I have obtained a number of dismissals in recent months for violations of the right to a speedy trial. Rather than walk through each case one by one, it may be more helpful to discuss the statute of limitations in Michigan DUI cases, how the SOL applies, and the important differences between the statute of limitations, a speedy trial violation, and pre-arrest delays.
Long delays are common in Michigan drunk driving prosecutions. That is especially true when the prosecutor must wait for a blood test result from the Michigan State Police Toxicology Unit. Although the state lab has improved its turnaround time considerably, weeks may pass before a blood sample even arrives for analysis. Alcohol testing generally takes at least a week, and testing for other substances can take longer. During that time, officers move on to other cases and fail to monitor the status of the laboratory results closely.
Once the test results are finally returned, the case may still sit. An officer may view the filing of paperwork in a non-urgent case as something that can wait, and the matter is pushed aside. The urgency may have dissipated for law enforcement, but not for the accused. The person accused may be left driving on a temporary license and enduring significant, sometimes immeasurable, harm from the collateral consequences that accompany nothing more than an allegation of drunk driving. This is the heart of a speedy trial violation, but it has little to do with pre-arrest delays or the statute of limitations.
THE STATUTE OF LIMITATIONS IN MICHIGAN DRUNK DRIVING CASES: 6 YEARS
The statute of limitations governs the outer time limit within which the prosecutor may file charges. For misdemeanor and felony OWI offenses, no specific limitations period is enumerated in MCL 767.24. Accordingly, the catchall provision controls. MCL 767.24(10) provides: "All other indictments may be found and filed within 6 years after the offense is committed." The Court of Appeals confirmed this framework in People v Wade. As the Court explained, "MCL 767.24 specifies the time frames in which indictments must be filed," and "MCL 767.2 provides that MCL 767.24's use of the term 'indictment' applies equally to prosecutions commenced by filing an information." People v Wade, ___ Mich App ___ (2025). For offenses not enumerated by name, "[t]he only plausible reading of MCL 767.24 is that [the offense] is subject to the catchall limitations period in MCL 767.24(10)." Wade, ___ Mich App at ___.
The limitations period is tolled during any time the accused does not "usually and publicly reside" in Michigan. MCL 767.24(11). As the Court of Appeals held in People v Kasben, 324 Mich App 1, 10 (2018), the tolling provision is "all-encompassing, indicating that any period during which a defendant did not reside in Michigan could not be considered when calculating the time within which charges must be found and filed." Absent tolling, a Michigan prosecutor has six years from the date of the offense to commence a drunk driving prosecution. That is a long window.
THE SPEEDY TRIAL CLOCK BEGINS AT ARREST: 18 MONTHS
The Sixth Amendment to the United States Constitution and Article 1, Section 20 of the Michigan Constitution both guarantee the right to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20. MCL 768.1 codifies the right and imposes on public officers a duty "to bring such case to a final determination without delay except as may be necessary to secure to the accused a fair and impartial trial." The court rule is equally direct. "Whenever the defendant's constitutional right to a speedy trial is violated, the defendant is entitled to dismissal of the charge with prejudice." MCR 6.004(A).
The Michigan Supreme Court has been emphatic about when the clock starts. In People v Williams, 475 Mich 245, 261 (2006), the Court held: "The time for judging whether the right to a speedy trial has been violated runs from the date of the defendant's arrest." The Court of Appeals reaffirmed that rule in 2024 in People v Smith. As the Court reiterated, "The time for judging whether the right to a speedy trial has been violated runs from the date of the defendant's arrest." People v Smith, ___ Mich App ___ (2024).
This rule has decisive consequences for warrantless arrests. When an officer takes a suspected drunk driver into custody at the roadside on suspicion of OWI, files a written report, transmits the arrest to the Law Enforcement Information Network, and confiscates the driver's license under MCL 257.625g, the prosecution has begun. The Sixth Amendment attaches even if the prosecutor has not yet authorized a complaint, and even if no warrant has issued. The United States Supreme Court explained the rationale in United States v Marion, 404 US 307 (1971). "Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." Marion, 404 US at 320. That description was reaffirmed in Dillingham v United States, 423 US 64 (1975), where a 22-month delay between warrantless arrest and indictment was held to count toward the speedy trial calculation.
