Third-Offense OWI in Michigan: The Felony and Its Penalties

In Michigan, a third operating-while-intoxicated (OWI) offense is a felony whenever the driver has two or more prior convictions, no matter how long ago those convictions happened.^[1] The court must impose a fine of $500 to $5,000 and either a prison term of 1 to 5 years or probation that includes county jail time and community service.^[1][2]

People often call this "felony OWI" or "OWI 3rd." The same felony rule applies to a third offense under MCL 257.625(8), which bars driving with any amount of a Schedule 1 drug or cocaine in the body.^[1][8] This page covers the sentence, the lookback rule, the court process, and what follows for the license and the vehicle. Other pages explain how prior convictions are counted and the second-offense penalties.

Why a third OWI is a felony even when the priors are old

MCL 257.625(9)(c) applies when a violation "occurs after 2 or more prior convictions, regardless of the number of years that have elapsed since any prior conviction."^[1] This lifetime lookback came from 2006 PA 564, known as Heidi's Law, effective January 3, 2007.^[9] The Criminal Proceedings Benchbook states that for offenses after that date, a third conviction is a felony even if the earlier convictions are more than ten years old, and that the Court of Appeals rejected an ex post facto challenge in People v Perkins.^[9]

A common mistake is to assume the old ten-year rule still applies. It does not for ordinary OWI. Two related offenses do still use a ten-year window: the commercial-vehicle 0.04 offense becomes a felony only within 10 years of 2 or more priors, and so does the aircraft offense.^[10][11]

The prior convictions do not have to be OWIs under MCL 257.625(1). The definition of "prior conviction" also covers OWVI, the zero-tolerance offense (one only), the commercial 0.04 offense, vehicle-related manslaughter and similar crimes, and substantially corresponding convictions from other states, federal law and local ordinances.^[12][13] An earlier OWI that was set aside can still be considered a prior for charging a second or subsequent offense.^[14]

The sentence: prison, or probation with jail

The statute requires a fine and one of two sentence types.^[1][2]

Part of the sentence	What MCL 257.625(9)(c) says
Fine	Not less than $500 or more than $5,000, in every case.[1]
Option 1: prison	Imprisonment under the Department of Corrections for not less than 1 year or more than 5 years.[2]
Option 2: probation	Probation with 30 days to 1 year in the county jail and 60 to 180 days of community service; at least 48 hours of the jail must be served consecutively.[2]
Suspension of the term	Not allowed unless the defendant agrees to take part in, and successfully completes, a specialty court program.[3]

Before March 24, 2021, the statute simply said a repeat-offense jail or prison term "must not be suspended." 2020 PA 383 added the specialty-court exception.^[15] A "specialty court program" includes an adult drug treatment court, a DWI/sobriety court, a hybrid of the two, a mental health court, or a veterans treatment court.^[16]

A specialty court is not a way to make the charge go away. A treatment court may not dismiss a traffic offense, including OWI.^[17] More on these programs is in the guide to sobriety courts.

Other parts of the sentence

• The court must order a substance-abuse screening and assessment before sentencing, paid by the defendant if no other funding exists.^[18]
• With any prior conviction, the court must order a rehabilitative program of at least 1 year, based on a licensed assessor's plan.^[18]
• With 2 or more priors, the court must order an evidence-based assessment for alcohol dependence and possible medication-assisted treatment; the defendant may refuse medication without being held in contempt.^[18]
• The court may order the defendant to pay the costs of prosecution, and community service is unpaid, with the defendant reimbursing supervision costs.^[19][20]
• Felony probation may not exceed 3 years, with up to two 1-year extensions on specific findings.^[21]
• While on probation for a felony OWI, drinking alcohol is expressly not a "technical" probation violation, so the technical-violation jail caps do not cover it.^[22]

Fines, costs and assessments are explained in more detail in fines, costs and fees after an OWI, and treatment and probation in probation after an OWI.

