DUI Causing Serious Impairment of a Body Function

In Michigan, a person is guilty of Operating While Intoxicated Causing Serious Impairment of a Body Function if the prosecutor can prove that:

The person operated a motor vehicle (Operate means to drive or have actual physical control of the vehicle).
That the person operated the vehicle on a highway or a road generally open to the public or generally accessible to motor vehicles (including parking lots).
That the person was intoxicated,
- A bodily alcohol level of 0.08 grams or more per 100 milliliters of blood/210 kiters of breath/67 milliliters or urine.
- Operated the vehicle while under the influence of alcohol, controlled substance, another intoxicating substance, or a combination thereof
  OR
  That the person was visibly impaired, meaning that due to the consumption of alcohol (even if under the legal limit) or a controlled substance the person drove with less ability than would an ordinary careful driver. The person’s ability to drive must have been lessened to the point that it would be noticed by another person.
That the person voluntarily decided to drive knowing that they had consumed alcohol, a controlled substance, or a combination thereof and they might be intoxicated or visibly impaired.
That the person’s operation of the vehicle caused the serous impairment of a body function to another individual. To cause such an injury, the person’s operation of the vehicle must have been a factual cause of the injury – meaning but for the person’s operation of the vehicle the injury would not have occurred. The serious injury must have been a direct and natural result of operating the vehicle.

Under the influence of alcohol or a controlled substance means that the use of consumption of that substance caused the person’s ability to operate a motor vehicle in a normal manner to be substantially lessened. To be under the influence, a person need not be falling down or unable to stand, or vomiting, etc. however, just because someone consumed alcohol or a controlled substance does by prove, by itself, that the person is under the influence of alcohol or a controlled substance. The test is whether, because of the consumption of alcohol or the controlled substance, that the person’s mental or physical condition was significantly affected and the person was no longer able to operate a vehicle in a normal manner.

An intoxicating substance can be in any form. It includes but is not limited to, alcohol, marijuana, vapors, fumes, even some prescription medications, or any substance that was taken into the person’s body in any manner, that is used for a purpose for which it was not intent, and that may result in a condition of intoxication.

What constitutes a Serious Impairment of a Body Function?

Serious impairment of a body function includes but is not limited to:

Loss of a limb or loss of the use of a limb. MCL 257.58c(a)
Loss of a foot, hand, finger. MCL 257.58c(b)
Loss of an eye or ear or the use thereof. MCL 257.58c(c)
Loss or substantial impairment of a bodily function. MCL 257.58c(d)
Serious visible disfigurement. MCL 257.58c(e)
A comatose state that lasts more than 3 days (think, coma) MCL 257.58c(f)
Measurable brain or mental impairment (think, TBI) MCL 257.58c(g)
A skull fracture or other serious bone fracture/break. MCL 257.58c(h)
Subdural hemorrhage or subdural hematoma. MCL 257.58c(i)
Loss of an organ. MCL 257.58c(j)

To be the factual cause of a serious impairment of a body function (one of the elements above), the Michigan Supreme Court in People v Schaefer, 473 Mich 418, 703 NW2d 774 (2005), ruled that the Defendant’s operation of the motor vehicle, not the defendant’s intoxicated manner of driving, must be the cause of the victim’s death. Id. at 422. The Michigan Supreme Court recognized that the Michigan Legislature’s intent was to deter the gravely dangerous conduct of driving while intoxicated regardless of whether intoxicated changed the manner of operation of the vehicle. A year later, in 2006, the Michigan Supreme Court held in People v Derror, 475 Mich 316, 715 NW2d 822, that the ruling in Schaefer applied to Drunk Driving Causing Serious Impairment of a Bodily Function as well.

