Operating While Visibly Impaired

Operating While Visibly Impaired

My BAC was under .08. I thought that was the legal limit. Can I still be charged?

- HS, Michigan


In Michigan a DWI charge includes having a Blood Alcohol Content (BAC) that is above the limit of .08. This can be tested in a number of ways, including through a breath test after you have been pulled over. You are right in thinking that the legal limit is set at .08, but a DWI is not the only type of charge that you can face for driving with alcohol in your system. A charge for Operating While Visibly Impaired (OWVI) may be given when it is apparent to an officer that your ability to drive has been impaired due to the consumption of alcohol or the use of drugs. Your BAC level can be under .08 but an officer may still view you as unable to drive safely.

Most OWVI charges will be misdemeanors, but they increase to a felony after three or more. Maximum penalties for a first OWVI can include up to a fine of $300, a 90 day restriction of your driver's license, 93 days of jail, 360 hours of community service, a $500 Driver Responsibility Fee for two years, vehicle immobilization and four points on your driving record. If you are convicted a second time within seven years then the penalties may increase to a maximum sentence including fine of $1,000, a year in jail, 90 days of community service, 180 days vehicle immobilization, license plate confiscation, vehicle forfeiture, revocation of your license for a year and a $500 Driver Responsibility Fee for two years.

If you are convicted a third time at any point in your life, then it will be increased to a felony. A conviction can include maximum penalties of five years in jail, 180 days community service, a fine of $5,000, vehicle forfeiture, three years vehicle immobilization, four points on your driving record, a license revocation for a year and a Driver Responsibility Fee for two years. These penalties will all be increased if you are convicted for causing an injury or fatality at the time of the incident.

The burden of proof will require establishing that you had alcohol in your system and this made you visibly impaired to the point that you were unable to operate your vehicle safely. Since chemical test results did not show you over the legal limit, the prosecution cannot rely on them to convict you. In some cases the officer's word may be the main piece of evidence and there are many reasons why that is not always enough. Evidence may be insufficient and a charge may be effectively fought. Call our firm if you have been charged an OWVI or related offense.

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