Michigan's Criminal Charge of "Serious Impairment of a Body Function"
The offense of operating while intoxicated causing serious impairment of a body function, codified at MCL 257.625(5), occupies a distinctive place in Michigan's intoxicated driving statutes. It transforms what would otherwise be a misdemeanor into a felony, not because of any heightened culpability on the driver's part, but because of the consequences flowing from the operation of the motor vehicle. Although prosecutors often present the charge as straightforward, the elements, the causation analysis, and the constitutional protections governing the gathering of evidence each present significant litigation questions that defense counsel and prosecutors should understand long before disposition or trial.
Statutory Framework
The governing statute provides that "[a] person, whether licensed or not, who operates a motor vehicle in violation of [MCL 257.625(1), MCL 257.625(3), or MCL 257.625(8)] and by the operation of that motor vehicle causes a serious impairment of a body function of another person is guilty of a crime[.]" MCL 257.625(5). The statute creates a hybrid offense. The underlying intoxicated driving conduct must satisfy one of three predicate offenses, namely operating while intoxicated under MCL 257.625(1), operating while visibly impaired under MCL 257.625(3), or operating with any amount of a Schedule 1 controlled substance or cocaine under Schedule 2 in the body under MCL 257.625(8). The operation of the motor vehicle must then cause a qualifying injury to another person.
The Elements of the Offense
To secure a conviction under MCL 257.625(5), the prosecution must establish the elements of the underlying intoxicated driving offense and the additional element that the operation of the motor vehicle caused a serious impairment of a body function to another person. The elements of OWI itself were synthesized by the Michigan Court of Appeals in People v Hyde, which explained that "OWI requires proof of three elements: (1) the defendant operated a motor vehicle (2) on a highway or other place open to the general public or generally accessible to motor vehicles (3) while under the influence of liquor or a controlled substance, or a combination of the two, or with [an unlawful bodily alcohol content]." People v Hyde, 285 Mich App 428, 447-448 (2009). The Court further noted that the third element is disjunctive and may be satisfied either by intoxication or by an unlawful bodily alcohol content. Id.
The Michigan Supreme Court has clarified that the location element "prohibits operating a vehicle while intoxicated in three types of locations: (1) upon a highway, (2) in a place open to the general public, or (3) in a place generally accessible to motor vehicles." People v Rea, 500 Mich 422, 428 (2017).
Defining "Serious Impairment of a Body Function"
The Michigan Vehicle Code defines serious impairment of a body function nonexhaustively at MCL 257.58c. The statute lists ten categories of qualifying injury. Those include loss of a limb or loss of use of a limb, loss of a foot, hand, finger, or thumb, or loss of use thereof, loss of an eye or ear or loss of use thereof, loss or substantial impairment of a bodily function, serious visible disfigurement, a comatose state lasting more than three days, measurable brain or mental impairment, a skull fracture or other serious bone fracture, subdural hemorrhage or subdural hematoma, and loss of an organ. MCL 257.58c. The phrase "includes, but is not limited to" indicates that the list is illustrative rather than exclusive. Whether a particular injury falls within one of the enumerated categories or otherwise satisfies the statute is generally a fact question for the finder of fact.
The Causation Element
The causation element of MCL 257.625(5) is the most often misunderstood and most heavily litigated component of the offense. The Michigan Supreme Court's decision in People v Schaefer established the framework for analyzing causation under this section of the Motor Vehicle Code. The Schaefer Court held that "[MCL 257.625(4)] plainly requires that the victim's death be caused by the defendant's operation of the vehicle, not the defendant's intoxicated operation. Thus, the manner in which the defendant's intoxication affected his or her operation of the vehicle is unrelated to the causation element of the crime. The defendant's status as 'intoxicated' is a separate element of the offense used to identify the class of persons subject to liability under [Sec.] 625(4)." People v Schaefer, 473 Mich 418, 433 (2005). Although Schaefer addressed OUIL causing death, its causation analysis applies with equal force to MCL 257.625(5), which is worded almost identically and substitutes "serious impairment of a body function" for "death."
