Much has been previously written about Michigan’s new Super Drunk law which effectively doubles many of the penalties otherwise associated with a first offense drunk driving. The super drunk law in addition- imposes a requirement on the Secretary of State to issue restricted driving privileges to an offender after the first 45 days of suspension. In effect, this allows an offender who qualifies to drive a motor vehicle equipped with a breath alcohol ignition interlock device (BAIID) for the following 320 days. However, this BAIID requirement, and the super drunk law in general, is only applicable to first time offenders. For the most part, other than a new one-year treatment requirement, multiple offenders are treated just the same as before, that is, unless they qualify under the new sobriety court law.
Effective January 1, 2011, this new law, entitled “Restricted license; DWI/sobriety court interlock pilot project; definitions,” amends seven sections of MCL § 257.625[i] and adds one additional section.[ii] The additional section grants new privileges, procedures, and corresponding sanctions for repeat offenders. This change effectively creates some “license parity” between super drunks and repeat offenders. Most significantly, after an initial 45 days of suspension, qualifying repeat offenders will also be able to obtain restricted driving privileges with a BAIID provided they have successfully participated in a sobriety court program.
Second or Subsequent Offenders Defined
Under the Sobriety Court Law the Secretary of State is required to issue a restricted license to an individual whose license was restricted, suspended, revoked or denied based upon either of the following situations: (1) the individual has two or more convictions of driving while intoxicated or visibly impaired under Michigan Law; or (2) the individual has one conviction of driving while intoxicated or impaired under Michigan Law, which was preceded by 1 or more conviction for violating a “substantially similar” driving while intoxicated or visibly impaired local ordinance or law from another jurisdiction.[iii] The statute also allows the prosecutor to “count” convictions from jurisdictions outside of Michigan, in regards to underage drinking and driving in so far as the law in question meets the “substantially similar” requirement.[iv]
Sobriety Court Allows Repeat Offenders to Drive with a BAIID Equipped Car
If the individual is not otherwise ineligible to be licensed (see below discussion), the restricted license will only be issued after the individual’s drivers license has been suspended or revoked for 45 days, the assigned judge has certified to the Secretary of State that the individual has been enrolled in a DWI/sobriety program, and an approved ignition interlock device has been installed on each motor vehicle, operated or owned by the individual.[v]
This restricted license allows the individual to operate only the vehicle equipped with the approved BAIID and only for the purposes of traveling to and from: the individual’s residence, workplace, school, and court ordered drug/alcohol education or treatment programs.[vi] Once issued this restricted license the individual must submit to any driving skills test that the Secretary of State requires.[vii]
The issued restricted license remains effective until a hearing officer orders an unrestricted license.[viii] The individual who holds the restricted license only becomes eligible for an unrestricted license upon the occurrence of the later of the following events: court notification to the Secretary of State that the individual has successfully completed the DWI/sobriety court program, or upon the completion of the minimum license sanction that would have been imposed in absence of this section.[ix] Because this above element requires the occurrence to be the “later of” the two events, it appears that both events must occur. For example, if the minimum license sanction for a particular offender is one year, and they successfully completed the sobriety program in 9 months, they still do not become eligible for the unrestricted license until the one year sanction has lapsed. In contrast, if the one year sanction lapses and the individual has yet to complete the sobriety program, the individual remains ineligible for the unrestricted license until they successfully completed the program.
New Driver License Sanctions May be Imposed
On the other hand, if the Secretary of State has received notification from the DWI/sobriety court that the individual was terminated from the program or had committed certain violations, the Secretary of State is required to impose one of two possible license sanctions.[x] The first possible sanction is a suspension of the individual’s license for the full length of time provided by law notwithstanding the provisions of this act[xi] (the “old” license sanction). The second possible sanction results in license revocation and denial for the entire length of time provided by law if his conviction would have resulted in such if it not for this act.[xii]
Additionally, sanctions of revocation, denial, or suspension will be imposed if the offender operates a motor vehicle that is not equipped with the BAIID, removes or causes the BAIID to be removed from the motor vehicle owned or operated by the individual (unless authorized to do so by the Secretary of State), or is arrested for driving while intoxicated/impaired, or the arrest is based upon any other substantially similar ordinance or federal law.[xiii] If the offender is convicted of any offense which requires the cancellation, suspension, revocation or denial of the individual’s drivers license, the restricted license that the individual was issued under this section shall be suspended until the applicable required period has elapsed.[xiv] Furthermore, if the individual fails to pay any court-ordered costs or fines which resulted from the relative conviction, the restricted license issued to the individual under this section will be suspended pending the payment of those costs and fines.[xv]