THE BARKER v WINGO BALANCING TEST
A speedy trial claim is not adjudicated by counting days alone. Michigan courts apply the four-factor balancing test established in Barker v Wingo, 407 US 514 (1972). The factors are the length of the delay, the reason for the delay, the defendant's assertion of the right, and the prejudice to the defendant. As the Court of Appeals reiterated in 2024, "A defendant's right to a speedy trial is not violated after a fixed number of days." People v Smith, ___ Mich App ___ (2024). "Rather, when evaluating a speedy-trial claim, the reviewing court is required to balance four factors: (1) the length of delay, (2) the reason for delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant." Smith, ___ Mich App at ___. No single factor is dispositive.
With respect to the length of the delay, "[w]here there has been a delay of at least six months after a defendant's arrest, further investigation into a claim of denial of the right to a speedy trial is necessary." People v Daniel, 207 Mich App 47, 51 (1994). With respect to the reason for the delay, "[w]here a delay is unexplained, it is charged to the prosecution." People v Ross, 145 Mich App 483, 491 (1985). Court congestion is technically attributable to the prosecution but is given a neutral tint and assigned only minimal weight. Smith, ___ Mich App at ___. Pandemic delay has likewise been treated as neutral or non-attributable where the record establishes that public health measures actually disrupted court operations, but a bare invocation of "COVID" or "court congestion," unsupported by any record evidence and untethered to the relevant time period, will not justify multi-year inaction.
With respect to assertion of the right, the defendant must "make a formal demand for a speedy trial on the record" to preserve the issue. People v Cain, 238 Mich App 95, 111 (1999). A guilty plea, or a plea of nolo contendere, generally waives the right on appeal. People v Scott, 275 Mich App 521, 524 (2007); People v New, 427 Mich 482, 493 (1986). With respect to prejudice, the analysis is multifaceted, and is the subject of a separate section below.
THE 18 MONTH PRESUMPTION OF PREJUDICE
Michigan presumes that delay of 18 months or more is prejudicial and shifts the burden to the prosecution to disprove injury. As the Court of Appeals recently restated the rule in Smith, "Following a delay of eighteen months or more, prejudice is presumed, and the burden shifts to the prosecution to show that there was no injury." People v Smith, ___ Mich App ___ (2024). The same 18-month presumption was confirmed in People v Rivera, 301 Mich App 188 (2013). "When the delay is more than 18 months, prejudice is presumed, and the prosecution must show no injury occurred. When the delay is less than 18 months, the defendant must prove that he suffered prejudice." Rivera, 301 Mich App at 193. Where the delay is less than 18 months, the defendant bears the burden of demonstrating actual prejudice. People v Holtzer, 255 Mich App 478, 492 (2003).
Michigan's 18 month threshold is generous to the State by national standards. California requires a misdemeanor trial to commence within 45 days of arraignment, or within 30 days if the defendant is in custody. Cal Penal Code § 1382. Ohio applies a 45/90 day rule. Ohio Rev Code § 2945.71. Illinois sets a 160 day limit. 725 ILCS 5/103-5. Eighteen months is roughly three to twelve times longer than the period that other states find tolerable for misdemeanor offenses. When the prosecution cannot meet even Michigan's lenient timeline, the failure carries weight under the Barker analysis.
PREJUDICE IS NOT LIMITED TO LOST EVIDENCE
A common error in lower courts is the assumption that prejudice means only lost exculpatory evidence. That conception is too narrow. The Sixth Amendment also protects the personal and liberty interests that attach the moment a person is publicly accused. The Court of Appeals has identified "two types of prejudice which a defendant may experience, that is, prejudice to his person and prejudice to his defense." People v Smith, ___ Mich App ___ (2024). Impairment of defense is the most serious form of prejudice "because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Smith, ___ Mich App at ___. But prejudice to the person is independently cognizable, and it is precisely the kind of harm that flows from a public OWI accusation that lingers for years.
