The preliminary examination in a felony OWI case

The preliminary examination is a hearing in district court where a judge decides whether there is enough evidence to send a felony charge to circuit court for trial. In a felony OWI case the standard is probable cause: if the court finds probable cause that a felony was committed and that the defendant committed it, the defendant is "bound over" to circuit court.^[4]

This page explains when a preliminary exam happens in an OWI case, how it is scheduled, the evidence rules, waiver, and the possible results. It does not predict outcomes; whether probable cause exists depends on the evidence in each case.

Which OWI cases have a preliminary exam?

Only felonies. There is no preliminary examination for a misdemeanor that will be tried in district court, so a first or second OWI goes from arraignment to a pretrial conference instead.^[2] The pretrial conference guide covers that track.

OWI-related charges that are felonies under MCL 257.625 include these (the list is not complete):^{[9][10][11][12]}

• OWI after two or more prior convictions, at any time (OWI third offense).^[9]
• OWI causing the death of another person.^[10]
• OWI causing serious impairment of a body function of another person.^[11]
• OWI with a passenger under 16 when the driver has a prior conviction within 7 years.^[12]

Felony cases begin in district court. The district court holds the probable cause conference and the preliminary exam, and it keeps the case until an order binds the defendant over; from bindover, the circuit court has the case.^[1][13] See third-offense felony OWI and OWI causing death for the offenses themselves.

When is the preliminary exam held?

The dates are set at the felony arraignment. Under MCL 766.4 and MCR 6.104(E), the court sets a probable cause conference 7 to 14 days after arraignment and a preliminary examination 5 to 7 days after the conference.^[14][3]

Event	Timing	Source
Felony arraignment on the complaint	Court sets both dates and decides pretrial release[14]	MCR 6.104(E)
Probable cause conference	7 to 14 days after arraignment[3]	MCL 766.4(1)
Preliminary examination	5 to 7 days after the conference[3]	MCL 766.4(1)
Circuit court arraignment after bindover	Within 14 days, or conducted by the district judge[5]	MCL 766.13

The court may adjourn the exam for a reasonable time if the parties consent; over an objection it needs a finding of good cause on the record.^[15] A violation of the timing rule "is deemed to be harmless error unless the defendant demonstrates actual prejudice."^[15] The statute separately allows a magistrate to adjourn for good cause without either side's consent.^[16]

A defendant held in jail on a felony for 180 days or more must generally be released on personal recognizance, with certain delays excluded from the count.^[17]

The probable cause conference comes first

Both sides are entitled to a probable cause conference unless both waive it.^[18] The conference includes discussions of a possible plea agreement, bail and bond modification, and stipulations, and the district judge must be available to take pleas and consider bond requests.^[3][19] A district judge may accept a felony plea, but felony sentencing is done by an assigned circuit judge whose name must be available before the plea is taken.^[20]

If no plea agreement is reached and the exam is not waived, the preliminary examination is held as scheduled unless it is adjourned; with the court's approval the parties may agree to hold it sooner.^[21]

What happens at the exam

A verbatim record is made, and the court must let the prosecutor and the defendant subpoena and call witnesses, offer evidence, and examine and cross-examine witnesses.^[22] The court conducts the exam under the Michigan Rules of Evidence.^[22][7]

There is an important statutory exception for written reports. Under MCL 766.11b, certain records are "not excluded by the rule against hearsay" at the preliminary exam and come in without the author or any other foundation, including:^[8]

• certified copies of court and state agency records, such as a judgment, docket entry or register of actions;^[8]
• business records other than law enforcement reports;^[23]
• reports by law enforcement officers or public agencies other than the police investigative report, such as a State Police forensic technician's findings, a laboratory report or a medical report.^[8]

Either side may subpoena the author of such a report on a satisfactory showing that live testimony will be relevant to the probable-cause decision.^[8] In an OWI case that matters for blood-test results and toxicology reports. The rules for those tests are covered in blood tests in OWI cases.

If the court determines that offered evidence is excludable, it must exclude it on motion or objection.^[24] A ruling at the exam does not stop a party from asking the circuit court to decide the same question again, on the prelim record, a supplemented record, or a new hearing.^[24] The parties may also stipulate that a later suppression motion be decided on the preliminary exam transcript.^[25] See motions to suppress.

Prior convictions in a third-offense case

A felony OWI third offense rests on prior convictions. To seek an enhanced sentence (or vehicle forfeiture) based on priors, the prosecuting attorney must list the prior convictions on the complaint and information.^[26] The statute says a prior conviction "must be established at sentencing" by documents such as a judgment of conviction, an abstract, a register of actions, the driving record or the presentence report, or by the defendant's admission.^[27] The prior-convictions guide explains which convictions count.

The possible results

Finding	What follows
Probable cause of a felony	The court must bind the defendant over for trial in circuit court.[4]
Probable cause only of an offense the district court can try (a misdemeanor)	The case proceeds in district court as if that offense had been charged.[4]
No probable cause	The court must discharge the defendant without prejudice or reduce the charge to a non-felony.[5][6]

A discharge without prejudice lets the prosecutor bring the same charge again. Except as MCR 8.111(C) provides, the later exam must be held before the same judicial officer, and the prosecutor must present additional evidence.^[6] After a bindover, if the circuit court on a proper motion finds that the exam rules on conduct, exclusion, probable cause or discharge were violated, it must dismiss the information or remand the case to district court.^[28]

Waiving the preliminary exam

A defendant may waive the preliminary examination only with the consent of the prosecuting attorney.^[7] On a waiver, the court must bind the defendant over for trial on the charge in the complaint or any amended complaint.^[7] Whether to waive is a decision for the defendant with counsel; this guide does not recommend either choice.

Lawyers at the exam

At a felony arraignment the court must tell the defendant of the right to a lawyer at all court proceedings and to a lawyer at public expense if the defendant cannot afford one.^[29] Under the Michigan Indigent Defense Commission's standards, appointed counsel represents an eligible defendant at pretrial proceedings and other critical stages.^[30] A court may not accept an initial waiver of counsel in a felony without advising the defendant of the charge, the maximum prison sentence, any mandatory minimum and the risks of self-representation.^[31] See getting a court-appointed lawyer.

After bindover

After bindover, the case continues in circuit court with arraignment on the information.^[5] If the prosecutor intends to seek a habitual-offender enhancement, written notice must be filed within 21 days after that circuit arraignment.^[32] If a defendant bound over on a felony later pleads guilty to or is found guilty of a misdemeanor, the circuit court does the sentencing.^[33] A party who wants to challenge the bindover decision must do so before any guilty or no-contest plea, or before trial.^[34]

Next steps are covered in plea agreements, jury trials and felony OWI sentencing guidelines. The Domestic Violence guide's preliminary examination page covers the same court rules from a different angle.