Setting Aside a Conviction of First Offense OWI
Under new Michigan law, an individual may move for an expungement of a first offense Operating While Intoxicated by Drugs or Alcohol, or any similar offense.
Expungement of an OWI or DUI Conviction in Michigan
Michigan’s OWI expungement law allows individuals with a first offense OWI, or similar offense, to petition to set aside their conviction. The applicant must wait five years after their probation ended, sentencing, or release from parole, whichever came last. An OWI expungement will wipe the offense completely from the applicant’s criminal record. The new expungement law applies to OWI, DUI, OWVI, OWPD, and Zero Tolerance convictions (OWI under 21 years old). An applicant seeking expungement of an OWI conviction must present sufficient proof of rehabilitation efforts.
First offense OWI convictions are not subject to automatic expungement.
Under the OWI expungement law, the statute defines a first offense Operating While Intoxicated as any of the following offenses:
- Operating While Intoxicated (OWI) First (also known as DUI, DWI, and OUI)
- Operating While Visibly Impaired First
- Operating with the Presence of Drugs First
- Operating With Any Bodily Alcohol Content (Zero Tolerance)
- Allowing a Person to Operate a Vehicle Under the Influence
- Operating While Intoxicated or Impaired Due to Illegal Drugs
- Operating While Intoxicated or Impaired Due to Prescription Medication
- Operating with Any Amount of a Schedule 1 Controlled Substance
“Can an OWI be expunged in Michigan?”
Yes, a first offense OWI can be expunged in Michigan. Under Michigan’s Clean Slate legislation, a first offense OWI can be expunged and completely wiped from your criminal history. Eligible offenses include OWI, OWI High BAC (Superdrunk), Impaired Driving (OWVI), Allowing an Intoxicated Person to Drive, Minor with any BAC, and Operating with the Presence of a Controlled Substance (OWPD).
Offenses that cannot be expunged are:
- OWI Causing Death or Serious Bodily Injury,
- OWI with a Passenger Under 16, and
- any OWI in a commercial vehicle.
“How is regular expungement different than OWI expungement?”
Expungement of a criminal conviction, other than OWI, requires proof that (1) a person’s conduct since their conviction justifies removal of the conviction and (2) that expungement of that conviction is in the public welfare. The judge is permitted to consider the defendant’s conduct from the date of the conviction until the expungement hearing. In addition to these burdens, a person seeking to set aside an OWI/DUI conviction must also prove that any alcohol or drug abuse issue or addiction has been sufficiently addressed under the OWI expungement law.
In determining whether to grant the petition to set aside a first offense OWI conviction, the reviewing court may consider whether or not the petitioner has benefited from rehabilitative or educational programs, if the sentencing court ordered any, or whether the petitioner took such steps before sentencing. The reviewing court is not constrained by the record made at sentencing.
“If I haven’t been convicted of any new crimes, can my OWI expungement petition be denied?”
The reviewing court may deny the petition if it is not convinced that the petitioner has either availed themselves of rehabilitative or educational programming or benefited from their completed rehabilitative or educational programming. It is essential to present all measures taken to maintain sobriety, therapeutic and educational, most compellingly and credibly. A lawyer will know what documents and exhibits are required to prove you’ve done a satisfactory amount to justify removing the conviction from your criminal history.
The Five-Year Waiting Period
The five-year waiting period referenced above starts after the applicant is released from probation or parole or after sentencing, whichever comes last. During the five (5) years, there cannot be any criminal convictions of any type. If the applicant was convicted of a crime during that 5-year waiting period, the period starts over as of the date of the new conviction. Also, there cannot be any pending criminal charges.
Setting Aside an OWI Conviction Will Be Challenging
Before February 19, 2022, Michigan has never permitted OWI expungements. Applicants can expect extraordinary resistance from judges considering applications to set aside a first offense operating while intoxicated. Mothers Against Drunk Driving (MADD) strongly opposed the Michigan OWI expungement law, and judges, who are elected officials, are strongly influenced by political pressures. Furthermore, most Michigan judges tend to have strong personal preferences in OWI cases that will cause them to treat these matters with extreme cynicism. The section of the statute that permits the judge to deny the petition, “if it is not convinced that the petitioner has either availed themselves of rehabilitative or educational programming or benefited from rehabilitative or educational programming they have completed,” will be heavily relied upon by judges when refusing to grant expungements in these cases.
