Third Offense Felony: OWI Operating While Intoxicated

Unless someone has been injured or killed, OWI – Third Offense is the most serious alcohol and/or drug related offense in Michigan. Those convicted of a felony drunk driving will be labeled a habitual felon drunk driver for the rest of their life. The conviction can never be expunged or set aside. Further, the criminal justice system has a special place for these offenders. This means that they are distinct from other types of felony offenses.

Those convicted of felony DUI are generally not normal “criminals” who have mental tendencies to commit criminal offenses. Rather, they are people with a mental illness called alcohol dependence. Many would normally never commit criminal behavior. Their mental illness and inability to make good decisions while intoxicated are the direct causes of the criminal behavior.

Contrary to this distinction, OWI – Third Offense is still a criminal offense punishable by jail, fines, community service, probation and substance abuse treatment and education. Since it is a felony, OWI Third Offenses are prosecuted in circuit courts rather than district courts. Circuit courts are where the most serious state offenses are prosecuted, including murder. This is an important distinction, because the same judges and prosecutors are handling both.

It is also interesting that OWI – Third Offense is the most common felony prosecuted circuit courts. Therefore, its common that prosecutors and judges have policies on how they typically deal with these offenses. These policies generally concern typical plea bargaining and sentencing scenarios.

Operating while intoxicated (OWI) Third Offense is generally charged when someone has been arrested for DUI and has also been previously convicted with at least two prior offenses. If there are more than two prior offenses, the new charge is still OWI – Third Offense because it also means “third of subsequent offenses.” Therefore, if a person has been previously convicted five times of OWI, the new charge is still OWI – Third Offense. However, that does not mean the sentence or penalty will be the same.

Prior convictions include OWVI. The number of years between the prior convictions do not matter; all prior offenses within a person’s lifetime can count. Some prosecuting attorneys may choose not to count old offenses. However, this is completely up to them. Legally, they can count any offense regardless of the age.

OWI means driving while under the influence of alcohol/ or drugs or a combination. “Under the influence” means either having a bodily alcohol content in excess of .08 grams or driving while the ability to do so has been materially and substantially effected. This means that they could no longer drive in normal manner.

Those convicted of OWI – Third Offense have to serve a mandatory minimum of 30 days in jail. Depending upon jurisdiction, a jail sentence with work release may be available. Highly depending upon the judge, a general OWI – Third Offense (not fourth or fifth prior offense) sentence will consist of 30-90 days in jail, which may be with or without work release.

There will also be a sentence of between one and five year(s) of probation. Typically, it’s between two and three years of probation.

Additionally, there will be a vehicle immobilization or forfeiture, 30 days of community service and fines/costs. There will also be substance abuse counseling, treatment and education which may also include regular attendance to AA or other support group meetings.

Every felony conviction has applicable sentencing guidelines that must be calculated to determine a recommended range of months of incarceration. Factors to be considered include:

Additionally, there will be a vehicle immobilization or forfeiture, 30 days of community service and fines/costs. There will also be substance abuse counseling, treatment and education which may also include regular attendance to AA or other support group meetings.

  • the defendant’s criminal record,
  • their relationship with the criminal justice system at the time of the offense,
  • factors of the sentencing offense (including the BAC), and
  • whether someone was injured.

The range is then identified from a sentencing grid. OWI – Third Offense is categorized as a crime against public safety. Therefore, it falls into the crime class of E. These facts identify the different offense valuables that are applicable to OWI – Third Offenses as compared to other felony offenses. The Crime Class denotes how serious the offense is and is related to the potential recommended sentence.

A typical offender has two prior misdemeanor offenses (prior OWI cases  = 5 points). A BAC of below .15 (OV=10 points) will have guidelines equal to 0-9 (see chart above). This is expressed in a term of months. Therefore, it is recommended by the legislature that a person receive between 0 and 9 months in jail. However, this does not mean a judge can give 0 months because there is a mandatory minimum of 30 days (one month). Most people get between 1 and 3 months, which is highly dependent upon the judge and county.

Many employers can and will not offer employment to a person with a felony conviction. This is not true across the board, as many employers do not even ask. On the other hand, many do.

Additionally, a felon cannot be in possession of a firearm or purchase a firearm. Depending on the type and age of the felony, they can be ineligible to be licensed for a commercial or caregiver marijuana operation. Rental housing can be denied to those with felony records as well.

The licensing sanction for OWI – Third Conviction depends upon the number of previous offenses within the past seven or ten years.

  • Including the most recent offense, if they have two convictions within seven years, it will result in a license revocation for a minimum of one year.
  • If there have been three offenses within a period of ten years, there will be a license revocation for a minimum of five years.

