Felony Drunk Driving in Michigan: Prison for a Michigan OWI 3rd Offense?

Are you going to go to prison for 5 years for a Michigan OWI 3rd?

In many felony cases, prison is not an option unless a person violates felony probation. For a typical OWI 3rd offense in Michigan, which is a 5 year felony, a person's sentence cannot result in a prison sentence under the Michigan Sentencing Guidelines without a violation of probation. By looking to the guidelines, you can get a good idea of possible exposure to imprisonment with the Michigan Department of Corrections. For example, a typical Michigan DUI / OWI 3rd offense without an accident involving serious injuries or death carries a maximum possible penalty of 5 years in prison. This is a Class E felony, and the sentencing grid appears like this:

Sentencing Grid for Class E Offenses

The average Michigan OWI 3rd offender has no prior felony record, with two misdemeanor convictions for OWI or OWVI. By being the third offense, an OWI 3rd qualfies as a felony, but it is the person's first felony offense. (This may not be true, and prior felony convictions can dramatically increase the PRV variables and add habitual offender enhancements.) But for the typical person charged with an OWI 3rd, a quick calculation of the guidelines will result in a sentence range of 0 to 9 months in prison, up to 5 years.  This is a fictional prison sentence which calls for an "intermediate sanction." Intermediate sanction cells are those cells in which the upper limit recommended by the guidelines is 18 months or less. MCL 769.34(4)(a). These cells are marked with an asterisk in the sentencing grids. When an offender’s OV and PRV levels place him or her in an intermediate sanction cell, the court must sentence the offender to an intermediate sanction (which may include a jail term of 0-12 months or the cell maximum, whichever is less).

When a person has prior felonies, however, the guidelines might reach up into the shaded areas of the above chart. These are straddle cells. Straddle cells are those cells in which the lower limit of the recommended range is one year or less and the upper limit of the recommended range is more than 18 months. MCL 769.34(4)(c). Straddle cells appear shaded in the sentencing grids. When an offender’s OV and PRV levels place him or her in a straddle cell, a minimum sentence within the range indicated in the cell OR an intermediate sanction (which may include a jail term of not more than 12 months) is an appropriate sentence. Depending upon the court and the particular judge, a guideline range that falls within a straddle cell may result in a prison sentence.

Without a horrible prior record, it would be difficult to imagine a person exceeding a straddle cell on a Class E felony. Prison cells are those cells for which the minimum sentence recommended exceeds one year of imprisonment. Prison cells are those cells that are unmarked in the sentencing grids, i.e., not shaded (as are straddle cells) and not asterisked (as are intermediate sanction cells). When an offender’s OV and PRV levels place him or her in a prison cell, a minimum sentence within the range indicated in the cell is an appropriate sentence.  

People v Lockridge, 498 Mich 358 (2015)

IMPORTANT: In 2015, the Michigan Supreme Court held that the previously-mandatory sentencing guidelines were advisory only. See, People v Lockridge, 498 Mich 358 (2015). The Lockridge Court held that Michigan’s mandatory sentencing guidelines violate the Sixth Amendment by imposing a mandatory minimum guideline sentence. The Court held that MCL 769.34(2) could not constitutionally impose a mandatory minimum guidelines sentencing range.

In plain English: a trial court judge is not compelled to order a mandatory minimum sentence, despite the guidelines. That sounds good, right? Absolutely.

The Lockridge Court also struck down the requirement of MCL 769.34(3) that the court articulate a substantial and compelling reason to depart from the guidelines range. A sentencing court may now exercise its discretion to depart from the guidelines range without articulating substantial and compelling reasons, and a departure sentence will be reviewed on appeal for reasonableness.

Again in plain English: Trial court judges are no longer required to justify a sentence that ignores the guidelines, but the sentence must be reasonable. That doesn’t sound nearly as good, right? Correct.

The problem is that Michigan has a couple of judges who feel that the guidelines were written by soft on crime liberal hippies. These judges could not wait to be free from the guidelines, and they have been handing down prison sentences like candy. We have already seen a couple of decisions from the Court of Appeals where judges have clearly exceeded the guidelines based upon arbitrary and capricious reasons.

Sentencing courts are still required to determine the applicable guidelines range and take it into account when imposing a sentence. Guidelines scoring remains applicable, with the caveat that the calculated guidelines range is advisory rather than binding.

OWI 3rd Conviction in Michigan is a 30 Day Minimum Jail Sentence

An OWI 3rd conviction, under the statute, requires that a person convicted of OWI 3rd shall serve at least 30 days in jail. Nearly every person convicted of an OWI 3rd offense in Wayne County will serve 30 to 45 days in the county jail, and Oakland county offenders may face even more jail time.  Importantly, however, this is not prison. The maximum amount of time that a person can spend in jail is capped at 1 year. 

Can I Avoid a Felony Conviction?

For many people, being convicted of a felony is life changing. Professional licensing sanctions may require disclosure of a felony conviction, and several occupations prohibit a person from having a felony. If you work in the insurance industry, for example, a felony conviction can preclude you from working in your field. So, can you avoid a felony conviction? Maybe. 

In several jurisdictions, it is possible to reduce a Michigan OWI 3rd down to a OWI 2nd offense. This reduces the charge from a felony to a misdemeanor. Typically, in Wayne County for example, the prosecutor requires that the person agree to a jail sentence of 60 to 90 days and entry into a qualified sobriety court program. The increased jail sentence is offered in exchange for dropping the felony. 

On the other hand, however, I have had a few clients with some real tenacity and faith in my skills as a Michigan DUI lawyer, and I have beaten felony drunk driving charges at preliminary examination and at motion hearings. I have gone to trial on OWI 3rd charges and won, but after a person has racked up a few prior convictions, the prospect of going to trial is challenging for both the attorney as well as the client.