Plea agreements in Michigan OWI cases

A plea agreement is a deal between the prosecuting attorney and the defendant that ends a case without a trial, by a plea of guilty or no contest to the original charge or to a different one. Michigan law lets OWI cases end this way, but it puts limits on what a court may accept and requires the judge to explain the consequences on the record before taking any plea.^[1][10]

This page explains the procedure, the reductions the statutes forbid, and what follows any plea. It does not say what offers are made in any court or whether a plea is a good idea in any case.

The kinds of pleas

• Not guilty. A district court may allow a not-guilty plea in writing, signed by the defendant and defense lawyer, without a formal arraignment.^[11]
• Guilty. In district court the judge must establish, by questioning the defendant, support for a finding of guilt.^[12]
• No contest (nolo contendere). The judge may not question the defendant about participation in the offense and must decide accuracy from other information.^[12] In felony cases a no-contest plea needs the court's consent.^[13]

The guilty vs no-contest guide in the sister Domestic Violence guide explains the difference in more depth.

Where pleas happen

In a misdemeanor OWI case, the court may accept a plea at the end of the pretrial conference, which the statute requires within 35 days of arrest.^[14] In a felony case, the probable cause conference includes plea discussions, and a district judge may accept a felony plea, with sentencing by an assigned circuit judge.^[15][16] See the pretrial conference and preliminary examination guides.

In district court, an indigent defendant has a right to an appointed lawyer whenever the offense requires a minimum jail term or the court might impose jail, even suspended, and the Michigan Indigent Defense Commission's standards provide appointed counsel during plea negotiations.^[17][18]

What the judge must say before accepting an OWI plea

Two sets of rules apply to a misdemeanor OWI plea: the OWI statute and the district-court plea rule.^[1][10]

1. Under MCL 257.625b(4), the judge must advise the defendant of the maximum possible jail term and fine and that the maximum possible license sanctions "will be based upon the master driving record maintained by the secretary of state."^[1]
2. Under MCR 6.610(F), the court must find the plea understanding, voluntary and accurate, and must advise of any mandatory minimum jail sentence and the maximum penalty.^[10]
3. The judge must explain that there will be no trial and that the defendant gives up the rights to call witnesses, to cross-examine, to testify or remain silent without an inference, and to the presumption of innocence and proof beyond a reasonable doubt.^[10]
4. The plea agreement goes on the record, the court confirms the parties agree on all its terms, and the court asks about promises beyond the agreement, threats, and whether the plea is the defendant's own choice.^[19]

A written misdemeanor plea without a personal appearance is allowed if the court finds it proper given the circumstances and possible sentences and the defendant acknowledges guilt and waives trial rights in writing.^[20]

For a felony plea, the court questions the defendant under oath and must explain the maximum prison sentence, any mandatory minimum, the trial rights given up, and that any appeal will be by application for leave, not by right.^[21]

Reductions the law forbids

Rule	What it says
No zero-tolerance swap (MCL 257.625(16))	When a person is charged with OWI, OWVI, OWI causing death or injury, child endangerment, the Schedule 1 drug offense or the commercial offense, the court may not accept a plea to the under-21 offense in exchange for dismissing the original charge; it may still dismiss on the prosecutor's motion.[2]
No open-container plea for a zero-tolerance charge (MCL 257.624a(3))	A court may not accept a plea to the open-intoxicants offense from someone charged only with the under-21 offense.[22]
No "under advisement" (MCL 257.732(21))	A court may not take a reportable driving offense under advisement, and the conviction must not be masked, delayed, diverted, suspended or suppressed.[3]
No driving-record expunction (MCL 257.732(22))	Except as the Vehicle Code provides, a court may not order expunction of a violation reportable to the Secretary of State.[4]
No youthful trainee status	HYTA does not apply to a Vehicle Code "traffic offense" that is a felony or misdemeanor, which includes OWI.[23]
No treatment-court dismissal	A traffic offense, including OWI, cannot be dismissed on completion of a drug or sobriety treatment court; guilt is entered at admission.[24]