Sentencing guidelines and habitual-offender charges

Because OWI 3rd is a felony, the state sentencing guidelines apply. Under MCL 777.12f, OWI 3rd is a class E public-safety offense.^[23] The class E grid gives recommended minimum ranges from 0 to 3 months at the lowest levels up to 24 to 38 months at the highest.^[24] The guidelines are advisory, but the court must score them and take them into account, and a departure must be reasonable and explained on the record.^[25]

The Michigan Supreme Court held in People v Bewersdorf that the general habitual-offender statutes apply to felony OWI, even when the felony is itself based on earlier OWIs.^[26] With one prior felony, the maximum may rise to 1½ times the normal maximum; with two or more, up to twice; and with three or more prior felonies, a felony that normally carries 5 years or more may be punished by up to life.^[27][28][29] For a habitual offender, the top of the guidelines range also increases by 25%, 50% or 100%.^[30] The prosecutor must file a written habitual-offender notice within 21 days after the arraignment on the information.^[31] The guide to felony OWI and the sentencing guidelines goes further.

How a felony OWI case moves through court

A felony OWI starts in district court, which holds the probable cause conference and the preliminary examination; sentencing must be done by a circuit judge.^[32] At the preliminary examination, the case is bound over to circuit court if the judge finds probable cause that a felony was committed and that the defendant committed it.^[33] See the preliminary examination in felony OWI cases.

To seek the felony enhancement, the prosecuting attorney must list the prior convictions on the complaint and information.^[34] The priors are proved to the judge at sentencing, not to the jury, using records such as a judgment of conviction, a register of actions, the driving record, the presentence report, or the defendant's admission.^[35] A prior misdemeanor conviction cannot be used to enhance a later charge if the defendant was entitled to appointed counsel and was neither represented nor validly waived counsel.^[36]

What happens to the driver's license

The Secretary of State, not the judge, imposes the license sanction once it receives the conviction record.^[37] Two OWI-type convictions within 7 years, or three within 10 years, require revocation and denial of a license.^[4][5] Those licensing windows of 7 and 10 years are not the same as the lifetime lookback that makes the crime a felony.^[4][5][1] If no prior conviction falls within 7 years and the revocation windows are not met, the suspension rules for a driver with no prior conviction within 7 years apply instead: 180 days, or 1 year for high BAC.^[38][39] The Secretary of State applies the licensing law in effect when the offense was committed.^[40]

After a revocation, no license may be issued for at least 1 year, or at least 5 years if the revocation came within 7 years of an earlier revocation or denial.^[41] The license does not come back automatically. The driver must rebut, by clear and convincing evidence, the presumption of being a habitual offender.^[42] The steps are in license revocation for repeat OWI and license restoration hearings. Separately, a third OWI is worth 6 points on the driving record.^[43]

What happens to the vehicle

• Immobilization of 1 to 3 years is mandatory after 2 or more prior convictions, unless the vehicle is forfeited.^[6][7]
• The court may order forfeiture of a vehicle the defendant owns, and multiple OWI convictions weigh heavily in favor of forfeiture.^[44][45]
• When an officer detains a driver for an offense that will require immobilization, the officer confiscates and destroys the plate and issues a temporary plate.^[46]
• A person whose license is suspended, revoked or denied for a third or subsequent OWI may not buy, lease or otherwise acquire a vehicle during that period.^[47]
• The Secretary of State must refuse to register a vehicle while the owner's license is suspended, revoked or denied for a third or subsequent OWI, except for a person issued a section 304 restricted license.^[48]

See vehicle immobilization and vehicle forfeiture for the procedures.

Lasting consequences of a felony conviction

A second or later OWI cannot be set aside under Michigan's expungement law, which allows only one first-offense OWI per lifetime.^[49][50] A felony conviction is a permanent bar to a Michigan concealed pistol license.^[51] Federal law bars firearm possession by anyone convicted of a crime punishable by more than one year.^[52] The page on OWI and gun rights covers the details.

Whether a particular earlier conviction counts as a "prior" can turn on its exact statute, its date, and whether counsel was present. Gather certified records of every earlier case (court name, case number, date of conviction) so they can be checked against the definitions.