Who Is Eligible to Set Aside an OWI in Michigan

A Michigan OWI conviction can be set aside only if it was a "first violation operating while intoxicated offense," it did not cause injury or death, it was not a commercial-vehicle violation, and the person has never had another OWI set aside.^{[8][1][5][3][4]} On top of that, the person must wait at least 5 years and stay free of new convictions and pending charges.^[6][7]

This page goes through each requirement exactly as the statute writes it. The filing steps are on setting aside an OWI conviction.

Requirement 1: it must be a "first violation"

The set-aside statute, MCL 780.621(4)(d), defines a first-violation OWI as a violation of section 625(1), (2), (3), (6) or (8) of the Vehicle Code, committed by someone who at the time "has no prior convictions for violating section 625."^[1] The same definition covers a substantially corresponding local ordinance, tribal law, other-state law or federal law.^[9]

The five listed subsections are:

• 625(1): operating while intoxicated, meaning under the influence, at 0.08 or more, or at 0.17 or more (high BAC).^[10]
• 625(2): an owner or person in control knowingly letting an intoxicated or visibly impaired person drive.^[11]
• 625(3): operating while visibly impaired (OWVI).^[12]
• 625(6): the under-21 "any bodily alcohol content" offense.^[13]
• 625(8): driving with any amount of a Schedule 1 drug or cocaine in the body.^[14]

Two points about the "no prior convictions" test. First, it looks at the moment of the violation, not the date of the application.^[1] Second, by its words it asks about prior convictions under section 625 as a whole, so an earlier OWVI or under-21 conviction under that section would keep a later OWI from being a first violation.^[1] The definition refers to convictions "for violating section 625 of the Michigan vehicle code"; how courts apply that wording to an earlier out-of-state conviction was not researched for this guide. For how priors work in the criminal case itself, see how prior convictions are counted.

What is not a first violation

Everything else under section 625 or 625m is defined as "operating while intoxicated," and that category cannot be set aside.^[2] That covers:

• Any second or third offense. A person with a prior section 625 conviction does not meet the first-violation definition.^[1][2] See second-offense penalties and third-offense felony OWI.
• OWI causing death or serious impairment (625(4) and (5)), which are not on the list, and which are also barred as traffic offenses causing injury or death.^[1][2][3]
• OWI with a passenger under 16 (625(7)), which is not on the list.^[1][2][15] See OWI with a child in the vehicle.
• The commercial-vehicle 0.04 offense under 625m, which the definition names expressly.^[2][16]

Requirement 2: no injury or death

MCL 780.621c(1)(d)(iii) bars setting aside "any traffic offense that causes injury or death."^[3] This bar is broader than OWI: by its words it reaches any traffic offense that causes injury or death, whatever the charge.^[3] The bar does not mention property damage.^[3]

A crash that only damaged someone else's property still matters to the process. An OWI involving an accident that damaged another person's property, or injured or killed someone, is a "serious misdemeanor" under the Crime Victim's Rights Act, and for a serious misdemeanor the prosecutor must notify the victim of the application.^[17] The victim may appear and make a written or oral statement.^[18]

Requirement 3: not a commercial-vehicle violation

The statute bars any traffic offense committed by a person with a commercial-vehicle indorsement "while the individual was operating the commercial motor vehicle or was in another manner a commercial motor vehicle violation."^[4] The phrase "in another manner a commercial motor vehicle violation" is not further defined in the text.^[4]

For a CDL holder, eligibility under state law is only part of the picture. Federal rules forbid a state from masking a CDL holder's traffic conviction, in any type of vehicle, so that it would not appear on the national CDL driver record.^[19] And an OWI in any vehicle brings a federal disqualification from commercial driving: 1 year on a first offense (3 years if the driver was hauling hazardous materials in a commercial vehicle), and life on a second.^[20] Those consequences are covered on CDL disqualification after an OWI.

Requirement 4: once in a lifetime

The OWI exception applies only if the person "has not previously applied to have and had" a first-violation OWI set aside.^[5] So a person may have at most one OWI set aside. The words require both an application and a granted set-aside, so a denied petition does not by its terms use up the exception.^[5] After a denial, though, the person must wait 3 years to refile on the same conviction unless the order sets an earlier date.^[21]

Requirement 5: the waiting period and a clean record

An application to set aside one first-violation OWI may be filed only 5 or more years after whichever happened last: imposition of sentence, completion of probation, discharge from parole, or completion of any term of imprisonment.^[6] The 3-year wait for ordinary misdemeanors does not apply to a first-violation OWI.^[22]

The court also may not enter the order unless no criminal charges are pending against the applicant and the applicant has not been convicted of any criminal offense during the waiting period.^[7] The sworn application must state whether any charge is pending in any court in the United States or another country.^[23]

General limits that also apply

• Overall caps. The general rule lets a person with not more than 3 felony convictions apply to set aside Michigan convictions, and limits assaultive-crime set-asides to 2 in a lifetime.^[24]
• Same-incident convictions. Several misdemeanor convictions are treated as one if they all occurred within 24 hours and arose from the same transaction, unless one of them is assaultive, involves a dangerous weapon, or carries 10 or more years.^[25] How this rule interacts with the separate OWI rules was not researched for this guide.
• Never automatic. A first-violation OWI is not eligible for automatic set-aside under the Clean Slate provision.^[26]

Eligibility at a glance

Conviction	Can it be set aside?
First OWI under 625(1), including high BAC, no injury, no prior 625 conviction	Yes, on application after 5 years, once in a lifetime.[1][5][6]
First OWVI under 625(3)	Yes, on the same conditions.[1]
First under-21 zero-tolerance under 625(6)	Yes, on the same conditions.[1]
First 625(8) Schedule 1 or cocaine offense	Yes, on the same conditions.[1]
Allowing an intoxicated person to drive, 625(2)	Yes, if it is a first violation and caused no injury or death.[1][3]
Any second or later section 625 offense	No.[2]
OWI causing death or serious impairment	No.[2][3]
OWI with a passenger under 16, 625(7)	No.[1][2]
Commercial-vehicle 0.04 offense, 625m	No.[2]
Any traffic offense by a CDL holder while driving the commercial vehicle	No.[4]

Eligibility only opens the door; the judge still decides whether the applicant's conduct since the conviction warrants a set-aside and whether it is consistent with the public welfare.^[27] What an order changes afterward is on what a set-aside does and does not do. Readers whose case involved serious injury or an OWVI plea can find the underlying offense explained on those pages, and the under-21 rules are on the zero-tolerance law.