The Michigan Supreme Court held in the Schaefer case that the intoxicated person’s operation of the motor vehicle must be both a factual cause and proximate cause of the victim’s injuries. Schaefer at 435. A factual cause requires a showing that but for the defendant’s conduct, the result would not have occurred. Id. at 435-436. “Absent [the] defendant’s operation of the vehicle, the collision would not have occurred.” Id. 445. For a defendant’s conduct to be regarded as a proximate cause, the victim’s injury must be a direct and natural result of the defendant’s actions. Id. at 436. There must be evidence that the victim’s injury (or death) was the direct and natural result of the defendant’s operation of the vehicle Id. at 445. In determining if the conduct was the proximate cause the court needs to examine whether there was an intervening cause that superseded the defendant’s conduct such that the casual link between the defendant’s conduct and the victim’s injury was broken. Id. at 436-437. Reasonable foreseeability is the standard by which the court gauges whether an intervening cause supersedes. If the intervening cause was reasonably foreseeable based on an objective standard of reasonableness then the defendant’s conduct will be considered the proximate cause.

In People v Derror, the Michigan Supreme Court held that, prosecutors in drunk driving causing serious impairment of a bodily function where the defendant had any amount of a controlled substance in his or her body the prosecution is not required to prove that the defendant knew they might be intoxicated.

“MCL 257.625(5)… punish[es] for the operation of a motor vehicle causing death or serious impairment of a body function in violation of subsections 1, 3, and 8. Here, Derror operated a motor vehicle causing death and serious impairment of body function in violation of subsection 8. Schaefer would seem to require the prosecution to prove that Derror voluntarily decided to drive, knowing that she had consumed an intoxicating agent and might be intoxicated. The plain language of MCL 257.625(8) does not require the prosecution to prove beyond a reasonable doubt that a defendant knew he or she might be intoxicated. MCL 257.625(8) does not require intoxication, impairment, or knowledge that one might be intoxicated; it simply requires that the person have “any amount” of a schedule 1 controlled substance in his or her body when operating a motor vehicle. We thus clarify Schaefer and hold that, in prosecutions involving violations of subsection 8, the prosecution is not required to prove beyond a reasonable doubt that a defendant knew he or she might be intoxicated.” Derror, 475 Mich at 334.

The Michigan Supreme Court in People v Feezel, 486 Mich 184, 783 NW2d 67 (2010) held that the decision in Derror is overruled to the extent that it applies to certain marijuana metabolites that may not have an intoxicating offense anymore.

“We hold that 11-carboxy-THC is not a schedule 1 controlled substance under MCL 333.7212 and, therefore, a person cannot be prosecuted under MCL 257.625(8) for operating a motor vehicle with any amount of 11-carboxy-THC in his or her system. As a result, Derror was wrongly decided, and because the doctrine of stare decisis supports overruling Derror, we overrule Derror to the extent that it is inconsistent with this opinion.” Feezel, 486 Mich at 205.

Recently, Attorney Megan Smith, represented a defendant in a case of OWI Causing Serious Impairment of a Bodily Function. The defendant was the driver of a vehicle that caused paralysis to another individual. The Prosecutor’s office argued that the defendant’s use of marijuana over 36 hours prior to the incident caused the defendant to be impaired. However, Attorney Smith was able to argue that pursuant to the lab test, marijuana was not active in the defendant’s system. Despite the lab results showing a positive result for marijuana, the results actually showed marijuana metabolites that did not have an intoxicating effect on the defendant anymore. Thus, the prosecutor could not move forward with a charge of OWI Causing Serious Impairment of a Bodily Function as the defendant was not operating under the influence of any substance(s).

Penalties for Operating While Intoxicated Causing Serious Impairment of a Bodily Function

A person convicted of OWI Causing Serious Impairment of a Bodily Function is guilty of a felony punishable by:

A fine not less than $1,000 but not more than $5,000 or up to 5 years in prison, or both.
Possible vehicle forfeiture or immobilization.
6 points added to your driving record.
Operator’s license revoked for at least one year but up to five years.

If the offense occurs while the individual has an alcohol content of 0/17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters or urine, and within 7 years of a prior conviction, the penalty is enhanced to:

A fine not less than $1,000 but not more than $5,000 or up to 10 years in prison, or both.
Possible vehicle forfeiture or immobilization.
6 points added to your driving record.
Operator’s license revoked for at least one year but up to five years.

If you or a loved one has been charged with Operating While Intoxicated Causing Serious Impairment of a Bodily Function, call our office today to discuss the case with an experienced criminal defense attorney. We can assess your case to determine the best possible route to take to protect you and your rights.