, but is not limited to," one or more of these.^[3]

• Loss of a limb, or loss of use of a limb.^[3]
• Loss of a foot, hand, finger or thumb, or loss of use of one.^[3]
• Loss of an eye or ear, or loss of use of one.^[3]
• Loss or substantial impairment of a bodily function.^[3]
• Serious visible disfigurement.^[3]
• A comatose state lasting more than 3 days.^[3]
• Measurable brain or mental impairment.^[3]
• A skull fracture or other serious bone fracture.^[3]
• Subdural hemorrhage or subdural hematoma.^[3]
• Loss of an organ.^[3]

Because the list is open-ended, injuries not named can also qualify.^[3] Do not confuse this criminal definition with the no-fault insurance definition used in civil lawsuits. The Insurance Code defines "serious impairment of body function" separately, as an objectively manifested impairment of an important body function that affects the person's general ability to lead a normal life.^[16] The civil threshold is covered in suing an impaired driver.

Penalties

Situation	Maximum prison	Fine
Standard offense, MCL 257.625(5)(a)	5 years	$1,000 to $5,000, or both prison and fine[2]
Alcohol 0.17 or more and within 7 years of a prior conviction, MCL 257.625(5)(b)	10 years	$1,000 to $5,000, or both[17]

Both conditions must exist for the 10-year tier: the 0.17 level and a prior conviction within 7 years.^[2] Habitual-offender enhancement can raise the maximum for a defendant with prior felonies.^[18][19]

Under the sentencing guidelines, the standard offense is a class E crime against a person and the 0.17-with-a-prior tier is class D.^[20] Offense variables 17 (negligence) and 18 (alcohol or drug level) are scored for crimes against a person that involve operating a vehicle.^[21] The guide on felony OWI and the sentencing guidelines explains scoring.

Other parts of the sentence include a mandatory pre-sentence substance-abuse screening and assessment, possible costs of prosecution, and mandatory full restitution to the victim.^[22][23][24]

Charges that can and cannot be combined

• OWI plus OWI causing serious impairment for the same incident: both convictions cannot stand (People v Miller).^[25]
• Child endangerment plus OWI causing serious impairment: expressly allowed, but points are not assessed for both.^[26]
• A person who knowingly lets an intoxicated driver use the vehicle commits a felony punishable by up to 2 years if that driver causes serious impairment.^[27]
• Leaving the scene of a crash that results in serious impairment is a separate felony punishable by up to 5 years.^[28]

Related offenses such as reckless driving causing serious impairment and moving violation causing serious impairment are on the page about charges often filed with OWI.

License, points and the vehicle

A single conviction for OWI causing serious impairment requires the Secretary of State to revoke the license and deny a new one.^[4] After revocation, no license may issue for at least 1 year, or 5 years if this revocation follows an earlier one within 7 years, and the driver must then win a hearing.^[29][30] The conviction carries 6 points.^[31] See license revocation after OWI.

The judgment of sentence may order forfeiture of the vehicle, and if it does not, the court must order immobilization.^[5] With no prior convictions, mandatory immobilization is up to 180 days; with priors, the repeat-offense ranges apply.^[32] See vehicle forfeiture.

Later consequences

An injury-causing traffic offense can never be set aside.^[33] The conviction counts as a prior conviction for any later OWI.^[34] A felony conviction permanently bars a Michigan concealed pistol license.^[35]

For people who were injured

A felony OWI case is covered by the felony article of the Crime Victim's Rights Act.^[36] The court must order full restitution, which for injuries includes medical and psychological care, therapy, after-tax lost income and certain household costs.^[24] Victims may also make an oral impact statement at sentencing.^[37] See crime victims' rights in OWI cases and crime victim compensation.