9.4Operating While Intoxicated (OWI)—Section 625(1)
“A person, whether licensed or not, shall not operate a vehicle on a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within [Michigan] if the person is operating while intoxicated.” MCL 257.625(1).
•M Crim JI 15.1 addresses the different types of operating while intoxicated offenses that a jury may consider.
•M Crim JI 15.1a addresses the elements of operating with high bodily alcohol content under MCL 257.625(1)(c).
•M Crim JI 15.2 addresses the common elements of operating while intoxicated under MCL 257.625(1) and operating while visibly impaired under MCL 257.625(3), discussed in Section 9.6.
•M Crim JI 15.3 addresses the elements of operating while intoxicated under MCL 257.625(1).
•M Crim JI 15.5 addresses factors for the jury to consider when the defendant is charged with operating while intoxicated and/or operating while visibly impaired, which is discussed in Section 9.6.
•M Crim JI 15.6 addresses possible verdicts where operating with a high bodily alcohol content under MCL 257.625(1)(c) is not charged.
•M Crim JI 15.6a addresses possible verdicts where operating with a high bodily alcohol content under MCL 257.625(1)(c) is charged.
•M Crim JI 15.7 provides a verdict form for use where operating with a high bodily alcohol content under MCL 257.625(1)(c) is not charged.
•M Crim JI 15.7a provides a verdict form for use where operating with a hight bodily alcohol content under MCL 257.625(1)(c) is charged.
“If a person is convicted of violating [MCL 257.625(1)], all of the following apply:
(a) Except as otherwise provided in [MCL 257.625(9)(b) and MCL 257.625(9)(c)11], the person is guilty of a misdemeanor punishable by 1 or more of the following:
(i) Community service for not more than 360 hours.
(ii) Imprisonment for not more than 93 days, or, if the person is convicted of violating [MCL 257.625(1)(c)], imprisonment for not more than 180 days.
(iii) A fine of not less than $100.00 or more than $500.00, or, if the person is guilty of violating [MCL 257.625(1)(c)], a fine of not less than $200.00 or more than $700.00.
(b) If the violation occurs within 7 years of 1 prior conviction, the person must be sentenced to pay a fine of not less than $200.00 or more than $1,000.00 and 1 or more of the following:
(i) Imprisonment for not less than 5 days or more than 1 year.
(ii) Community service for not less than 30 days or more than 90 days.
(c) If the violation occurs after 2 or more prior convictions, regardless of the number of years that have elapsed since any prior conviction, the person is guilty of a felony and must be sentenced to pay a fine of not less than $500.00 or more than $5,000.00 and to either of the following:
(i) Imprisonment under the jurisdiction of the department of corrections for not less than 1 year or more than 5 years.
(ii) Probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. Not less than 48 hours of the imprisonment imposed under this subparagraph must be served consecutively.
(d) A term of imprisonment imposed under [MCL 257.625(9)(b) or MCL 257.625(9)(c)] must not be suspended unless the defendant agrees to participate in a specialty court program and successfully completes the program.” MCL 257.625(9).
Only applicable sanctions are listed below; accordingly, if a particular sanction is omitted from this section, it is not applicable to this offense. The Offense Code Index for Traffic Violations published by the secretary of state and sourced from the Michigan Department of State Court Manual includes a table detailing traffic offenses and applicable sanctions. See Section 1.41 for more information on abstracting procedures.
•Six points. See MCL 257.320a(1)(c). See Section 1.42 for more information on points.
•License suspension/revocation (length dependent on specific conviction and criminal history). See MCL 257.319(8)(a); MCL 257.319(14). See Section 1.45 for more information on license suspension and Section 1.44 for more information on license revocation.
•Violation of MCL 257.625(1)(a) or MCL 257.625(1)(b) and no prior convictions within seven years: mandatory 180-day suspension; possible restricted license after 30 days under certain circumstances. See MCL 257.319(8)(a); MCL 257.319(14).
•Violation of MCL 257.625(1)(c) and no prior convictions within seven years or no more than two convictions within 10 years: mandatory one year suspension; possible restricted license after 45 days under certain circumstances. See MCL 257.319(8)(g); MCL 257.319(14).
•Any combination of two convictions within seven years for offenses listed in MCL 257.303(2)(c)(i)-(iii): mandatory revocation of at least one year (length dependent on various factors). See MCL 257.303(2)(c); MCL 257.303(4)(a).
•Any combination of three convictions within 10 years for offenses listed in MCL 257.303(2)(g)(i)-(iii): mandatory revocation of at least one year (length dependent on various factors). See MCL 257.303(2)(g); MCL 257.303(4)(a).