Driver Responsibility Fees Held in Abeyance
Another interesting change is that all required driver responsibility fees to be assessed by the Secretary of State for the conviction(s) that resulted in the issuance of the restricted license under this section will be held in abeyance while the individual retains his restricted license and is participating in the DWI/sobriety court interlock pilot project.[xvi] At the close of the individual’s participation in said program, the driver responsibility fees will then be imposed by the Secretary of State and paid pursuant to the payment schedule as prescribed under Michigan Law.[xvii]
Immobilization and Forfeiture Gone
A very significant and welcome change relates to vehicle forfeiture and immobilization. Under this new act, if an individual is admitted to the DWI/sobriety court program, then his or her vehicle now becomes exempt from both forfeiture or immobilization provided the individual is a program participant in good standing or satisfactorily completes the program, and does not subsequently violate a Michigan law punishable by forfeiture or immobilization.[xviii]
However, even if the individual meets the above eligibility requirements, the restricted license will not be issued if the individual is otherwise ineligible to maintain a driver’s license under this act. For purposes of this section, “ineligibility” does not include persons whose license has been[xix]:
I. Denied for: failure to answer a citation, appear in court, or comply with an order of the court.[xx]
II. Previously revoked and subsequently denied for multiple convictions under: Michigan law, substantially corresponding local ordinances or laws of another state, or substantially corresponding laws. This section is applicable to those whose license has been revoked for qualifying convictions[xxi] along with any of the following[xxii]: two convictions in seven years, one conviction for a violation of 625 (b)[xxiii] in combination with any other offense within seven years, any three convictions within ten years, or a combination of two convictions within ten years as the result of an arrest on or before January 1, 1992.
IV. When the license has otherwise been suspended or revoked, conviction of other parts of the motor vehicle code, or where certain other financial obligations related to the operation of a motor vehicle have not been met[xxvi]
V. Implied consent suspensions or denials, or for the accumulation of 24 pts or more. [xxvii]
Thus, if the individual is ineligible to receive a driver’s license and does not fall into one of these exceptions that individual will not qualify for a restricted license under this section. It is most important to note that this section is only applicable to individuals arrested for such violations of Michigan Law on or after January 1, 2011. [xxviii] It is apparent that these exceptions are wide reaching and this new legislation has altered the legal landscape surrounding convictions and subsequent license sanctions incurred by offenders. With this new law it appears that Michigan law makers have accomplished several things. First, the license sanctions for super drunk drivers and repeat offenders have been brought into a sort of parity where both have a 45 day hard suspension followed by 320 days of restricted driving but only with a BAIID. Secondly, there is an apparent public policy stance in favor of sobriety court, with driving privileges being part of the “carrot” to encourage sobriety; and finally, to give back to the courts some control and authority over the driver license sanctions. It will be interesting to see if this law actually encourages more courts to implement sobriety courts or if it will simply create two classes of offenders who are dependant wholly on the jurisdiction in which the offense occurs, that is, those offenders who end up with more severe driver license sanctions and those with less severe sanctions.
[i] The sections that of 257.625 that were amended include 219, 303, 319, 625n, 626, 732a, and 904d.
[ii] § 257.304
[iii] MCL 257.304(1)(a) and (b)
[iv] MCL 257.304(1)(b)
[v] MCL 257.304(2)(a) and (b)
[vi] MCL 257.304(4)(a)-(d)
[vii] MCL 257.304(4)
[viii] MCL 257.304(5)
[ix] MCL 257.304(5)(a) and (b)
[x] MCL 257.304(6)
[xi] MCL 257.304(6)(a)
[xii] MCL 257.304(6)(b)
[xiii] MCL 257.304(7)(a)(i)-(iii)
[xiv] MCL 257.304(7)(b)
[xv][xv] MCL 257.304(7)(c)
[xvi] MCL 257.304(8)(a)
[xvii] MCL 257.304(8)(b)
[xviii] MCL 257.304(9)(a)(b)
[xix] MCL 257.304(3)(a)-(n)
[xx] § 303(1)(i)(l) under 321 (a) or for a violation of MCL 257.624a, MCL 257.624b, § 33b(1) of former 1933 (Ex Sess) PA 8, section 703(1) of the Michigan Liquor Control Code, or MCL 436.1703
[xxi] §303(2)(c)(i) or (iii); and 303(2)(g)(i) or (iii)
[xxiv] § 319(4)
[xxv] §319(5) (6), (7) (8.A, C) and (9).
This includes violations of the following statutes: MCL 750.414[xxv]; MCL 257.624a, 624b, 625, 625m, MCL 750.367c, §703(1) of the Michigan Liquor Control Code, § 319e(2), Title II of the comprehensive drug abuse prevention and control act of 1970.
[xxvi] § 320(1)(d); §904 (10); §3177 of the Insurance code of 1956, 1956 PA 218, MCL 500.3177
[xxvii] §625f(1) (a); §323c(1)(2);§323c (3)