A driver license revocation means it cannot be considered for reinstatement until the expiration of the minimum period imposed. Afterwards, a license restoration proceeding must be held to reinstate the license. During this hearing, it must be proved that the substance abuse problem that led to the offense is under control and likely to stay under control.

An effective strategy must take into consideration the jurisdiction in which the offense occurred. Additionally, a thorough investigation into the facts of the matter must be performed, along with an investigation of the chemical test that was performed. As previously stated, every jurisdiction and every judge have different policies about how to handle these cases.

Every person may have different goals which must be taken into consideration. It is known that everyone wants to avoid the following:

  1. avoid being convicted for a felony
  2. avoid serving time in jail or prison
  3. avoid a license revocation
  4. avoid probation.

These priorities often come in a different order depending the individual and their circumstances.

An effective defense strategy can expect a third offense felony to be reduced to a misdemeanor or lower with no jail sentence. Depending upon the dates of the prior offenses, a license revocation may be avoided. With a solid defense, a case can realistically be dismissed. However, none of these results typically happen without a DUI specialist defense lawyer.

Only a well trained and experienced DUI defense lawyer can formulate an effective defense strategy. They are the only ones who can truly and genuinely investigate the case. For instance, if a lawyer does not know how to fight a breath alcohol test or understand how the equipment really works, they will never be able be able to formulate a strategy for success.

The strategy could simply be centered on exploiting a weakness of the prosecution, make it into a big deal to create an opportunity to get a plea bargain that otherwise would not have been offered. Depending upon the investigation, the strategies can be endless. This is, of course, as the attorney is creative and resourceful.

Those accused of OWI – Third Offense are presumed to have an alcohol and/or substance abuse problem. If convicted of an OWI offense, regardless of whether it is a misdemeanor or felony, that presumption will become a reality. The fact is that there is a high likelihood that there will be some driving conviction and ultimately a sentencing hearing.

At that hearing, with a judge presuming there is an alcohol problem, it is necessary to demonstrate what is being done about it to ensure it does not become a problem again. If the defendant does not do everything necessary to ensure it does not happen again, they can be assured that the judge will sentence jail to emphasize the point.

Therefore, it is highly recommended that a defendant with a pending third DUI charge engage in a substance abuse evaluation, then pursue ongoing treatment. This should include regular attendance of Alcoholics Anonymous (AA) meetings. Attendance to AA does not require necessarily require signature verification.

What is most important is that there is a solid and fundamental understanding of how the program works. It must be communicated how the program has helped and how it will help in the future, even after probation has been terminated. Attendance is also necessary for a driver license restoration when it is time.

There will very likely be an order prohibiting the consumption of drugs and alcohol during the case. Random alcohol and drug testing will be necessary. We recommend doing everything to avoid a SCRAM tether, as it is not reliable or accurate. SCRAM also has a tendency for false positives. Since they do not get reported in a timely fashion, suggest or demand the use of a Soberlink device instead. Sometimes, a Breath Alcohol Ignition Interlock Device is ordered which can also serve as a replacement for random breath alcohol testing.

Even though drugs may not have been an issue in the underlying offense, drug testing is often required. This is because if a person who has a substance abuse dependency is no longer drinking, they will likely begin to abuse another drug instead. This is called, “switching addictions.”

For this reason, it is especially important for a person who has difficulty remaining abstinent from alcohol and drugs to have substance abuse counseling and relapse prevention therapy. Otherwise, it is likely the offender will drink or use drugs again. This then violates the bond order, increases the likelihood of incarceration, revokes pre-trial release, and generally make the case a lot harder to defend.

There are some judges who do not give second chances when it comes to pre-trial testing. If there is as little as one missed test, it could result in a revocation of bond. Fighting a case from behind bars becomes much more difficult and often results in a guilty plea at a time when it’s not advisable. For this reason, compliance with pre-trial supervision orders in incredibly important.

There are many different allegations for violating probation. This includes missing drug tests, new criminal behavior, and/or absconding. If a violation is substantiated, the penalties are generally confined to the original applicable guidelines. These guidelines include:

  • a tether,
  • more (or different) testing, or
  • dismissal of the probation violation allegations.

The discretion of the judge and available alternatives are almost endless. A skilled criminal defense lawyer is necessary to be….

  • persuasive,
  • place everything into context,
  • provide reasonable alternatives to incarceration,
  • fight the violation when warranted and ensure the best outcome.

The Law Offices of Barton Morris offers free case evaluations. Schedule an appointment with one of our DUI attorneys in Royal Oak by calling (248) 541-2600.

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