Second Offense DUI/OWI
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What Happens After a Second Offense Drunk Driving in Michigan?
In Michigan, a second drunk driving or “Operating While Intoxicated” carries higher fines and jail time than a first-time Operating While Intoxicated offense. MCL 257.625(7)(ii).
If this is your second OWI in your lifetime you can be charged with a second offense drunk driving. Your exact charge will depend on your blood alcohol content (BAC), but the minimum punishments for a second-offense drunk driving is significantly higher than for a first-time offense.
Punishments for a Second Drunk Driving
A second offense drunk driving carries a punishment of a maximum of one year in jail with mandatory jail time of 5 days to one year, fines of $200 to $1,000, a minimum of 30 days of community service (with a maximum 90 days), the possibility of an ignition interlock device during probation, and mandatory vehicle immobilization. As stated, a second offense drunk driving could result in a mandatory jail sentence of 5 days to one year. However, if sentenced to sobriety court you could have any jailtime suspended upon your successful completion of sobriety court. MCL 257.625(7)(ii)(A).
License Consequences for a Second Drunk Driving
If you have been convicted of a second drunk driving offense within seven years your license will be revoked for a minimum of 1 year. A license revocation is drastically different than a license suspension. Having your license suspended (such as suspended for 30 days, restricted for 150 days for your first drunk driving) means that after a certain amount of time, you will get your license back “automatically”. However, if your license is revoked due to a second offense drunk driving, it is taken away for LIFE. In order to reinstate your driver’s license, you are required to go through the driver’s license restoration process. This means that you must submit an application to the Secretary of State, request a hearing, attend that hearing, and prove by Clear and Convincing evidence that you meet the requirements to have your driver’s license reinstated. However, in order to even be eligible to request this hearing you must first serve the revocation period of 1 year from the date of your plea before you are eligible to apply for a SOS hearing.
The only way around the revocation is to get into a sobriety court program. If you are sentenced to sobriety court, there may be an opportunity to have a restricted license (with interlock device) reinstated prior to the one year revocation, without having to request a hearing with the Secretary of State. If approved for a restricted license with sobriety court, you would only need to request a hearing with the Secretary of State once your revocation period is completed and you have completed one year on the interlock system, to have your full license reinstated.
Can I Set Aside/Expunge a Second Offense Drunk Driving?
Prior to February 19, 2022, any drunk driving offense was not eligible to be set aside. However, as of February 19, 2022, first time operating while intoxicated convictions are now eligible for expungement to be set aside under certain circumstances pursuant to MCL 780.621c (amended). The law does not provide for a second offense drunk driving to be set aside/expunged at this time.
Pleading Down a Second-Offense Drunk Driving
A second drunk driving can still be the subject of plea negotiations, just like a first offense can be. The mandatory punishment for a second offense drunk driving is greater, but the State is still required to prove the underlying drunk driving offense beyond a reasonable doubt at trial in order to secure a conviction. Therefore, a second offense drunk driving is still entitled to the same drunk driving defenses as any other drunk driving. Those potential defenses include:
- Problems with the chemical test used to measure BAC.
- A margin of error inherent in the blood testing procedure that may reduce a higher level drunk driving to a lower level charge
- Violation of your rights, such as your right to counsel or your right to remain silent
- The police conduct an illegal stop
- Insufficient evidence of impairment
A drunk driving defense lawyer will often times be able to negotiate a plea agreement with the prosecutor to reduce or dismiss certain drunk driving charges. One possibility is to negotiate the second offense drunk driving down to a first offense drunk driving, even if you have a prior/first offense drunk driving.
Contact Tanis Schultz, PLLC to speak to our experienced Grand Rapids OWI attorneys.
There are many options available to you that your criminal defense attorney should explain, whether it’s challenging the evidence legally or working on mitigation measures to ensure you receive the best deal possible.
Call Tanis Schultz today at 616-608-7149 or use our contact form to discuss your options.
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