•Vehicle immobilization (length dependent on specific conviction and criminal history). See MCL 257.625(9)(e); MCL 257.904d(1). See Section 1.47 for more information on vehicle immobilization.
•No prior convictions: immobilization may be ordered for not more than 180 days. See MCL 257.625(9)(e); MCL 257.904d(1)(a).
•Conviction under MCL 257.625(1) within seven years after a prior conviction: mandatory immobilization for not less than 90 days or more than 180 days, unless forfeiture is ordered under MCL 257.625n. See MCL 257.625(9)(e); MCL 257.904d(1)(c).
•Conviction under MCL 257.625(1) after two or more prior convictions: mandatory immobilization for not less than one year or more than three years, unless forfeiture is ordered under MCL 257.625n. See MCL 257.625(9)(e); MCL 257.904d(1)(d).
•Vehicle forfeiture may be imposed for a violation of MCL 257.625(9)(b) or MCL 257.625(9)(c). See MCL 257.625(9)(f); MCL 257.625n. See Section 1.49 for more information on vehicle forfeiture.
•Ignition interlock device may be ordered as a condition of probation. See MCL 257.625(24); MCL 257.625k; MCL 257.625l. Ignition interlock device must be ordered if offender is issued a restricted license under MCL 257.319(8)(g). See MCL 257.319(8)(h)-(i). See Section 9.12 for more information on ignition interlock devices.
•Registration denial is required under certain circumstances. See MCL 257.219(1)(c)-(d). See Section 1.50 for more information on registration denial.
E.Issues12
1.Definition of Place Generally Accessible to Motor Vehicles
The trial court erred by dismissing the defendant’s OWI charge where the defendant backed his vehicle out of his garage into his private driveway to a point in line with his house and then pulled his car back into the garage. People v Rea, 500 Mich 422, 425-426 (2017). Consulting the dictionary definitions of terms not defined by the MVC, the Court concluded that the phrase generally accessible in MCL 257.625(1) “means ‘usually capable of being reached,” and MCL 257.625(1) therefore “prohibits an intoxicated person from operating a vehicle in a place that is usually capable of being reached by self-propelled vehicles.” Rea, 500 Mich at 429-432 (noting that it was error to conclude “that whether a place is ‘generally accessible to motor vehicles’ depends on whether the general public ‘widely’ or ‘popularly’ has permission to enter the location”). In this case, the defendant’s private driveway was designed for vehicular travel, and “[a]reas designed for vehicular travel, are by their nature, areas a vehicle is usually capable of accessing.” Id. at 434-435. “Additionally, there [was] nothing on [the] defendant’s driveway that would prevent motor vehicles on the public street from turning into it.” Id. at 435. “Given these facts, defendant’s driveway is a place motor vehicles are usually capable of entering.” Id. Therefore, the “defendant’s driveway was generally accessible to motor vehicles under MCL 257.625(1).” Rea, 500 Mich at 435.
The district court “did not err by concluding that the area in which defendant’s vehicle was found was generally accessible to motor vehicles” where the case involved “’a road that falls off into a ditch area a little bit, then kind of levels out in, essentially, a field.’” People v Parrott, 335 Mich App 648, 676-677 (2021) (the ditch and field were also in close proximity to an intersection). “Although . . . there were some obstacles, such as bushes lining the uncultivated field, it is clear that defendant was nonetheless able to access the field without extraordinary effort,” and “there was nothing in the area that prevented defendant’s vehicle from entering the field.” Id. at 676-677.
2.Definition of Open to the General Public
The phrase “other place open to the general public” in MCL 257.625(1) refers to public accessibility and includes areas that invite and do not have any barriers to public access. People v Hawkins, 181 Mich App 393, 398-399 (1989). “The language of [MCL 257.625(1)] focuses upon the accessibility of the area to the public.” Hawkins, 181 Mich App at 396. “‘For an area to be “open to public use” it does not have to be open to “everybody all the time.” The essential feature of a public use is that it is not confined to privileged individuals or groups whose fitness or eligibility is gauged by some predetermined criteria, but is open to the indefinite public. It is the indefiniteness or unrestricted quality of potential users that gives a use its public character.’” Hawkins, 191 Mich App at 398-399, quoting State v Boucher, 207 Conn 612, 615 (1988) (citations omitted).
A shopping center parking lot was open to the general public under MCL 257.625(1) where there were no signs posted indicating that the parking lot was available for parking by the general public and no businesses were open in the shopping center at the time the defendant was driving there but there were also no signs posted restricting the use of the parking lot and testimony indicated that the lot was used after the stores were closed for various purposes. Hawkins, 181 Mich App at 395, 399.
A trailer park road was open to the general public under MCL 257.625(1) where the road was built and maintained privately but open 24 hours a day, and persons using the roadway as a shortcut were not prosecuted for trespassing. City of Holland v Dreyer, 184 Mich App 237, 239 (1990).