The domestic violence deferral under MCL 769.4a is limited to assault charges against a family or dating partner and is not a path for OWI.^[25] A delayed sentence is possible in some cases, but a guilty plea accepted by the court is still a conviction for driving-record purposes.^[26][27]

OWVI as a lesser offense, and what it still means

Operating while visibly impaired (OWVI) is a separate offense under MCL 257.625(3): driving when alcohol or drugs have visibly impaired the ability to operate the vehicle.^[28] If a person is charged with OWI, a judge or jury may find the person guilty of OWVI instead.^[28] The zero-tolerance bar does not stop an OWVI plea.^[2]

Consequence	OWVI, first offense
Criminal penalty	Misdemeanor: up to 93 days in jail, a fine up to $300, and/or up to 360 hours of community service.[5]
License	90-day suspension, with a restricted license possible for all or part of it; 180 days if a controlled substance was involved.[6]
Points	4 points on the driving record.[7]
Prior conviction	A violation of section 625 (other than 625(2)) counts as a "prior conviction" for later OWI enhancement.[8]
Repeat offense	OWVI within 7 years of a prior, or after two priors at any time, tracks the second-offense and felony OWI penalties.[29]

For comparison, a first OWI carries up to 93 days, a $100 to $500 fine and up to 360 hours of community service, and a 180-day license suspension with no restricted license in the first 30 days.^[30][31] More detail is in the OWVI guide and the penalties chart.

Consequences that follow any OWI plea

• Alcohol assessment. Before sentencing for any of the main OWI offenses, the court must order a screening and assessment.^[32]
• License action by the Secretary of State. The Secretary of State, not the court, imposes the license suspension when it receives the conviction record.^[33]
• Drug findings. When an OWI or OWVI charge is based on a drug, the court must make a finding on a plea whether the person was under the influence of or impaired by a controlled substance, and report it to the Secretary of State.^[34]
• Prior for the future. Even a conviction later set aside may be used as a prior conviction for charging a second or later offense.^[35]
• Set-aside. One first-violation OWI offense, a term that includes a first OWVI under MCL 257.625(3), may be set aside on application filed 5 or more years after the latest of sentencing, completion of probation, discharge from parole, or completion of any imprisonment.^{[36][28][37][38]}

The license consequences and set-aside guides explain each of these.

Felony pleas and sentence agreements

In felony cases, a plea to an offense other than the one charged needs the prosecutor's consent.^[39] A plea agreement may include a specific sentence or range; if the court will not follow an agreed sentence, the defendant may withdraw the plea, but a judge's refusal to follow a prosecutor's recommendation alone does not allow withdrawal.^[40] The court must warn that misconduct before sentencing means it will not be bound by any sentencing agreement or evaluation.^[41]

With the court's and prosecutor's consent, a felony defendant may enter a conditional plea that preserves a specified pretrial ruling, such as a suppression ruling, for appeal.^[42] A felony OWI third offense reduced to a misdemeanor after bindover is still sentenced in circuit court.^[43]

Withdrawing a plea

In felony cases, the defendant may withdraw any plea until the court accepts it on the record.^[44] After acceptance but before sentence, the defendant is entitled to withdraw if the judge says it cannot follow an agreed sentence or its own statement of the sentence, unless the defendant committed misconduct such as missing sentencing or violating bond.^[44]

In district court, a defendant may not challenge a plea on appeal without first moving in the trial court to withdraw it for noncompliance with the plea rules.^[9] The motion may be made before or after sentence. If the court finds a deviation affecting substantial rights, it must correct it and let the defendant choose to let the plea stand or withdraw it.^[45]

Appeals after a plea are by application for leave; see appealing an OWI conviction. What happens at sentencing is covered in how OWI sentencing works.