9.6Operating While Visibly Impaired (OWVI)—Section 625(3)
“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,1 including an area designated for the parking of vehicles, within [Michigan] when, due to the consumption of alcoholic liquor, a controlled substance, or other intoxicating substance, or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance, the person’s ability to operate the vehicle is visibly impaired.” MCL 257.625(3).
“If a person is charged with violating [MCL 257.625(1)], a finding of guilty under [MCL 257.625(3)] may be rendered.” MCL 257.625(3).
•M Crim JI 15.2 addresses the common elements of operating while visibly impaired under MCL 257.625(3), and operating while intoxicated under MCL 257.625(1), discussed in Section 9.4.
•M Crim JI 15.4 addresses the elements of operating while visibly impaired under MCL 257.625(3).
•M Crim JI 15.5 addresses factors for the jury to consider when the defendant is charged with operating while visibly impaired and/or operating while intoxicated, which is discussed in Section 9.4.
MCL 257.625(11) provides in part2 that “[i]f a person is convicted of violating [MCL 257.625(3)], all of the following apply:
(a) Except as otherwise provided, in subdivisions (b) and (c), 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.
(iii) A fine of not more than $300.00.
(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 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 subdivisions (b) or (c) must not be suspended unless the defendant agrees to participate in a specialty court program and successfully completes the program.”
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. The Offense Code Index for Traffic Violations is available at: http://www.michigan.gov/documents/OffenseCode_73877_7.pdf. See Section 1.41 for more information on abstracting procedures.
•Four points. See MCL 257.320a(1)(i). See Section 1.42 for more information on points.
•$500 driver responsibility fee for two consecutive years. See MCL 257.732a(2)(b)(i).3
•License suspension/revocation (length dependent on specific conviction and criminal history). See MCL 257.319(8)(b); MCL 257.319(13). See Section 1.46 for more information on license suspension and Section 1.45 for more information on license revocation.
•No prior convictions within seven years: mandatory 90-day suspension; period increased to 180 days if impairment was due to controlled substance or combination of alcohol and controlled substance; restricted license discretionary during all or a specified portion of suspension. See MCL 257.319(8)(b); 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(11)(e); MCL 257.904d(1). See Section 1.48 for more information on vehicle immobilization.
•No prior convictions: immobilization may be ordered for not more than 180 days. See MCL 257.625(11)(e); MCL 257.904d(1)(a).
•Conviction under MCL 257.625(3) 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(11)(e); MCL 257.904d(1)(c).
•Conviction under MCL 257.625(3) 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(11)(e); MCL 257.904d(1)(d).
•Vehicle forfeiture may be imposed for a violation of MCL 257.625(3). See MCL 257.625(11)(f); MCL 257.625n. See Section 1.50 for more information on vehicle forfeiture.
•Registration denial is required under certain circumstances. See MCL 257.219(1)(c)-(d). See Section 1.51 for more information on registration denial.
“Although proof that a vehicle was being operated in an impaired manner, e.g., weaving from side to side, would . . . greatly strengthen a prosecutor’s case by indicating that a defendant’s ability to drive was visibly impaired, the statute does not compel such proof to convict a defendant.” People v Mikulen, 324 Mich App 14, 23-24 (2018). Rather, the statute “require[s] proof that a person’s ability to operate a motor vehicle was visibly impaired[.]” Id. at 17. “A defendant commits [OWVI] 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.’” Oxendine v Secretary of State, 237 Mich App 346, 354 (1999), quoting People v Lambert, 395 Mich 296, 305 (1975). See also Mikulen, 324 Mich App at 22 n 3. “[T]his evidentiary mandate compels a prosecutor to proffer evidence of a visual or observational nature, i.e., evidence describing or depicting actions, conduct, characteristics, or movements of the person during the pertinent time period, revealing an impaired ability relevant to operating a vehicle.” Id. at 17. “[T]he focus is on whether the person’s capacity to drive was impaired as could be observed by another.” Id. at 23 (concluding that the OWVI charge was properly submitted to the jury where “there was evidence that defendant was operating a motor vehicle, that he had consumed alcohol just prior to driving, and that, due to the consumption of alcohol, defendant had glassy, bloodshot eyes and failed sobriety tests, as was visible to an observed by the arresting officer,” and “the jury was permitted to assess whether [the] defendant’s ability to operate his vehicle was visibly impaired based on its viewing of the videotape of the stop and sobriety tests”).
“[T]he MMMA[4] does not supersede the OWVI statute.” People v Dupre, 335 Mich App 126, 139 (2020). “Under the influence as used in MCL 333.26427(b)(4) is not limited in meaning to how that phrase is understood with regard to the OWI statute, MCL 257.625(1). A person may be considered under the influence of marijuana if it can be shown that consumption of marijuana had some effect on the person, such that it weakened or reduced the person’s ability to drive such that the person drove with less ability than would an ordinary, careful, and prudent driver.” Dupre, 335 Mich App at 139-140 (cleaned up). “[A] driver operating while visibly impaired appears to do so negligently, in violation of MCL 333.26427(b)(1).” Dupre, 335 Mich App at 138 (“discern[ing] no intent within the MMMA to immunize the visibly impaired driver from prosecution”).
1 In the context of MCL 257.625(1), the Court held that 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[,]” which may “encompass[] [a] defendant’s private driveway.” People v Rea, 500 Mich 422, 430-431, 436 (2017). See Section 9.4(E)(1) for further discussion of the issue.
2 Additional sanctions found in MCL 257.625(11)(e)-(f) are discussed in Section 9.6(D).
3 Beginning October 1, 2018, the driver responsibility fee law will no longer be in effect, meaning no new driver responsibility fee assessments, and outstanding driver responsibility fees will not be collected. See MCL 257.732a(10) and MCL 257.732a(11). See Section 1.43(C) for more specific information related to the elimination of driver responsibility fees.
4 Michigan Medical Marihuana Act, MCL 333.26421 et seq.