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Criminal and Driver License Enhancement in Second Offense Drunk Driving Cases

Jul 18th, 2018 Driver's License Penalties DUI Penalties Criminal and Driver License Enhancement in Second Offense Drunk Driving Cases

If you have been charged with a second offense drunk driving case in Michigan, then you are probably wondering about how severely you will be punished.  The type of punishment will be based on both criminal enhancement and driver license enhancement.  Before discussing these differences, the first thing to know is about the two is that the judge will decide your punishment whereas the Michigan Secretary of State will decide your driver license sanction.

With that in mind, let’s first look at criminal enhancement.  The Michigan look-back period for second offense drunk driving is 7-years.  This means that a new DUI arrest occurring within 7- years after a prior DUI will be considered a second offense drunk driving.  The look-back period for criminal enhancement runs from date of conviction to date of arrest.

In this context enhanced means, the statute provides for the possibility of more jail time.  For example, for a first offense DUI the maximum jail time is 93 days with no minimum period of incarceration.  However, in the case of a second offense drunk driving, Michigan Compiled Laws § 257.625 provides as follows:

A person who violates this subdivision is guilty of a misdemeanor and must be sentenced to pay a fine of not less than $200.00 or more than $1,000.00 and to 1 or more of the following:

(A) Imprisonment for not less than 5 days or more than 1 year. Not less than 48 hours of this imprisonment must be served consecutively. This term of imprisonment must not be suspended.

(B) Community service for not less than 30 days or more than 90 days.

Notice the use of the word “must.”  This means there are a minimum mandatory 5 days in jail for a second offense drunk driving.

Now consider this example; if your new DUI arrest occurs 366 days after the date of your prior conviction date, then the above provisions would not apply because the prosecutor would be forced to charge you as a first offender.  However, because judges can still sentence you to up to 93 days on a first offense, this does not mean you won’t get jail time.  The judge will take the older prior DUI conviction into consideration in determining the appropriate sentence.  In fact, there is one local municipality that charges all second offenders as first offenders.  This “keeps the money local” but still allows the judge to sentence the offender exactly like a person charged as a second offender.

As indicated above, a second offense drunk driving carries with it a separate driver license sanction imposed by the Michigan Secretary of State.  The look-back period for driver license sanctions is calculated differently than the criminal enhancement.  This is because for driver license sanctions the look-back period runs from the date of conviction to date of conviction.  See People v. Vezina for more details on this fact.

Michigan law provides that the driver license sanction for a second offense drunk driving is a total revocation of your driver license.  This puts you in the position you were in prior to age 16, meaning you have no lawful way to drive.  The only way to obtain a license is to have a successful restoration hearing before a hearing officer.  You are eligible to request such a hearing after the one-year suspension.  See Michigan Compiled Laws § 257.304 and MCL §257.319 for more details about how this all works.

Now consider this example regarding driver license sanctions: if you are arrested for a new DUI 364 days after a prior DUI, then you will be charged as a second offender and subject to the 5-day minimum mandatory period of incarceration.  However, if you are not convicted until 366 days after your prior conviction, then you will only be subject to a first offense driver license sanction.  This means you’d avoid the mandatory license revocation and have no need for a driver license restoration hearing.  Your driver license will be treated as if you are a first offender despite the fact that you are properly charged as a second offender.

Also, if you are charged with a first offense DUI but actually have a prior within 7 years, then the Secretary of State will nevertheless impose the one-year mandatory period of license revocation.  While in this case the judge could not sentence you to more than 93 days and there is no mandatory 5-day sentence, the Secretary of State will still treat you as a second offender.

As should be clear, these are complicated subjects and you should not rely on internet research to determine how you will be punished for second offense drunk driving in Michigan.  Consequently, you should consult with an attorney to more fully understand this complicated area of Michigan law.