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Michigan Motor Vehicle Code Section 625(3) (MCL 257.625(3)): Operating While Visibly Impaired

1. Definition and Elements of the Crime

Can I be convicted of drunk driving even if I was below the “.08” limit? Many of our clients are shocked to learn that the answer is yes. Under MCL 257.625(3), you are guilty of a crime if, regardless of your blood alcohol content, your ability to operate a vehicle was “visibly impaired” by alcohol. This is referred to as “operating while visibly impaired” or OWVI . You are considered “visibly impaired” when your ability to drive was “lessened to the point that it would have been noticed by another person.” Put another way, you are visibly impaired when you “drove with less ability than would an ordinary careful driver.” You can be visibly impaired by alcohol, a controlled substance, or any other “intoxicating substance” (e.g., huffing glue).

There are three elements to OWVI, all of which the prosecution must prove beyond a reasonable doubt:

  1. First, the defendant operated a motor vehicle. Operate means to drive or have actual physical control of the vehicle.
  2. Second, the defendant operated the vehicle on a highway or other place open to the public or generally accessible to motor vehicles, including a designated parking area.
  3. Third, that, due to the drinking of alcohol or use or consumption of a controlled substance or use or consumption of an intoxicating substance, the defendant drove with less ability than would an ordinary careful driver. The defendant’s ability to drive must have been lessened to the point that it would have been noticed by another person.

Note: it’s the ability to drive that must have been visibly lessened, not the manner of driving. That said, evidence that the defendant’s driving was impeccable, for instance, can be considered as evidence that the person was not impaired.

OWVI is rarely charged at the outset of a case. Instead, prosecutors will often bargain with defendants charged with a standard above-the-legal-limit operating while intoxicated (OWI) offense to plead guilty to OWVI. This is often a favorable deal because the penalty for OWVI is less severe than OWI. Still, in some jurisdictions, OWVI charges will frequently be brought when the client’s blood alcohol content was just under the 0.08 limit and there are other facts to suggest that the client was impaired.

2. Examples

A woman has a few drinks at a bar. Driving home, she’s pulled over by a police officer because one of her taillights is out. She admits that she has been drinking, and the officer has her do various field sobriety tests. Her performance is mediocre. The officer administers a roadside breath test, and the result is 0.06. The officer arrests her for OWVI. At the police station, the officer administers a more accurate breath test, and the result again is 0.06.

A man smokes some marijuana one night and falls asleep on his couch. He oversleeps. When he wakes up and sees the time, he rushes out the door to work. A police officer pulls him over for speeding. The man, having not changed from the night before, reeks of marijuana. He admits to having smoked the night before. The officer arrests the man for OWVI. The officer claims in his police report that the man was lackadaisical and that his movements were uncoordinated.

3. Related Offenses

Other similar or related offenses include:

  1. Operating with an unlawful bodily alcohol content, MCL 257.625(1)(b)
  2. Operating under the influence, MCL 257.625(1)(a)
  3. Operating with a high BAC, MCL 257.625(1)(c)

4. Defenses to Operating While Visibly Impaired

The most common defense in OWVI cases is failure to prove impairment beyond a reasonable doubt. Unlike an above-the-legal-limit case, “impairment” has no bright lines; it’s an inherently subjective concept. This creates opportunities to argue that impairment has not been fully proven.

Consider the woman pulled over after leaving the bar. The police officer witnessed no bad driving; he only pulled her over because of the taillight. She was below the legal limit. That leaves only the field sobriety tests as evidence of impairment. Her defense will have to be built around the argument that the field sobriety tests are not accurate indicators of impairment and that the lack of bad driving showed that she was not impaired. In the right court on the right day, this defense can certainly win the day.

Now take the man who overslept. Speeding (which most sober drivers do anyway) is not evidence of impairment. Instead, the prosecution’s case will depend on the officer’s claim that the man was lethargic and not moving normally. Key in a case like this will be any dashcam or bodycam video. It’s not unusual for a police report to say one thing while video shows another. If the video doesn’t back up the allegations in the police report, the defense should prevail.

5. Penalties

OWVI is a misdemeanor punishable by up to 93 days in jail, a fine of up to $300, community service up to 360 hours, and vehicle immobilization up to 180 days. Your license will be restricted for 90 days if you were impaired by alcohol and 180 days if you were impaired by a controlled substance.

6. Criminal Defense for Operating While Visibly Impaired

In the hands of a skilled criminal defense attorney, an OWVI case will often provide opportunities for creative arguments that can lead to dismissal or a favorable jury verdict. More commonly, a robust defense strategy will often force the prosecutor to negotiate. This can lead to resolving the case with a civil infraction (a traffic ticket) that leaves your criminal record clean.

For more information about operating while visibly impaired and to talk about your case, contact Grabel & Associates at (800) 342-7896.

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