Charged Under Michigan’s High BAC “Super Drunk” Law?
Michigan’s high BAC law, commonly called the “Super Drunk” law, applies when a person is accused of operating while intoxicated with a bodily alcohol content of .17 or higher. It is still an OWI offense under MCL 257.625, but it carries consequences that are more severe than an ordinary first-offense OWI. I often see clients focus immediately on the number, especially when the breath ticket or police report says .17, .18, .20, or higher. That number matters, but it is not the entire case. A high BAC charge must be evaluated legally, scientifically, and practically before anyone decides whether to contest the charge, negotiate a reduction, or enter a plea.
The potential penalties for a first-offense high BAC conviction include up to 180 days in jail, a fine of $200 to $700, up to 360 hours of community service, six points on the driving record, and a one-year driver’s license suspension. The license sanction is one of the most important differences between ordinary OWI and high BAC. A person convicted of high BAC may become eligible for a restricted license after 45 days, but only if an ignition interlock device is installed on every vehicle the person owns or intends to operate. That restricted-license opportunity may sound helpful, but it also places the person into a more demanding administrative framework.
In my practice, I treat the restricted-license provision carefully. A high BAC conviction can place the driver under the jurisdiction of the Administrative Hearings Section, formerly known as the DLAD. That matters because the person is no longer simply waiting out a short suspension and paying a reinstatement fee. The driver must comply with ignition interlock requirements and may face additional administrative consequences if the device records violations or if the person operates a vehicle without a properly installed interlock. Whenever possible, avoiding that administrative supervision may become an important part of the defense strategy.
The ignition interlock requirement can affect daily life in ways that are not always obvious at the beginning of the case. A person may drive a family vehicle, a work vehicle, a borrowed vehicle, or a vehicle titled in someone else’s name. The high BAC restricted-license rule requires careful attention to the phrase “owns or intends to operate.” A driver who misunderstands that rule can create new legal problems even after the court case appears to be resolved. Operating without a properly installed ignition interlock device can also create additional consequences, including possible metal license plate confiscation and mandatory vehicle immobilization following a later conviction.
For many people, the most urgent questions are practical. Will I go to jail? Will I lose my license? Can I drive to work? Will this affect my employment? Will my insurance go up? Those questions are reasonable, but they cannot be answered responsibly without reviewing the evidence. A high BAC charge may be based on a breath test, a blood test, or both. It may involve a traffic stop for speeding, weaving, lane use, an accident, or a citizen call. It may include field sobriety testing, a preliminary breath test at the roadside, an evidentiary breath test at the police station, or a blood draw after a warrant or consent. Each step can matter.
A high breath result should not be accepted uncritically. Breath alcohol testing estimates alcohol concentration indirectly. The breath machine does not directly measure alcohol in the blood. It measures alcohol in a breath sample and then uses assumptions to estimate the corresponding blood alcohol level. Those assumptions may be reasonable in many cases, but they are not perfect in every case. Some people may produce breath results that appear higher than their actual blood alcohol concentration. I have written separately about false high blows and breath to blood conversion factors because these scientific issues can matter in a high BAC case.
The breath-to-blood conversion issue is especially important in a high BAC prosecution because the difference between ordinary OWI and high BAC may depend on a narrow margin. A person with a reported breath alcohol result of .17 is not merely being accused of being over .08. The prosecutor is alleging a higher statutory category. If the true alcohol concentration is lower than the breath result suggests, the high BAC allegation may be open to challenge. That does not mean every high breath result is wrong. It means the number must be evaluated in context, including the testing sequence, the observation period, the subject’s physiology, the maintenance records, and the officer’s compliance with testing procedures.
Another issue that may affect breath alcohol testing is gastroesophageal reflux disease, commonly known as GERD. GERD can become important when the defense is evaluating whether a breath test result accurately reflects alcohol in the blood or whether the breath sample may have been affected by alcohol from the mouth, throat, or upper digestive tract. Breath alcohol instruments are designed to test deep lung breath. If alcohol from reflux, regurgitation, belching, or other upper digestive processes contaminates the breath sample, the reported number may not reliably represent blood alcohol. I have discussed GERD-related trial results here and here.
GERD is not a magic word that defeats a breath test. It must be supported by facts. The defense should look at the person’s medical history, symptoms, timing of alcohol consumption, timing of the stop, timing of the breath test, whether the officer observed the person continuously before testing, whether the person burped or complained of reflux, and whether the breath test pattern is consistent with a contamination issue. The defense must also consider whether the case involves a blood test, because a properly obtained and properly analyzed blood test raises different scientific questions than a breath test.