3.Definition of Vehicle
A personal electric scooter qualifies as a vehicle under MCL 257.625(1) because the scooter is “a device upon which a person [is] transported upon a highway.” People v Lyon, 310 Mich App 515, 516-517 (2015) (the defendant was driving the scooter “along the paved portion of the ‘curb lane’” and “weaving into the traffic lane” on a public highway; when stopped by police he failed field sobriety tests and admitted he was intoxicated). The Court noted that “the definition of ‘vehicle,’ the term actually used in . . . MCL 257.625, is much more inclusive than the definition of ‘motor vehicle[.]’” Lyon, 310 Mich App at 519. “[T]he MVC govern[s a] defendant’s conduct when he [or she] use[s a] scooter as a vehicle upon a highway[]” and thereby undertakes “the duties of a vehicle driver, which include refraining from driving while intoxicated[.]” Id. at 520-521.
4.Double Jeopardy Considerations13
A “defendant’s convictions of both OWI[, MCL 257.625(1),] and OWI-injury[, MCL 257.625(5),] for the same intoxicated driving incident violates the multiple punishments prong of the [federal and state constitutions’] double jeopardy clauses.” People v Miller, 498 Mich 13, 26 (2015). The “Court of Appeals erred by concluding that the Legislature did not ‘evince a clear expression of any intent to allow . . . multiple punishments for the same offense[;]’” rather, “in light of MCL 257.625(7)(d), [which specifically authorizes multiple convictions of and punishments for OWI with a minor in the car under MCL 257.625(7) and OWI-injury or OWI causing death,] the omission of a similar clause providing explicit authority to convict a defendant of multiple operating while intoxicated offenses arising out of the same incident in either MCL 257.625(1) or [MCL 257.625](5) is a clear indication that the Legislature did not intend for defendants to be convicted of and punished for OWI and OWI-injury arising out of the same incident.” Miller, 498 Mich at 25-26.
5.Elements of OWI Generally
“OWI is a hybrid version of two offenses: MCL 257.625(1)(a) prohibits operating a motor vehicle under the influence of intoxicating liquor (OUIL) and MCL 257.625(1)(b) prohibits operating with an unlawful bodily alcohol content (UBAL). Therefore, under MCL 257.625(1), OWI requires proof of three elements: (1) the defendant operated a motor vehicle (2) on a highway or other place open to the general public or generally accessible to motor vehicles (3) while under the influence of liquor or a controlled substance, or a combination of the two, or with [an unlawful bodily alcohol content]. Notably, the third element is disjunctive; that is, it can be satisfied in either of the two ways.” People v Hyde, 285 Mich App 428, 447-448 (2009).
Note that element two, which addresses where a person is operating under the influence, “prohibits operating a vehicle while intoxicated in three types of locations: (1) upon a highway, (2) in a place open to the general public, or (3) in a place generally accessible[14] to motor vehicles.” People v Rea, 500 Mich 422, 428 (2017).
6.OWI is a Lesser Included Offense of OUIL
“With regard to the . . . ‘under the influence’ part of the Michigan OUIL statutory provision, the key instructive description of that offense comes from the decision in People v Lambert, 395 Mich 296 (1975).” Oxendine v Secretary of State, 237 Mich App 346, 353 (1999). In Lambert, 395 Mich at 305, our Supreme Court “indicated that OUIL would be committed if a defendant drove when the ‘defendant’s ability to drive was substantially and materially affected by consumption of intoxicating liquor.’” Oxendine, 237 Mich App at 354. “In contrast, the threshold for OWI is much lower.” Id. “A defendant commits OWI by driving when the ‘defendant’s ability to drive was so weakened or reduced by consumption of intoxicating liquor that [the] defendant drove with less ability than would an ordinary, careful and prudent driver. Such weakening or reduction of ability to drive must be visible to an ordinary, observant person.’” Id., quoting Lambert, 395 Mich at 305. “Accordingly, OWI is a lesser included offense of OUIL.” Oxendine, 237 Mich App at 354.
11.Stating that violations of MCL 257.625(1) constitute a felony when certain circumstances involving prior convictions exist.
12. Some of the cases discussed in this subsection predate several statutory amendments to MCL 257.625, and references to the statute’s provisions may be outdated. However, the amendments to the statute do not appear to affect the holdings discussed.
13.For a detailed discussion of double jeopardy, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 9.
14.The phrase generally accessible “means ‘usually capable of being reached[,]’” and MCL 257.625(1) therefore “prohibits an intoxicated person from operating a vehicle in a place that is usually capable of being reached by self-propelled vehicles.” See Section 9.4(E)(1) for further discussion of this issue.