Second OWI Within Seven Years: Michigan Penalties

A second OWI within 7 years of a prior conviction carries a mandatory fine of $200 to $1,000 and, in addition, 1 or more of: jail for 5 days to 1 year, or community service for 30 to 90 days.^[1] The fine is required either way; the jail-or-community-service choice belongs to the judge.^[1] The Secretary of State must also revoke the driver's license, the court must order the vehicle immobilized unless it is forfeited, and treatment becomes mandatory.^[4][6][8] This page covers each of those sanctions and the rules that changed in 2021.

When does an OWI count as a "second offense"?

The enhanced penalty applies when the new violation "occurs within 7 years of a prior conviction."^[1] The prosecutor must list the prior convictions on the complaint and information to seek the enhanced sentence.^[9] The prior is then proved at sentencing by documents such as a judgment of conviction, an abstract, a court register of actions, the driving record, the presentence report, or the defendant's admission.^[10]

What counts as a prior is broad. It includes any OWI-type conviction under section 625 except the offense of letting someone else drive (625(2)), the commercial 0.04 offense, and crash-related homicide and reckless or moving-violation offenses that caused death or serious injury.^[11] It also includes substantially corresponding convictions under local ordinances, federal law and other states' laws.^[11] Only one under-21 zero-tolerance conviction can be used as a prior, and two convictions from the same incident count as one.^[12][13] The full rules are on how prior convictions are counted.

The mandatory minimum and how it can be served

Sanction	Second OWI within 7 years
Fine	$200 to $1,000, mandatory[1]
Jail	5 days to 1 year, and/or[1]
Community service	30 to 90 days[1]
Suspending a jail term	Only with agreement to and completion of a specialty court program[2]
Treatment or self-help program	Mandatory, at least 1 year[8]
License	Revocation and denial[4]
Points	6 points[14]
Vehicle	Immobilization 90 to 180 days unless forfeited; forfeiture possible[6][15]

A common misstatement is that a second offense brings an automatic 5 days in jail.^[1] The statute's words are "1 or more of the following," so the court may order 30 to 90 days of community service instead of jail, or both.^[1] Community service is unpaid, and the person reimburses the cost of supervising it.^[16]

The second common misstatement runs the other way: that second-offense jail can never be suspended. That was the rule before 24 March 2021.^[3] Since 2020 PA 383 took effect that day, a jail term imposed for a second or third offense may be suspended if the defendant agrees to participate in, and successfully completes, a specialty court program.^[3][2] Specialty courts under the Vehicle Code include adult drug treatment courts, DWI/sobriety courts, hybrids of the two, mental health courts and veterans treatment courts.^[17] Under the drug treatment court statute, no one has a right to be admitted, and a person may not be admitted or remain under an agreement that would dismiss a traffic offense on completion.^[18][19] See sobriety courts and when jail is mandatory.

Whether the general presumption of a non-jail sentence for ordinary misdemeanors changes anything here is not addressed by any source located for this guide. That presumption excludes "serious misdemeanors," which include an OWI involving an accident that damaged another person's property or injured or killed someone.^[20][21] Any question about how the presumption interacts with the second-offense minimum is one for the court in the individual case.

Treatment and assessment

Before sentencing, the court must order a substance-abuse screening and assessment.^[8] Because the defendant has a prior conviction, the court must order completion of one or more rehabilitative programs, such as alcohol treatment or a self-help program, for at least 1 year, based on a licensed assessor's plan approved by the court.^[8] The person pays for the assessment and services if no other funding is available.^[8] With 2 or more priors the law adds an assessment for medication-assisted treatment, which the person may refuse without being held in contempt.^[8]

What happens to the driver's license?

On receiving records of any combination of 2 OWI-type convictions within 7 years, the Secretary of State must revoke the license and deny a new one.^[4] This is a revocation, not a suspension with a set end date. The minimum before a license can be issued is 1 year, or 5 years if this revocation came within 7 years of an earlier revocation or denial.^[5] After the minimum, the driver must win a hearing by rebutting, by clear and convincing evidence, the presumption that he or she is a habitual offender.^[22] A court order does not stop a section 303 revocation unless the order complies with MCL 257.323, and convictions from one incident count once.^[23]

There is one earlier route back to driving. A person whose license was suspended or revoked for 2 or more OWI or OWVI convictions may get a specialty court restricted license after 45 days, once the specialty court judge certifies admission to the specialty court interlock program and installation of an interlock on every vehicle the person owns or drives.^[24][25] See license revocation for repeat OWI, the sobriety court restricted license and license restoration hearings.

For a CDL holder, a second OWI or refusal from a separate incident, in any vehicle, brings lifetime revocation of commercial privileges, with possible reissue after at least 10 years.^[26]

What happens to the vehicle and the license plate?

For an OWI-type conviction within 7 years of a prior conviction, the court must order vehicle immobilization for 90 to 180 days unless it orders the vehicle forfeited.^[6][7] The order may not be suspended except as the statute provides, and if the defendant is jailed the immobilization begins when the jail term ends.^[27] While the vehicle is immobilized, the defendant may not buy, lease or otherwise obtain another vehicle.^[28] An immobilized vehicle may be sold, but not to a close family member or other use-tax-exempt buyer without a court order, and transfers meant to dodge immobilization or forfeiture are misdemeanors.^[29][30]

A second offense also opens the door to forfeiture. The judgment of sentence may order forfeiture of a vehicle the defendant owns in whole or in part, or return of a leased vehicle to the lessor.^[15] Multiple section 625 convictions weigh heavily in favor of forfeiture, and an innocent lienholder's interest is protected.^[31] Innocent co-owners are protected in the distribution of sale proceeds.^[32]

The plate can be affected at the roadside. When an officer detains a driver for an offense that will require immobilization, the officer must confiscate and destroy the plate, issue a temporary plate, and notify the Secretary of State.^[33] The Secretary of State then may not issue a new registration for that vehicle until the case is resolved or the vehicle goes to a buyer who pays use tax.^[34] A person admitted to the specialty court interlock program is exempt from immobilization and forfeiture while a participant in good standing or after completing the program, as long as the person does not later violate a law carrying either sanction.^[35] More detail is in vehicle immobilization, vehicle forfeiture and license plates and registration.

Second-offense OWVI and other variations

A conviction for operating while visibly impaired within 7 years of 1 prior conviction carries the same mandatory $200 to $1,000 fine and the same jail or community service options as a second OWI.^[36] With a child under 16 in the vehicle, one prior within 7 years makes the child-endangerment offense a felony.^[37] The commercial 0.04 offense has its own repeat penalty of up to 1 year and/or $1,000, and that jail term may not be suspended at all.^[38]

What comes next

A second-offense conviction cannot be set aside under Michigan's set-aside law, which allows only a first-violation OWI.^[39] A third OWI at any time is a felony.^[40] For a plain walk through a repeat case, see second or third OWI: what to expect and third-offense OWI: the felony.