Michigan Motor Vehicle Code Section 625(5) (MCL 257.625(5)): Operating While Intoxicated Causing Serious Impairment of a Body Function

1. Definition and Elements of the Crime

If you commit operating while intoxicated (OWI) and injure another person, you could be on the hook for “operating while intoxicated causing serious impairment of a body function.” As the name implies, the injuries to the other person must be severe. For example, loss of a limb or organ qualifies under the law. OWI causing serious impairment is a felony, and a prison sentence is always a possibility.

There are five elements to OWI causing serious impairment, all of which the prosecution must prove beyond a reasonable doubt:

1. First, the defendant operated a motor vehicle. Operate means to drive or have actual physical control of the vehicle.
2. Second, the defendant operated the vehicle on a highway or other place open to the public or generally accessible to motor vehicles, including a designated parking area.
3. Third, the defendant was intoxicated or impaired by alcohol, a controlled substance, or an intoxicating substance, meaning:
   1. The defendant had a bodily alcohol level of 0.08 grams or more per 100 milliliters of blood, 210 liters of breath, or 67 milliliters of urine;
   2. The defendant was under the influence of alcohol;
   3. The defendant was under the influence of a controlled substance;
   4. The defendant was under the influence of an intoxicating substance;
   5. Due to the drinking of alcohol or use or consumption of a controlled substance or use or consumption of an intoxicating substance, the defendant drove with less ability than would an ordinary careful driver.
   6. The defendant had in his or her body any amount of a schedule 1 controlled substance or cocaine.
4. Fourth, the defendant voluntarily decided to drive knowing that he or she had consumed alcohol or a controlled substance or an intoxicating substance and might be intoxicated.
5. Fifth, the defendant’s operation of the vehicle caused a serious impairment of a body function to the victim.

What counts as serious impairment of a body function? The law gives the following list of examples:

• Loss of a limb or loss of use of a limb.
• Loss of a foot, hand, finger, or thumb or loss of use of a foot, hand, finger, or thumb.
• Loss of an eye or ear or loss of use of an eye or ear.
• Loss or substantial impairment of a bodily function.
• Serious visible disfigurement.
• A comatose state that lasts for more than 3 days.
• Measurable brain or mental impairment.
• A skull fracture or other serious bone fracture.
• Subdural hemorrhage or subdural hematoma.
• Loss of an organ.

This list is illustrative, not exhaustive. Every prosecutor has a different strike zone for charging OWI causing serious impairment. But, ultimately, a jury makes the final call on whether an injury is severe enough.

2. Examples

A woman driving home after having a few drinks at a dinner party runs a red light and T-bones another car. The driver of the other car suffers a fractured hand, but otherwise he is all right. Police officers who arrive on the scene notice that the woman is slurring her speech and unsteady on her feet. A breath test reveals a bodily alcohol content of 0.10. The local prosecutor charges the woman with OWI causing serious impairment.

A man driving home after having several drinks at a bar crosses the center line and hits an oncoming car. The driver of the other car is severely injured, as is the man; both are taken the hospital. Miraculously, both survive. Shortly after the accident, police obtain a search warrant for the man’s blood. A subsequent blood test shows a bodily alcohol content of 0.25.

3. Related Offenses

Other similar or related offenses include:

1. Operating while intoxicated causing death, MCL 257.625(4)
2. Operating with an unlawful bodily alcohol content, MCL 257.625(1)(b)
3. Operating with a high BAC, MCL 257.625(1)(c)

4. Defenses to Operating While Intoxicated Causing Serious Impairment of a Body Function

Two common defenses in OWI causing serious impairment are (1) lack of serious impairment, and (2) search and seizure violations.

Take the man who crossed the centerline on his way home from the bar. Suppose that in the application for the search warrant to draw the man’s blood, the police officer had simply written that the man had been involved in a serious accident. This implicates the probable-cause requirement for issuance of a warrant under the Fourth Amendment. If the allegations in a warrant application don’t provide probable cause (reason to believe) that the person committed the alleged crime, the warrant is invalid. Here, that the driver had been in a serious accident, by itself, does not establish probable cause to believe that the man was intoxicated. Car accidents occur for many reasons that don’t involve drunk driving. So the blood test result will be inadmissible, which could force the prosecutor to dismiss the case.

Now consider the woman who ran the red light. The question here is whether the fractured hand constitutes serious impairment of a body function. The law says that a skull fracture or other serious bone fracture counts as serious impairment of a body function. Is a hand fracture a serious bone fracture? The prosecutor thinks so, but a capable defense attorney should be able to persuade a judge or a jury otherwise. Compared against a skull fracture or other injuries such as loss of a limb or organ, a fractured hand should not—under ordinary circumstances—rise to the level of serious impairment.

5. Penalties

OWI causing serious impairment is a felony punishable by up to 5 years in prison and a fine of up to $5,000. If the driver’s bodily alcohol content was 0.17 or above, the offense is punishable by up to 10 years in prison.

6. Criminal Defense for Operating While Intoxicated Causing Serious Impairment of a Body Function

If you’re charged with operating while intoxicated causing serious impairment, don’t expect leniency. When a victim is severely injured, prosecutors often want to exact as much punishment as possible. Prison time is on the table even if you don’t have any prior offenses. You need an aggressive and experienced criminal defense attorney on your side.

For more information about OWI causing serious impairment and to talk about your case, contact Grabel & Associates at (800) 342-7896.

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