The United States Supreme Court explained in Marion that the speedy trial right serves "to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." United States v Marion, 404 US 307, 320 (1971). All three interests appear in OWI cases.
The unique mechanics of the Michigan 625G permit magnify the personal prejudice. Upon a warrantless OWI arrest involving a chemical test or a refusal, the arresting officer is required to confiscate the driver's license, issue a temporary paper permit, and report the event to LEIN. MCL 257.625g(1). The 625G permit cannot be appealed. It functions as a public flag, transmitted statewide, nationally, and to Canadian border officials. The permit remains in effect, by statute, "[i]f the case is prosecuted, until the criminal charges against the person are dismissed, the person is acquitted of those charges, or the person's license or permit is suspended, restricted, or revoked." MCL 257.625g(3)(b). If the case is not prosecuted, the agency or prosecutor must notify the Secretary of State, and the LEIN entries may be cleared. MCL 257.625g(3)(a). But while the case lingers, the accused remains publicly branded.
Concrete consequences flow from that status. Canada treats unresolved DUI charges as grounds for criminal inadmissibility. Concealed pistol license eligibility is suspended automatically upon issuance of the 625G permit. Employers conducting routine background checks see the LEIN entry. Travel, professional licensing, and family planning are all disrupted. Each of these is a restraint on liberty within the meaning of United States v Loud Hawk, 474 US 302, 311 (1986), and each survives independent of whether physical evidence has been preserved or lost. A court that focuses solely on whether the blood sample still exists at the Michigan State Police lab applies an erroneously narrow conception of prejudice that conflates the Fifth Amendment due process inquiry with the Sixth Amendment speedy trial inquiry.
Loss of physical evidence does still matter, of course. As the Court of Appeals observed in Smith, "If witnesses die or disappear during a delay, the prejudice is obvious," and "[l]oss of memory caused by the passage of time can also prejudice the defense." People v Smith, ___ Mich App ___ (2024). In OWI cases, the prosecution's failure to preserve and produce a sealed second blood sample for independent testing, or to document the chain of custody and chemical preservation across years of inaction, raises legally cognizable prejudice. See People v Nuss, 405 Mich 437 (1979). But evidentiary degradation is one form of prejudice, not the only form.
PRE-ARREST DELAY IS A DIFFERENT DOCTRINE
Let's say that you were not arrested by the police for drunk driving. Following an accident, your blood might be analyzed by the hospital, revealing a high blood alcohol test result, or perhaps the police simply asked you to submit to a blood test following an accident. Those were the facts in People v Borchard-Ruhland, 460 Mich 278 (1999) (police asked permission to draw blood without arrest and without invoking Michigan's implied consent penalties). If the temporary driver's license is not issued, the police and prosecution might be able to file criminal charges after the 18-month speedy trial has already lapsed because those delays are simply "pre-arrest" delays. These charges must be filed within the statute of limitations, but speedy trial rights are not triggered.
The Sixth Amendment speedy trial right does not protect against pre-arrest investigative delay. Where the State has not yet arrested or charged the suspect, the protection comes from the Fifth Amendment Due Process Clause and the statute of limitations. United States v Lovasco, 431 US 783, 788 (1977); People v Cain, 238 Mich App 95, 109 (1999). Pre-arrest delay can require dismissal only where the defendant first proves actual and substantial prejudice, after which the prosecution must justify the delay. People v Adams, 232 Mich App 128, 134 (1998); People v Bisard, 114 Mich App 784, 791 (1982).
The Court of Appeals in People v Patton, 285 Mich App 229 (2009), made the distinction explicit. The Court held that the speedy trial clock "runs from the date of the defendant's arrest," not from the filing of a complaint or the issuance of a warrant. Patton, 285 Mich App at 236. The implication for OWI cases is significant. A defendant arrested without a warrant at the roadside has Sixth Amendment protection that begins immediately. A defendant who is not arrested but later named in a complaint and warrant has only Fifth Amendment due process protection until the warrant is served. The two doctrines apply different burdens, different standards, and different remedies. Confusing the two is one of the most common errors in OWI litigation, and one of the most consequential.
