A loophole in Super Drunk Driving legislation in Michigan is about to be closed. Cities and townships charging individuals under ordinance violations have been prohibited from charging anyone with a criminal offense carrying more than 93 days in jail as a punishment. The Super Drunk Driving law, previously passed by the Michigan Legislature, carried a maximum punishment of six months, and thus could not be charged as an ordinance violation. Local city and township attorneys could still have elected to turn the matter over to county prosecuting officials, so that an individual with a BAC of .17 or higher could still be charged under the Super Drunk Driving legislation; however, they were often reluctant to do so because this would mean giving up fines and costs, a high percentage of which would end up in the coffers of the local jurisdictions. Thus, defendants lucky enough to be charged as ordinance violators, until now, have been able to avoid the more draconian punishment associated with the Super Drunk Driving legislation, including a year-long suspension with a restricted license only available for 10 ½ months and only with the placement of an ignition interlock device.
Hopefully, city and township prosecutors will still consider reductions from High BAC offenses to traditional OWI charges or Impaired Driving (a lesser offense) for some High BAC offenders. Indeed, prosecuting attorneys in Clinton County and Eaton County, though having the authority under the previous Super Drunk Driving legislation to issue High BAC charges, have frequently elected not to do so. Anecdotally, it has been the experience of our office that most people arrested for a drinking and driving offense have BACs between .13 and .20; thus, placing many of them within range of being charged under the Super Drunk Driving legislation.