Causation under the statute requires both factual and proximate causation. The Michigan Supreme Court has explained that "Factual causation exists if a finder of fact determines that 'but for' defendant's conduct the result would not have occurred. . . . Proximate causation 'is a legal construct designed to prevent criminal liability from attaching when the result of the defendant's conduct is viewed as too remote or unnatural.'" People v Feezel, 486 Mich 184, 194-195 (2010), quoting Schaefer, 473 Mich at 436.
Proximate cause may be defeated by an intervening superseding cause. "Whether an intervening cause supersedes a defendant's conduct is a question of reasonable foreseeability." Feezel, 486 Mich at 195. The Feezel Court drew the dispositive line: "A victim's ordinary negligence is not a superseding cause that severs proximate causation because ordinary negligence is reasonably foreseeable. . . . However, a victim's gross negligence or intentional misconduct is not reasonably foreseeable and is sufficient to sever proximate causation." Id.
The doctrine has practical consequences in serious injury cases. In Feezel, the victim's extremely high blood alcohol concentration of 0.268 grams per 100 milliliters was held to be a factor the jury should have been permitted to consider on the question of proximate causation. Feezel, 486 Mich at 201-202. By contrast, in People v Bergman, the victim's "BAC of 0.054 grams per 100 milliliters, and 6.2 nanograms per milliliter of Delta-9 THC and 17 nanograms per milliliter of Delta-9 Carboxy THC in his blood stream" was held not probative of causation because there was "no evidence that [the victim] did anything that contributed to the accident in a way that would establish that he was negligent or grossly negligent and by his conduct was an intervening cause of the accident." People v Bergman, 312 Mich App 471, 486 (2015). The dividing line between Feezel and Bergman is highly fact-dependent and demands close attention to the conduct of the alleged victim and any third parties.
Penalties and Enhanced Penalties
A conviction under MCL 257.625(5) is a felony "punishable by imprisonment for not more than 5 years or a fine of not less than $1,000.00 or more than $5,000.00, or both." MCL 257.625(5)(a). The penalty doubles when the offense is committed by a person who has a prior conviction within seven years and whose alcohol concentration is 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. In that situation, the offense is punishable by imprisonment for not more than ten years. MCL 257.625(5)(b).
Although the legislative sentencing guidelines are advisory, "a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence." See, People v Lockridge. Practitioners must therefore score the offense and prior record variables and analyze whether the recommended minimum sentence range provides any avenue for departure or mitigation.
Collateral Consequences
The conviction is reportable to the Secretary of State and carries six points. License revocation and denial follow conviction, with the duration of the revocation tied to the defendant's prior driving record. Vehicle immobilization is mandatory unless forfeiture is ordered. MCL 257.625(5); MCL 257.904d(1). For a defendant with no prior convictions, mandatory immobilization extends for a period not to exceed 180 days. MCL 257.904d(1)(b). The period increases for repeat offenders, and conviction after two or more prior convictions triggers mandatory immobilization for not less than one year and not more than three years. MCL 257.904d(1)(d). Vehicle forfeiture under MCL 257.625n is also available.
Double Jeopardy and Multiple Convictions
A defendant cannot be convicted of both OWI under MCL 257.625(1) and OWI causing serious impairment of a body function under MCL 257.625(5) for a single intoxicated driving incident. The Michigan Supreme Court in People v Miller held that "defendant's convictions of both OWI[, MCL 257.625(1),] and OWI-injury[, MCL 257.625(5),] for the same intoxicated driving incident violates the multiple punishments prong of the [federal and state constitutions'] double jeopardy clauses." People v Miller, 498 Mich 13, 26 (2015). The Miller Court reasoned that the absence of statutory language authorizing multiple punishments, when contrasted with the express authorization for multiple punishments in MCL 257.625(7)(d) for OWI with a minor in the vehicle, "is a clear indication that the Legislature did not intend for defendants to be convicted of and punished for OWI and OWI-injury arising out of the same incident." Miller, 498 Mich at 25-26.
