Jury trials in Michigan OWI cases

A person charged with OWI in Michigan has a constitutional right to a jury trial. The Michigan Constitution guarantees "a speedy and public trial by an impartial jury" in every criminal prosecution and allows juries of fewer than 12 for misdemeanors punishable by not more than 1 year.^[1] In district court, where first and second OWI cases are tried, the jury has six members and must be unanimous.^[2]

This page covers the jury right, jury selection, the burden of proof, what the jury decides and how the trial ends. The elements of each charge are set out in detail on the OWI jury instructions page. Nothing here predicts how a jury will decide.

The right to a jury

At a district-court arraignment, the defendant must be told the name of the offense, the maximum sentence, the right to a lawyer, and the right to a trial by jury when required by law.^[7] The right to a jury, like the right to counsel, is not waived unless the defendant has been told of it and waives it in a writing made part of the file or orally on the record.^[8]

A first or second OWI is a misdemeanor that the district court hears.^[9] Felony OWI cases, such as OWI third offense or OWI causing death or serious injury, are tried in circuit court after bindover.^[10][11]

	District court (misdemeanor OWI)	Circuit court (felony OWI)
Number of jurors	6, unanimous verdict[2]	12, unless the parties stipulate to fewer with the court's consent; unanimous[12]
Peremptory challenges	3 for each defendant, and the same number for the prosecutor[13]	Set by the felony rules (not covered here)
Extra jurors	The court may seat 7 or more and draw names down to 6 before deliberations[13]	Set by the felony rules (not covered here)
Jury waiver	Defendant's waiver plus prosecutor consent and court approval[4]	Same statute, plus advice in open court under MCR 6.402[4][14]

Choosing a bench trial instead

A defendant cannot insist on a trial before the judge alone. MCL 763.3 lets a defendant waive the jury "with the consent of the prosecutor and approval by the court."^[4] Except for minor offenses, the waiver must be written and signed, and made in open court after arraignment and a chance to consult a lawyer.^[4] In a felony bench trial the judge must find the facts specially and state conclusions of law on the record or in a written opinion.^[14] The sister guide's page on bench trial or jury trial discusses the same choice in general terms.

The burden of proof

Every jury is told that the defendant is presumed innocent and that the presumption continues throughout the trial.^[3] The prosecutor must prove each element beyond a reasonable doubt, and "the defendant is not required to prove [his / her] innocence or to do anything."^[3] The instruction defines proof beyond a reasonable doubt as "proof that leaves you firmly convinced of the defendant's guilt."^[3]

If a defendant pleads guilty instead, these trial rights are given up, and the court must say so before accepting the plea.^[15]

What the jury decides in an OWI case

For OWI, the Court of Appeals describes three elements: the defendant (1) operated a motor vehicle, (2) on a highway or other place open to the public or generally accessible to motor vehicles, (3) while under the influence or with an unlawful bodily alcohol content.^[16] The third element can be proved either way.^[16]

• Operating. Jurors are told "to operate means to drive or have actual physical control of the vehicle."^[17] See what counts as operating.
• The place. The statute reaches places generally accessible to vehicles; the Supreme Court held that includes a private driveway.^[18]
• Under the influence. Jurors are told this means the ability to drive in a normal manner was "substantially lessened"; drinking or smelling of alcohol alone does not prove it.^[19]
• Unlawful alcohol level. If jurors find the level was 0.08 or more, they may convict whether or not the alcohol affected driving ability.^[20]
• Visibly impaired (OWVI). The driving ability must have been lessened to the point another person would notice.^[21]

Jurors may consider the defendant's condition when driving, including reflexes, vision, walking, talking, manner of driving and judgment.^[22] For test results, they may infer the level at the test was the same as at the time of driving, may consider evidence of drinking after driving, and may give the test whatever weight they think it deserves.^[23] They are told to ask whether the test was accurate, the equipment maintained, the test given correctly, and the operator properly trained.^[24]

The evidence guide explains how test results, video and officer testimony come into a trial.

Lesser offenses and possible verdicts

When a person is charged with OWI, the judge or jury may instead find the person guilty of OWVI.^[25] The model instructions list the possible verdicts. On a high-BAC charge they are not guilty, guilty of high BAC, guilty of OWI, or guilty of OWVI.^[26] Jurors who all agree the defendant drove either with an unlawful alcohol level or under the influence do not have to agree on which one, but must all agree that one of them happened.^[26]

When an OWI or OWVI charge is based on a drug, the jury must return a special written verdict on whether the defendant was under the influence of or impaired by a controlled substance, and the court reports that finding to the Secretary of State.^[27]

A defendant cannot be convicted of both OWI and OWI causing serious impairment for the same incident; the Supreme Court held that double jeopardy bars it.^[28]

Evidence rules jurors hear about

• Refusals. A refusal of the chemical test may be shown only to explain that a test was offered, not as evidence of guilt, and jurors are instructed under M Crim JI 15.8 that it "is not evidence of guilt."^[5][6]
• Roadside breath test (PBT). PBT results are limited to deciding challenges to the arrest and to rebutting specific testimony about rising or falling alcohol levels.^[29]
• Test results on request. On a written request, the prosecution must provide chemical test results at least 2 days before trial; failing to fully comply bars the prosecution from using them.^[30]
• Field sobriety tests. A witness qualified in giving standardized field sobriety tests, including HGN, may testify on a proper foundation.^[31]

A motion to suppress evidence generally must be made before trial, though the court has discretion to hear one during trial.^[32] See motions to suppress.

Timing of the trial

Misdemeanor OWI cases have a 77-day target from arrest to final disposition, but missing it is not a ground for dismissal.^[33] The court rules separately give both sides a right to a speedy trial, and a violation of the defendant's constitutional speedy-trial right requires dismissal with prejudice.^[34] The deadlines page lists every time limit.

After the verdict

A not-guilty verdict ends the criminal case. Any separate implied-consent suspension for refusing a test is decided by the Secretary of State, not the jury.^[35]

After a guilty verdict, the court must order an alcohol screening and assessment before sentencing, and any prior convictions are established at sentencing by documents or admission.^[36][37] A defendant convicted after a district-court trial may move for a new trial within 21 days, or appeal of right to circuit court within 21 days.^[38][39] In felony trials the defendant may also move for a directed verdict of acquittal when the evidence is insufficient.^[40]

The next steps are in how OWI sentencing works and appealing an OWI conviction. People called as witnesses may find the Domestic Violence guide's page on what happens at a trial useful for the general order of events.