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Municipal Prosecutions of Drunk Driving Under the New “Super Drunk” Law

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Nichole J. Derks
Foster Swift Municipal Law News
October 2010

Michigan’s new "Super Drunk" law takes effect October 31, 2010. In short, the new law gives enhanced penalties for operating a vehicle while "super drunk" – defined as having a bodily alcohol content (BAC) of 0.17 or higher. The penalties for violating the new law include imprisonment for up to 180 days and fines between $200 and $700.

While we can see benefits to prosecutions under the Super Drunk law, Michigan cities, townships, and villages should note that they likely cannot prosecute persons under the new Super Drunk Law. This is because the underlying enabling statutes for cities, townships, and villages do not permit them to enforce crimes with penalties as steep as in the Super Drunk Law – imprisonment for up to 180 days in jail.

So what does the new Super Drunk Law mean for cities, townships, and villages? We see at least these two options:

  1. Cities, townships, and villages are still able to prosecute persons under traditional Operating While Intoxicated charges – even if the person has a BAC of .17 or higher. But even with a conviction, they cannot pursue the additional penalties available for those convicted of being Super Drunk.
  2. If a city, township, or village arrests a person with a BAC of 0.17 or higher and wants to pursue prosecution against the person under the Super Drunk Law, the city, township, or village can send the case to its respective county prosecutor for review. Unlike cities, townships, and villages, counties’ enabling statutes allow them to prosecute crimes with penalties as steep as the Super Drunk law.