MCL 257.625(1)(a) makes it a crime to drive “under the influence” of alcohol, a controlled substance, or any other intoxicating substance. “Under the influence,” as it relates to alcohol, is a theory of liability separate from the more familiar “.08” per se standard. And—as shocks many clients—a person can be “under the influence” of alcohol even if they’re below the “.08” threshold.
There are three elements to operating under the influence, all of which the prosecution must prove beyond a reasonable doubt:
The law says that to be under the influence, a person does not have to be falling down or hardly able to stand up. On the other hand, just because a person has drunk alcohol, used a controlled substance, or consumed an intoxicating substance does not prove, by itself, that the person is under the influence. Instead, the test is whether the defendant’s mental or physical condition was significantly affected, and the defendant was no longer able to operate a vehicle in a normal manner.
What’s an “intoxicating substance?” The law defines it as any substance, including vapors and fumes, other than food, that was taken into the defendant’s body in any manner and used in a manner or for a purpose for which it was not intended and that may result in a condition of intoxication. A common example would be huffing glue.
A police officer pulls a man over for speeding. When the officer makes contact with the man, the man appears to be in a daze. The officer asks if the man has taken any drugs recently. The man admits that he recently took Xanax, which he has a prescription for (although the existence of a prescription is not a defense to an impaired driving charge). Believing the man’s ability to drive his car is significantly affected, the officer arrests him for operating under the influence.
After leaving a bar, a woman gets in her car and starts it. She puts the car in reverse but realizes that she’s too drunk to drive. She puts the car back in park and falls asleep behind the wheel with the car still running. A police officer happens upon the car and arrests her for operating under the influence.
Other similar or related offenses include:
Common defenses to operating under the influence are (1) lack of operation and (2) lack of impairment.
Take the man arrested for driving under the influence of Xanax. Remember, he was pulled over for speeding, not, say, swerving all over the road. If his only traffic violation was the speeding, his lack of bad driving could be evidence that his ability to drive a car was not “significantly affected.” And what evidence does the officer have that the man was in a “daze?” It is imperative to obtain any available dashcam and bodycam video in operating under the influence cases. It’s easy for a police officer to claim in a police report that a person was “under the influence.” Often, though, the video will contradict such claims. For example, a bodycam video might show that the man was talking clearly and coherently with the officer. This would undercut the “daze” allegation.
Now take the woman asleep at the wheel. Does starting a car but not moving it count as “operation?” In general, no. Courts have held that this does not satisfy the “operation” element for operating under the influence. Using your car as a shelter to “sleep it off” is not a crime. But remember that the woman put the car in reverse and then back into park. The Michigan Court of Appeals has held that these facts establish enough “actual physical control” to constitute operation. Still, in the woman’s case, did anyone see her momentarily put the car in reverse? If not, there will be insufficient evidence of operation, and the case will likely be dismissed.
Operating under the influence is a misdemeanor punishable by up to 93 days in jail, a fine of between $100 and $500, community service of up to 360 hours, and vehicle immobilization.
Penalties escalate for subsequent convictions. An operating under the influence conviction within 7 years of a prior impaired driving conviction is a misdemeanor punishable by 5 days to 1 year in jail, a fine of between $200 and $1,000, community service of between 30 and 90 days, vehicle forfeiture, and mandatory vehicle immobilization. Incarceration can be suspended only if you are sentenced to a sobriety court program.
A third operating under the influence conviction in a person’s lifetime is a felony punishable by at least 30 days in jail and up to 5 years in prison, a fine of between $500 and $5,000, community service of between 60 and 180 days, vehicle forfeiture, and mandatory vehicle immobilization. Incarceration can be suspended only if you are sentenced to a sobriety court program.
Prosecutors pursue operating under the influence charges aggressively. They have very little—if any—incentive to cut you a break. To beat an operating under the influence case, you need an equally aggressive defense. If you’re under investigation for or have been charged with operating under the influence, you need to hire a criminal defense attorney as soon as possible. Grabel & Associates has been in business for more than 20 years and has handled thousands of impaired driving cases. Our highly respected attorneys know what it takes to obtain the best result in your case.
For more information about operating under the influence and to talk about your case, contact Grabel & Associates at (800) 342-7896.