Preparing for OWI sentencing in Michigan: the assessment, the presentence report and the hearing

Between a guilty plea or verdict and the sentencing date, a Michigan OWI case goes through a required substance-abuse screening and assessment, and in felony cases a presentence investigation by a probation officer.^[1][2] At the hearing itself, the court hears from the defense, the defendant, the prosecutor and any victim before choosing a sentence within the limits the statute sets.^[4] This page describes those steps. It explains the process and does not suggest what anyone should say or do at sentencing.

The sentencing options themselves are covered in how OWI sentencing works and the penalties chart.

Step 1: The screening and assessment

Before imposing sentence for any OWI-family offense, including OWVI and the under-21 offense, the court must order the person to undergo screening and assessment by a person or agency designated by the state's office of substance abuse services.^[1] The purpose is to decide whether the person is likely to benefit from rehabilitative services, such as alcohol or drug education or treatment.^[1]

• High BAC or a prior. If the conviction is for 0.17 or more, or the person has one or more prior convictions, the court must order at least 1 year of rehabilitative programming, such as alcohol treatment or a self-help program, under a plan from a licensed assessor that the court approves.^[1]
• Two or more priors. The court must also order an evidence-based assessment for alcohol dependence and for whether FDA-approved medication-assisted treatment would help; the person may ask for an independent assessment, which the court must grant and consider.^[1]
• Medication is never compelled. Only a prescribing provider may recommend medication, the person may refuse it, and refusal is not contempt.^[1]
• Cost. If no other funding source exists, the person pays for the screening, assessment and ordered services.^[1]

The assessment is covered in detail in the pre-sentence alcohol assessment. One later consequence is worth knowing now: if a first-offense OWI is later considered for a set-aside, the court may look at whether the person took part in or benefited from rehabilitative programs ordered at sentencing or taken before sentencing.^[7]

Step 2: The presentence report

A presentence investigation report is written by a probation officer. It is required before sentencing anyone charged with a felony, and in a misdemeanor case it is prepared only if the court directs.^[2]

• What it contains. An evaluation and prognosis, any victim impact statement the victim asks to include, a recommended disposition, and for guideline offenses the computed sentencing range; under the court rule it also covers prior convictions, the offense, work history, and medical and substance abuse history.^[8]
• The interview. On request, the defense attorney must be given notice and a reasonable opportunity to attend the presentence interview.^[9]
• Seeing the report. If a report is prepared, the prosecutor and defense must receive copies at least 2 business days before sentencing; if not, either side may get an adjournment on oral motion.^[3]

Step 3: What the court must and may consider

The statute sets the outer limits. For example, a first OWI is punishable by one or more of up to 93 days in jail, a fine of $100 to $500 and up to 360 hours of community service, while a second offense within 7 years requires a $200 to $1,000 fine plus jail or community service.^[10][11] For a felony third offense the court must choose between 1 to 5 years in prison and probation with 30 days to 1 year in jail and 60 to 180 days of community service.^[12]

Rule	What it does
Non-jail presumption for ordinary misdemeanors (since 24 March 2021)	A misdemeanor other than a "serious misdemeanor" is presumed to receive a fine, community service or other non-jail, non-probation sentence; the court may depart if it states reasonable grounds on the record.[5]
OWI as a "serious misdemeanor"	A misdemeanor OWI is a serious misdemeanor, outside the presumption, only if it involved an accident that damaged another person's property or injured or killed another person.[6]
Explaining a departure	The Court of Appeals held in City of Auburn Hills v Mason (2024) that a district court had to explain why 93 days in jail was more suitable than the presumptive sentence.[13]
Repeat-offense jail	For a second or third offense, any jail or prison term imposed may not be suspended unless the defendant agrees to and completes a specialty court program.[14]
Felony guidelines	OWI 3rd is a class E offense; the guidelines are advisory but must be scored and considered, and departures must be explained.[15][16]

In felony cases, offense variable 18 scores points by alcohol level, from 5 points for visible impairment up to 20 points for 0.20 or more.^[17] See felony OWI and the sentencing guidelines.

Step 4: The sentencing hearing

Before imposing a misdemeanor sentence, the court must give defense counsel a chance to speak, let the defendant personally speak in mitigation, give the prosecutor an equal opportunity, and allow any victim present (or the victim's designee) to make an impact statement.^[4] The court must also state the credit given for time already served.^[4]

Where the OWI was a serious misdemeanor, the victim may also submit a written statement and may give an oral statement in person or remotely, and the court must consider it.^[18] Earlier in those cases, if the defendant did not plead guilty at arraignment, the prosecutor must offer the victim a chance to consult about the disposition, including plea and sentence negotiations.^[19] The court must order full restitution to victims, and in a misdemeanor case any dispute over the amount is decided by a preponderance of the evidence, with the prosecutor bearing the burden.^[20][21]

What a sentence can include

• Probation. Up to 2 years for a misdemeanor and 3 years for a felony, with early discharge possible after half the term.^[22][23] Optional conditions must be tailored to the person's assessed risks and needs.^[24]
• Probation conditions. Up to 12 months in county jail, treatment, substance abuse counseling, electronic monitoring, house arrest and other lawful conditions.^[25]
• Ignition interlock. For OWI or a 625(8) drug offense, driving only a vehicle with an approved interlock may be a probation condition.^[26]
• Community service. Unpaid, and the person reimburses the cost of supervising it.^[27]
• Costs and assessments. Minimum state costs of at least $50 (misdemeanor) or $68 (felony), a crime victim's rights assessment of $75 or $130, and possibly other costs, including reimbursement of police and emergency expenses.^[28][29][30]
• The vehicle. Immobilization of up to 180 days is discretionary after a first OWI; it is mandatory for 90 to 180 days for an OWI within 7 years of a prior conviction, and for 1 to 3 years after 2 or more prior convictions.^[31][32]

A defendant may not be jailed for unpaid costs unless the court finds an ability to pay and a lack of good-faith effort.^[33] Fines and costs are explained in fines, costs and fees, and probation in probation after an OWI.

Things that do not happen at OWI sentencing

• No youthful-trainee (HYTA) status. HYTA does not apply to Vehicle Code traffic offenses that are crimes, which includes OWI.^[34]
• No "under advisement." A court may not take an OWI under advisement, or mask, delay or divert the conviction from the driving record.^[35]
• No dismissal through sobriety court. A treatment court cannot dismiss a traffic offense; guilt is entered at admission.^[36] See sobriety courts.
• No court control of the license sanction. The Secretary of State, not the court, imposes the suspension when it receives the conviction record.^[37]

After sentencing

If the court imposed jail, even suspended, an indigent defendant who asks within 14 days after sentencing must be appointed appellate counsel.^[38] A misdemeanor appeal to circuit court must be filed within 21 days of the judgment.^[39] These and other dates are on the OWI deadlines calendar.