GERD has also been discussed in the peer reviewed literature. A.W. Jones, one of the leading scholars in breath alcohol science, has reported data suggesting that GERD may help explain some of the problems scientists have encountered with the breath-to-blood conversion factor. That is why a high BAC case should not be reduced to a single printed number. Breath alcohol science requires attention to sampling, physiology, timing, and instrument assumptions.
The legal defense begins before the breath test. The first question is often whether the police lawfully stopped the vehicle. If the officer claims speeding, lane use, weaving, equipment violations, or erratic driving, the video should be reviewed carefully. Police reports frequently summarize driving behavior in broad terms. Video may confirm the report, weaken it, or show a more complicated picture. If the stop was not lawful, evidence obtained after the stop may be subject to challenge through a motion to suppress.
The next question is whether the officer had a lawful basis to expand the investigation into an OWI investigation. Odor of alcohol, admission to drinking, bloodshot eyes, slurred speech, poor driving, and field sobriety performance are commonly cited. Each item should be examined carefully. Odor does not establish a specific alcohol level. Bloodshot eyes may have many causes. Slurred speech may or may not appear on video. Field sobriety tests must be administered and interpreted correctly to carry meaningful weight. A high BAC charge does not excuse the prosecution from proving that each stage of the investigation was lawful and reliable.
Field sobriety testing deserves special scrutiny in high BAC cases. The officer may rely on the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test. These tests are often presented as standardized, but their value depends on proper administration. The instructions, demonstrations, test surface, footwear, lighting, weather, medical conditions, age, weight, fatigue, nervousness, and officer scoring can all affect the result. A person may perform poorly for reasons unrelated to alcohol. A person may also perform better on video than the written report suggests. For that reason, I prefer to evaluate the actual video whenever possible.
The chemical test procedure must also be reviewed. In a breath case, the defense should examine whether the operator followed the required observation period, whether the instrument was functioning properly, whether the test sequence was acceptable, whether duplicate samples were sufficiently close, and whether any error messages or irregularities appeared. In a blood case, the defense should review the warrant or consent issue, the blood draw procedure, chain of custody, laboratory method, reported uncertainty, and whether the toxicology evidence proves the charged alcohol level at the legally relevant time.
Timing can become a significant issue. Alcohol concentration changes over time as the body absorbs and eliminates alcohol. A person’s alcohol level at the time of the test may not be identical to the person’s alcohol level at the time of driving. In some cases, the prosecution’s theory depends on an assumption that the test result accurately reflects the person’s condition during operation. In other cases, the defense may examine whether the person was still absorbing alcohol, whether the test occurred substantially later, or whether the reported number is being used more broadly than the science permits.
A high BAC plea can also affect negotiation strategy. In some cases, the most important goal may be reducing the charge from high BAC to ordinary OWI or impaired driving, depending on the facts, the jurisdiction, the prosecutor, and the evidence. That type of reduction may affect jail exposure, license consequences, ignition interlock requirements, and administrative supervision. No reduction is automatic, and no lawyer can promise that a prosecutor or judge will accept a particular resolution. But the possibility should be evaluated before a person simply pleads guilty to the charge as written.
The practical consequences extend beyond court. A high BAC conviction can affect employment, professional licensing, insurance rates, family responsibilities, and transportation. For clients who drive for work, hold a commercial driver’s license, travel between job sites, or work in regulated professions, the collateral consequences may be more damaging than the fine. The court may also impose probation, alcohol testing, counseling, treatment, community service, and abstinence conditions. A person who fails to comply with those conditions may face probation violation proceedings and additional penalties.
Early action is important. Video can be lost. Witness memories fade. Breath test records, blood records, dispatch audio, booking video, and patrol car footage should be requested promptly. In some cases, Freedom of Information Act requests or subpoenas may be necessary. In other cases, formal discovery through the court process may be enough. The point is that a high BAC case should not sit untouched while the defense waits for the next court date. The strongest defense is usually built by gathering the evidence early and comparing the police narrative to the actual record.
When I evaluate a high BAC case, I do not assume that the number on the ticket tells the whole story. I look at the stop, the officer’s observations, the field sobriety testing, the timing, the breath or blood procedure, the person’s medical history, and the legal consequences of each possible outcome. Sometimes the evidence supports negotiation. Sometimes it supports a motion. Sometimes it supports trial. The proper strategy depends on the facts.
Michigan’s high BAC law creates serious penalties and complicated license consequences, but a charge is not the same as a conviction. Before entering a plea, a person charged under the Super Drunk law should understand the difference between ordinary OWI and high BAC, the ignition interlock consequences, the role of the Administrative Hearings Section, and the scientific issues that may affect breath alcohol testing. The number is important. The context is equally important. A careful review of both is essential.
