Michigan Motor Vehicle Code Section 625(6) (MCL 257.625(6)): Person Under 21 Operating With Any Alcohol in System

1. Definition and Elements of the Crime

Everyone knows that the drinking age in Michigan is 21. Everyone also knows that many teenagers will find a way to drink anyway. And when teenagers drink and drive, they invite not only danger but also criminal liability. Michigan law generally makes it illegal for anyone under 21 to drive with any alcohol in their system. This is often referred to as the “Zero Tolerance” law.

There are four elements to a Zero Tolerance offense, 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, the defendant was under the age of 21 at the time he or she operated the motor vehicle.
4. Fourth, at the time the defendant operated the motor vehicle, he or she:
   1. Had a bodily alcohol content of 0.02 grams or more per 100 milliliters of blood, 210 liters of breath, or 67 milliliters of urine.
   2. Had any presence of alcohol within his or her body resulting from the consumption of alcoholic liquor unless the presence of alcohol was the result of the consumption of alcoholic liquor as part of a generally recognized religious service or ceremony.

Note: it doesn’t matter if the defendant didn’t display any “bad driving” (weaving, swerving, etc.). If you’re pulled over for a legitimate reason and you have any alcohol in your system, you’re liable for a Zero Tolerance offense.

2. Examples

A 17-year-old is driving home from a house party, where he had several beers. A police officer pulls him over for running a red light. When the officer makes contact with the young man, the officer can smell alcohol on his breath. The young man admits to drinking. The officer arrests him, and a breath test shows a bodily alcohol content of 0.07.

A 16-year-old is driving home from church, where she had sacramental wine. A police officer pulls her over after seeing her momentarily drive onto the shoulder of the road. The officer asks if she’s been drinking, and she admits to having wine as part of a church service. The officer doesn’t believe her and arrests her under the Zero Tolerance law. A breath test shows a bodily alcohol content of 0.01.

3. Related Offenses

Other similar or related offenses include:

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

4. Defenses to Person Under 21 Operating With Any Alcohol in System

Two common defenses in Zero Tolerance cases are (1) consumption during a religious service, and (2) search and seizure violations.

Take the 17-year-old who was arrested driving home from the house party. Suppose that the dashcam video from the officer’s car shows that the young man did not actually run a red light. This implicates the Fourth Amendment of the United States Constitution, which prohibits unreasonable searches and seizures. Under the Fourth Amendment, a police officer cannot pull a car over without probable cause that the driver committed a crime or traffic violation. Here, with video proving that the young man didn’t run the red light, the police officer never had probable cause to pull him over. So the charge against him will be dismissed even though he was factually guilty of a Zero Tolerance offense.

Now consider the 16-year-old who claims that she consumed wine during a church service. If true, she has a complete defense under the Zero Tolerance law, which makes an exception for alcohol consumed “as part of a generally recognized religious service or ceremony.” Although, technically, the onus is on the prosecutor to prove that the alcohol was not consumed as part of a religious service, as a practical matter, the young woman would need to present evidence to corroborate her claim. This could include testimony from, for example, a pastor and parishioners who saw the young woman take the sacramental wine. If the evidence is compelling enough, the prosecutor may choose to dismiss the charge even though the police officer didn’t initially believe the young woman.

5. Penalties

A Zero Tolerance offense is a misdemeanor punishable by a fine of up to $250 and community service up to 360 hours. A second conviction within 7 years of a preceding conviction is a misdemeanor punishable by up to 93 days in jail, a fine of up to $500, and up to 60 days of community service.

6. Criminal Defense for Person Under 21 Operating With Any Alcohol in System

Having a criminal record can severely hinder a young person’s college and employment prospects. If your son or daughter has been charged with a Zero Tolerance offense, contact a skilled and experienced criminal defense attorney as soon as possible. A good attorney may be able to resolve the case in a way that leaves your son or daughter without a criminal record and with their future intact.

For more information about the Zero Tolerance law and to talk about your case, contact Grabel & Associates at (800) 342-7896.