The pretrial conference in a Michigan OWI case

A pretrial conference is a scheduled court date where the prosecuting attorney, the defendant and the defense lawyer meet after the arraignment to see where the case stands. In a misdemeanor OWI case, Michigan's drunk-driving procedure statute requires the court to schedule one within 35 days of the arrest, orders the defendant to attend, and lets the court take a plea at the end of it.^[1]

This page covers the district-court (misdemeanor) pretrial in first- and second-offense OWI cases, what the law says can happen there, and how the felony version differs. It does not predict what any prosecutor will offer or how any judge will rule; those vary by court and by case.

Where the pretrial fits in an OWI case

Misdemeanor OWI cases are heard in district court.^[8] There is no preliminary examination in a misdemeanor case that will be tried in district court, so the usual path is arraignment, then the pretrial conference, then a plea or a trial.^[9] The step-by-step court process guide shows the whole sequence.

MCL 257.625b sets three time targets for misdemeanor OWI-type charges (OWI, OWVI, the under-21 offense, child endangerment, the Schedule 1 drug offense and the commercial 0.04 offense):^[10][1][4]

Step	Statutory target	Source
Arraignment	Not more than 14 days after arrest (or after a warrant is served, if later)[10]	MCL 257.625b(1)
Pretrial conference	Not more than 35 days after arrest (or after a warrant is served, if later); 42 days where the district has only one judge sitting in more than one location[1]	MCL 257.625b(2)
Final disposition (plea, verdict or other)	Within 77 days of arrest, not counting certain delays[4]	MCL 257.625b(3)

These targets do not apply to a felony OWI or to a misdemeanor that is joined with a felony.^[10] The full list of time limits is on the OWI case deadlines page.

What the court rules say a pretrial is for

The general district-court rule, MCR 6.610(B), lets the court on its own or on either side's motion direct the prosecutor, the defendant and the defense lawyer to appear for a pretrial conference.^[11] The same rule lets the court require "collateral matters and pretrial motions" to be filed and argued no later than the conference.^[11] That is why a court's scheduling order may tie the deadline for a motion to suppress evidence to the pretrial date. Whether a particular court does so is set by that court's own orders.

In practice, the topics people expect to come up at an OWI pretrial include:

• Whether the defense has the police reports, test results and recordings. The discovery rule applies in misdemeanor cases, and the prosecutor must answer a request within 21 days unless the court orders otherwise.^[12][13]
• Whether the parties have reached a plea agreement, and if so, its terms.^[1][14]
• Whether any motions will be filed, and when they will be heard.^[11]
• If the case is not resolved, the next date: a motion hearing, a further pretrial, or a trial date.

The discovery guide explains what the prosecution has to disclose and how to ask for breath-test results in writing before trial.

Who has to be there

The statute describes the pretrial as a conference among the prosecuting attorney, the defendant and the defendant's attorney, and it requires the court to order the defendant to attend.^[1] If a notice is unclear about whether you personally must appear, call the court clerk and ask.

A defendant who qualifies for a court-appointed lawyer has the right to have that lawyer at pretrial proceedings and during plea negotiations under the Michigan Indigent Defense Commission's Standard 4.^[15] The court-appointed lawyer guide explains who qualifies.

Failing to appear has its own consequence for a driver's license. When a person charged with an OWI-type offense fails to appear, the court mails a notice, and the Secretary of State suspends the license if the person does not appear within 7 days of that notice.^[16]

Can the pretrial be adjourned?

Yes, but only within a tight limit. Under MCL 257.625b(2), a pretrial may be adjourned on a party's motion for good cause, but no party gets more than one adjournment, and an adjournment may not exceed 14 days.^[1]

The 77-day disposition target leaves out delays caused by the unavailability of the defendant, a witness or evidence, an interlocutory appeal, or exceptional circumstances, but not delay caused by docket congestion.^[4]

What happens if the deadlines are missed

A common belief is that an OWI case must be thrown out if the court does not hold the pretrial within 35 days, or does not finish the case within 77 days. The statute says the opposite: "The court shall not dismiss a case or impose any other sanction for a failure to comply with this time limit."^[4][5] The same language appears in the 14-day arraignment rule.^[10]

That statutory language is separate from the constitutional right to a speedy trial. Under MCR 6.004(A), which applies in misdemeanor cases, a defendant whose constitutional speedy-trial right is violated is entitled to dismissal with prejudice.^[17] And a defendant held in jail for 28 days or more awaiting a misdemeanor trial must generally be released on personal recognizance, with certain delays left out of the count.^[18]

If a plea is entered at the pretrial

When a case resolves at the pretrial, the court takes the plea on the record. Before accepting a guilty or no-contest plea to an OWI offense, the judge must tell the defendant the maximum jail term and maximum fine and that the maximum license sanctions will be based on the Secretary of State's master driving record.^[2] The court rules also require the judge to find the plea understanding, voluntary and accurate, to advise of any mandatory minimum jail sentence, and to explain the trial rights being given up.^[3]

The judge must make the plea agreement part of the record and ask whether anyone promised anything beyond it, whether anyone made threats, and whether pleading is the defendant's own choice.^[14] The court rules also allow a written misdemeanor plea without a personal appearance when the judge finds that proper given the circumstances and the possible sentences.^[19]

One limit applies to every OWI charge: the court may not accept a plea to the under-21 "zero tolerance" offense in exchange for dismissing the original OWI charge, although it may dismiss on the prosecutor's motion.^[20] The plea agreements guide covers what a plea to OWVI or another charge still means for a license and record.

After a plea, the court must order an alcohol screening and assessment before sentencing in every OWI-type case.^[21] The alcohol assessment guide explains that step.

If the case does not resolve

If there is no plea, the case moves toward motions, a further pretrial, or trial. The Michigan Constitution guarantees a jury trial in every criminal prosecution, and a district-court jury has six members who must reach a unanimous verdict.^[22][23] Waiving the jury for a trial before the judge alone takes the prosecutor's consent and the court's approval.^[24] See jury trials in OWI cases.

Felony OWI: the probable cause conference

An OWI after two or more prior convictions (third offense) and OWI causing death or serious impairment of a body function are felonies.^[25][26][27] A felony case starts in district court, which holds the probable cause conference and the preliminary examination, but a circuit judge does the sentencing.^[28] At the felony arraignment the court sets a probable cause conference 7 to 14 days later and a preliminary examination 5 to 7 days after that.^[6][7]

The probable cause conference covers plea discussions, bail and bond modification, and stipulations, and the district judge must be available to take pleas.^[7][29] Both sides may waive it by giving the court written notice of whether they will hold the preliminary exam, waive it, or enter a plea.^[30] A district judge may accept a felony plea, but sentencing is done by an assigned circuit judge whose name must be available before the plea is taken.^[31] The preliminary examination guide picks up from there.

Practical points for the day of a pretrial

• Bring the court notice, the citation or charging paper, the paper license permit, and any bond paperwork.
• Arrive early; many courts hold pretrials for many cases at the same time and call them in turn.
• Keep a copy of every document you receive, including any written plea offer, and write down the next court date before you leave.
• If you have an appointed or retained lawyer, ask beforehand what will happen and whether you will see the judge.

The papers to keep page lists the documents an OWI case produces. For general procedure that OWI cases share with other misdemeanors, the Domestic Violence guide's page on pretrial conferences may also help.