Michigan Motor Vehicle Code Section 625(1)(b) (MCL 257.625(1)(b)): Operating with an Unlawful Bodily Alcohol Content

1. Definition and Elements of the Crime

MCL 257.625(1)(b) sets the familiar “.08” blood alcohol limit. In other words, it’s illegal to drive with a bodily alcohol content of 0.08 grams or more per 100 milliliters of blood or 210 liters of breath. (The law also provides that your urine can be tested, but, in practice, breath and blood tests are far more common.) Roughly 30,000 people are arrested for “operating while intoxicated” (commonly called “driving under the influence” or “DUI”) every year in Michigan. And in most cases, the prosecution will try to rely on a breath or blood test to prove the charge.

There are three elements to operating with an unlawful bodily alcohol content, 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 operated the vehicle with a bodily alcohol level of 0.08 grams or per 100 milliliters of blood, 210 liters of breath, or 67 milliliters of urine.

The 0.08 limit is a “per se” rule, meaning that it doesn’t matter if you didn’t feel “under the influence.” Whether you have a high tolerance or a low tolerance, if your bodily alcohol content was above the limit, you’re on the hook for operating while intoxicated.

In most drunk driving cases, the police will administer a roadside “preliminary breath test” (PBT) to gauge your bodily alcohol content. Police officers can use the PBT to decide whether to arrest you for drunk driving, but the PBT is not ordinarily admissible in court. Instead, after the police arrest you, they will take you back to the police station to administer an “evidential breath test”—the Datamaster, colloquially called the “breathalyzer.” The Datamaster is more accurate than the PBT, and the result is ordinarily admissible in court.

2. Examples

A woman has several drinks at a bar. She gets in her car and starts for home. A few miles down the road, a police officer pulls her over for running a stop sign. When the officer makes contact with her, he smells alcohol on her breath, and she slurs her words. She admits to having several drinks at the bar. The officer arrests her for drunk driving. At the police station, her Datamaster test result is 0.16, twice the legal limit.

A police officer pulls a man over for speeding. He admits to having a “couple” drinks earlier in the night. The officer has the man do some field sobriety tests. His performance is middling. The officer then administers the PBT, which shows a result of 0.09. The officer arrests the man. At the police station, the Datamaster result is 0.10.

3. Related Offenses

Other similar or related offenses include:

1. Operating under the influence, MCL 257.625(1)(a)
2. Operating with the presence of a schedule 1 controlled substance, MCL 257.625(8)
3. Operating while visibly impaired, MCL 257.625(3)

4. Defenses to Operating with an Unlawful Bodily Alcohol Content

Common defenses to operating with an unlawful bodily alcohol content are (1) challenging the test result and (2) improper search or seizure.

Take the woman arrested for running a stop sign. Seems like an open and shut case, right? But suppose dashcam video shows that the woman never ran the stop sign, the reason the police officer stopped her in the first place. This implicates the Fourth Amendment of the United States Constitution, which prohibits unreasonable searches and seizures. Under the Fourth Amendment, a police officer cannot pull a car over without probable cause that the driver committed a crime or traffic violation. Here, with video proving that the woman didn’t run the stop sign, the police officer never had probable cause to pull her over. So the charge against her will be dismissed even though she was twice the legal limit.

Now take the man who blew 0.10, another case that seems straightforward at first blush. But let’s add one detail. After the police officer arrested the man and took him to the police station, he was left unattended for several minutes before taking the Datamaster test. One of the rules for administering the Datamaster is that the suspect must be observed continuously for 15 minutes beforehand to ensure that he doesn’t regurgitate or put anything in his mouth, which would compromise the accuracy of the test. When the rule is violated and the accuracy of the test is in question, the result is inadmissible in court. Here, with the observation period interrupted for several minutes, a court would likely find the violation of the 15-minute rule substantial enough to render the result inadmissible. So the prosecution could not try the man under a per se theory (although the prosecution could try to allege that the man was otherwise under the influence or impaired, although either theory would likely be a tough row to hoe for the prosecution).

5. Penalties

Operating with an unlawful bodily alcohol content 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 with an unlawful bodily alcohol content 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 with an unlawful bodily alcohol content 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.

6. Criminal Defense for Operating with an Unlawful Bodily Alcohol Content

Prosecutors often see operating with an unlawful bodily alcohol content cases as layups. With a breath or blood test result, how can they lose? To defend an operating with an unlawful bodily alcohol content case, you need a defense attorney who’s not afraid to challenge the test and the police. If you’re under investigation for or have been charged with operating with an unlawful bodily alcohol content, 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 with an unlawful bodily alcohol content and to talk about your case, contact Grabel & Associates at (800) 342-7896.