Litigation Considerations for the Defense
A serious injury OWI prosecution implicates many of the same defense theories that are available in a misdemeanor OWI case, but the stakes and the evidentiary record differ in important ways. Three areas warrant particular attention.
Probable Cause and the Validity of the Arrest. Implied consent and the constitutional reasonableness of any chemical test depend first on whether the arresting officer had probable cause to arrest. As the Michigan Court of Appeals explained, "the sine qua non to energize the statutory mandate of the 'implied consent' law is a prior valid arrest." Gallagher v Secretary of State (On Rehearing), 59 Mich App 269 (1975). Defense counsel should evaluate whether field sobriety testing was conducted in compliance with the National Highway Traffic Safety Administration protocols, whether the officer's observations supported the arrest before any chemical testing was performed, and whether any preliminary breath test result is admissible. The presence of an accident does not relieve the officer of the obligation to develop probable cause. It merely supplies a triggering circumstance for chemical testing under MCL 257.625c(1)(b).
The Blood Draw and the Warrant Requirement. The drawing of blood is a search subject to the Fourth Amendment. The United States Supreme Court has long recognized that "the taking of blood to determine alcohol content constitutes a search and seizure under the Fourth Amendment." Schmerber v California, 384 US 757, 767 (1966). The Court reaffirmed the warrant requirement in Birchfield v North Dakota, holding that although a breath test may be administered as a search incident to arrest, "a blood test[] may [not] be administered as a search incident to a lawful arrest for drunk driving," and "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Birchfield v North Dakota, 579 US 438, 476-478 (2016).
When law enforcement proceeds without a warrant, the prosecution must establish a recognized exception to the warrant requirement. If the State relies on consent, the consent must be unequivocal, specific, free of coercion and duress, and intelligently given, and the government bears the burden of showing all four prongs. People v Farrow, 461 Mich 202 (1999); see also People v Bolduc, 263 Mich App 430 (2004); People v Dagwan, 269 Mich App 338 (2005). Mere acquiescence to a claim of lawful authority is insufficient. Bumper v North Carolina, 391 US 543, 548 (1968).
The Court of Appeals held in People v Hyde that consent obtained through an inaccurate implied consent advisement is invalid, and that suppression is required even when probable cause to obtain a warrant existed. As the Court explained, "[a]lthough there was a high level of probable cause to obtain a warrant and the same evidence — Hyde's blood — would have been obtained pursuant to the eventual warrant, it is obvious that the police were not in the process of obtaining a warrant when they secured Hyde's invalid consent." Hyde, 285 Mich App at 444-445. Critically for serious injury cases, MCL 257.625c(2) provides that "[a] person who is afflicted with hemophilia, diabetes, or a condition requiring the use of an anticoagulant under the direction of a physician is not considered to have given consent to the withdrawal of blood." MCL 257.625c(2). Where such a condition is present and the officer nonetheless invokes implied consent, a resulting blood draw is constitutionally vulnerable.
Intervening or Superseding Causation. Because MCL 257.625(5) requires that the operation of the motor vehicle cause the injury, defense counsel should examine the chain of events for facts that might support an intervening cause defense. The conduct of other drivers, sudden mechanical failures of the vehicle, road conditions, and the conduct of the alleged victim are all candidates for the analysis. As discussed above, ordinary negligence will not break the causal chain, but gross negligence or intentional misconduct of the victim or a third party may. Feezel, 486 Mich at 195.
Conclusion
A charge of OWI causing serious impairment of a body function is among the most consequential charges in Michigan's intoxicated driving framework. It carries a felony conviction, substantial prison exposure, mandatory loss of driving privileges, vehicle immobilization or forfeiture, and lifelong collateral consequences. Counsel for either side should approach the case with a careful, element-by-element analysis. That includes confirming the predicate intoxicated driving offense, scrutinizing the medical and forensic evidence supporting "serious impairment of a body function," and rigorously analyzing the chain of causation. Constitutional protections governing chemical testing and arrest remain fully available, and they are often the most consequential battleground in the case. Where a thorough investigation reveals procedural shortcomings or evidentiary gaps, the consequences of conviction warrant pursuit of every available remedy.
