Michigan Motor Vehicle Code Section 625(1)(c) (MCL 257.625(1)(c)): Operating with a High Bodily Alcohol Content

1. Definition and Elements of the Crime

While “.08” is the standard blood alcohol limit for operating while intoxicated (often referred to as “driving under the influence” or “DUI”), Michigan law also has enhanced penalties if you were more than twice the legal limit. Under MCL 257.625(1)(c), if you had a bodily alcohol content (BAC) of 0.17 or more (commonly called “High BAC” or “Superdrunk”), the consequences will be much more severe.

There are three elements to operating with a high BAC, 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 0.17 grams or more per 100 milliliters of blood, 210 liters of breath, or 67 milliliters of urine.

In most drunk driving cases, the police will administer a roadside “preliminary breath test” (PBT) to gauge your BAC. 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 man has several drinks at a bar in an out-of-the-way locale. After last call, he gets in his car and heads for home. Not far down the road, a police officer pulls him over after seeing him swerve onto the shoulder. The man is clearly intoxicated, and he admits to having several drinks at the bar. He consents to a blood draw, but—it being the middle of the night in a remote area—it takes the police officer an hour to find someone qualified to draw the man’s blood. The result comes back at 0.18.

A woman is driving home from a wedding, where she had several drinks. A police officer pulls her over for running a red light. The woman admits to having a few drinks. She performs poorly on field sobriety tests, and she blows a 0.20 on the PBT. The officer arrests her. At the police station, her Datamaster result is also 0.20.

3. Related Offenses

Other similar or related offenses include:

1. Operating with an unlawful bodily alcohol content, MCL 257.625(1)(b)
2. Operating under the influence, MCL 257.625(1)(a)
3. Operating while visibly impaired, MCL 257.625(3)

4. Defenses to Operating with a High BAC

Common defenses to operating with a high BAC are (1) BAC lower at the time of driving and (2) improper search or seizure.

Take the man who was pulled over after leaving the bar. Absent extraordinary circumstances, he will be on the hook for a drunk driving crime. But he may have an argument that it should not be operating with a high BAC. Given the delay between when he was pulled over and when his blood was drawn, he may be able to argue that his BAC was lower at the time he was driving. This is known as a rising BAC defense. Such a defense is premised on the fact that it takes time for alcohol to enter the blood stream after it has been consumed. Here, for example, if witnesses testified that the man downed two shots just before leaving the bar, this would support an argument that his BAC only rose past 0.17 after he had been pulled over. While the man would still be guilty of operating with an unlawful bodily alcohol content, as discussed below, the consequences will be much less severe.

Now take the woman pulled over after the wedding. This might seem like an open-and-shut case, but suppose the police officer’s dashcam video shows that she never ran a red light. 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 red light, the police officer never had probable cause to pull her over. So the charge against her will be dismissed even though she was “superdrunk.”

5. Penalties

Operating with an unlawful bodily alcohol content between 0.08 and 0.16 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. Operating with a high BAC, by contrast, is a misdemeanor punishable by up to 180 days in jail, a fine of between $200 and $700, community service up to 360 hours, and vehicle immobilization. So the difference—particularly in terms of potential jail time—is not trifling.

And penalties increase for subsequent convictions. An operating with a high BAC 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.

An operating with a high BAC conviction after two prior impaired driving convictions within your 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 a High BAC

If you’re charged with operating with a high BAC, don’t expect the prosecutor to go easy on you. In their eyes, “superdrunk” drivers pose a serious danger to public safety and deserve to be taught a lesson. You need an aggressive criminal defense attorney to have any chance of fending off a high BAC charge. Grabel & Associates has been in business for more than 20 years and has handled thousands of drunk driving cases. Our highly respected attorneys know what it takes to obtain the best result in your case.

For more information about operating with a high BAC and to talk about your case, contact Grabel & Associates at (800) 342-7896.