How to Win Michigan OWI Expungement Cases
To succeed under the new OWI expungement law, the keys to success will be thorough planning, meticulous preparation, persuasive and credible evidence, and effective, zealous representation. Because judges are predisposed against granting relief in these cases, attorneys with outstanding reputations, experience, and a track record of success will stand the best chance of success.
OWI Expungement Attorneys in Michigan
The OWI Expungement Team with LEWIS & DICKSTEIN, P.L.L.C. has decades of experience winning felony and misdemeanor expungement cases in courts throughout Michigan. Our attorneys routinely win controversial motions and verdicts that other lawyers believed had no chance of success. Our team accomplishes results unknown to less experienced and general practice lawyers by utilizing a unique, effective team approach. As we always say, “when you walk into the courtroom with one of our lawyers, you enter the room with the collective reputation of all of our attorneys.” Although expungements of OWI convictions in Michigan are relatively new, our seasoned veteran lawyers are consistently successful in court with similarly complex and challenging circumstances. We will find a way to help you!
Call us today at (248) 263-6800 for a free consultation or complete a Request for Assistance Form. We will contact you promptly and find a way to help you.
We will find a way to help you and, most importantly,
we are not afraid to win!
FAQ – Michigan OWI Expungement
What are the benefits of expunging a DUI? Removing a DUI through expungement is beneficial. An officer who stops someone for a traffic violation will not give a warning to someone with a DUI conviction in most cases. Removal of a DUI can lower car insurance. Although a DUI doesn’t disqualify you from most employment, such a conviction can be a “behind the scenes” reason for denying employment or promotion.
How long does an OWI stay on your record in Michigan? Without an expungement, an OWI is never removed from a person’s criminal history. A second or subsequent OWI conviction is permanent.
Why is expungement important? Expungement gives a law-abiding person the ability to clear their criminal history. Good people make mistakes. The expungement law recognizes that people can change for the better. By following the law and taking measures to ensure that any alcohol or drug issues are under control, courts can clear an OWI conviction from someone’s record.
What is the purpose of expungement? According to Michigan’s legislature, expungement aims to incentivize people with a criminal history to live a productive, law-abiding life. A conviction expunged and removed from someone’s criminal history will no longer impede obtaining employment or advancing in a career. The OWI expungement law allows a person to get a second chance without a criminal history.
What’s worse, OWI or DUI in Michigan? Technically, Michigan does not have an offense corresponding to the DUI acronym (Driving Under the Influence). The correct acronym for Michigan’s Operating While Intoxicated Offense is OWI. The lesser offense to OWI is OWVI or Operating While Visibly Impaired.
How many points is an OWI in Michigan? A conviction for OWI carries 6 points. An OWVI conviction carries 4 points.
What is the difference between OWI and DUI? Again, DUI is not an offense in Michigan. The difference between OWI and OWVI is the level of intoxication. The driver’s bodily alcohol content must be greater than 0.08 or substantially under the influence for an OWI conviction. For OWVI, the issue is whether an ordinary person could tell that the driver’s ability to operate their car was affected by their alcohol consumption or drugs.
Does an OWI stay on your criminal record? An OWI is permanently on your record in Michigan unless you get an expungement. A first offense OWI can be expunged if the defendant can prove they meet the statutory burden and any alcohol or drug problem is under control.
Does an OWI stay on your driving record if it is expunged? Yes. A judge cannot remove an OWI from your driving record.
How bad is an OWI in Michigan? An OWI is serious, and you should not take it lightly. A person convicted of OWI can have a permanent record, will not get breaks from police at traffic stops, might lose employment or promotions, can lose custody in a divorce, be dropped from automobile insurance, lose a professional license, get rejected from college, or post-graduate education, and more.
Is an OWI better than a DUI? No, they are the same. Technically, there is no Michigan offense called DUI. The terms are often used interchangeably to mean the same thing.