Gov Whitmer Signs Bill for Clean Slate of Non-Repeat OWI Offenders

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Gov Whitmer Signs Legislation Allowing Clean Slate for Non-Repeat OWI Offenders, Protects Michigan Drivers by Ensuring that Michigan’s Legal BAC Limit Remains at .08

August 24, 2021

LANSING, Mich. — Governor Whitmer yesterday signed House Bills 4219 and 4220, which will allow for expungement of convictions for a first violation of operating while intoxicated (OWI) under certain circumstances. The bills are expected to allow an estimated 200,000 non-repeat OWI offenders to have the opportunity for a second chance at a clean record.

The governor also signed legislation that continues Michigan’s legal blood alcohol content (BAC) level for driving at .08, eliminating a planned sunset that would have increased the limit to .10.

“No one should be defined by a mistake they have made in the past,” said Governor Whitmer. “These bills allow Michiganders to move on from a past mistake in order to have a clean slate. We must clear a path for first-time offenders so that all residents are able to compete for jobs with a clean record and contribute to their communities in a positive way.”

The bills give those with OWI convictions the option to seek expungement of their first offense five years after probation ends. Applicants must submit a petition to the court, which would be reviewed and determined by a judge. Incidents that caused death or serious injury to a victim are not eligible.

“Drunk driving is a serious problem in Michigan, but permanently limiting a person’s ability to work and drive based on a one-time, decades-old mistake does not make sense. People who can show that their DUI conviction was a one-time mistake should have an opportunity to make a fresh start.”
Safe & Just Michigan Executive Director John S. Cooper said.

House Bills 4219 and 4220

House Bill 4219 and House Bill 4220 will allow first-time OWI offense violators to be eligible for record expungement.

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Together, the bills allow for the criminal record expungement of first-time offenses for:

Any person operating a vehicle with a BAC of .08 or more
Any person operating a vehicle while visibly impaired by alcohol or other controlled substance
A person under 21 years old operating a vehicle with a BAC of .02 or more
Any person from operating a vehicle with any bodily amount of cocaine or a Schedule 1 controlled substance

House Bill 4219 was sponsored by Rep. Tenisha Yancey, D-Grosse Pointe, and House Bill 4220 was sponsored by Rep. Joe Bellino, R-Monroe.

House Bill 4308 and House Bill 4309 will together amend the Michigan Vehicle Code and the Code of Criminal Procedure to maintain the state’s per se OWI presumption at a BAC level of .08. Without this legislation, Michigan BAC legal limit was set to rise to .10 on October 1, 2021, endangering Michigan drivers and costing the state millions in federal dollars.

“Michigan is the only state in the country not to have a firm .08 Blood Alcohol Concentration limit for operating a motor vehicle,” said Rep. Graham Filler. “Eliminating the sunset is not only the right thing to do, but it ensures the safety of those traveling on our roads.”

House Bill 4308 was sponsored by Rep. Abdullah Hammoud, D-Dearborn, and House Bill 4309 was sponsored by Rep. Graham Filler, R-DeWitt.

A copy of the signing letter can be found here:

2021 HB 4308-09 Signing Letter (2021.08.23-02).pdf

Summaries of Bills

House Bill 4220 (S-1) would amend Section 1c of Public Act (PA) 213 of 1965, which provides
for setting aside convictions in certain criminal cases, to allow the setting aside of a conviction
for a first violation operating while intoxicated (OWI) under certain circumstances.
House Bill 4219 (S-1) would amend Section 1 of PA 213 to prescribe the definition of “first
violation operating while intoxicated offense” and to modify the definition of “operating while
intoxicated”.

House Bill 4308 (H-1) would amend the Michigan Vehicle Code to delete the sunset of October
1, 2021, on which the bodily alcohol content (BAC) that constitutes OWI will increase from
0.08 to 0.10.

House Bill 4309 would amend the sentencing guidelines within the Code of Criminal Procedure
to reflect the elimination of the sunset provision raising the BAC that constitutes OWI.
Senate Bill 400 would amend PA 213 to prescribe the time period in which an application to
set aside a conviction for a first violation OWI offense would have to be filed.

House Bills 4219 (S-1) and 4220 (S-1) are tie-barred to each other. House Bill 4308 (H-1)
and 4309 are tie-barred to each other. House Bill 4308 (H-1) also is tie-barred to House Bill

Senate Bill 400 is tie-barred to House Bills 4219 and 4220.

FISCAL IMPACT

House Bills 4219 (S-1) and 4220 (S-1) likely would not have a noticeable fiscal impact on
local court systems. While the bill likely would result in additional expungement filings across
the State, it is assumed these filings would not flood the local court systems with additional

administrative costs and hearing requests. There are several fees associated with the
expungement process ($50 to the Michigan State Police (MSP) for a background check, $10
to $15 to MSP for fingerprints, $10 to the Internet Criminal History Access Tool (ICHAT)), but
no filing fees that go to a Judiciary restricted fund.

The bills likely would not have a fiscal impact on State government.

House Bill 4308 (H-1) would have no fiscal impact on State or local units of government;
however, allowing the BAC sunset to take effect could reduce costs for the Michigan
Department of Corrections (MDOC) and reduce revenue for local libraries. Currently, under
the State’s per se statute, a person with a BAC of 0.08 grams is considered to be operating
while intoxicated; however, the statute requires the per se level to revert back to a BAC of
0.10 grams on October 1, 2021.

Enactment of the bill would have no fiscal impact on the State or local units as the current
BAC thresholds would remain the same; thus, costs associated with them would remain
unchanged. However, absent the bills, the likely result would be fewer convictions and a
reduction in jail times and sentences. As a result, the MDOC could save an estimated $42,400
per prisoner per year, the average annual cost for incarceration in an MDOC facility.

Additionally, the average costs for parole and felony probation supervision services averaging
$4,300 annually per supervised offender, also could be saved. Finally, fewer convictions would
result in fewer fines, which would lead to lower revenue for local libraries (which are the
beneficiaries of civil fines).

The bill also would preserve existing Federal aid apportionments as it would lift the sunset on
the 0.08 BAC standard. Under Federal law (23 USC 163), states that do not comply with at
least a 0.08 BAC standard can lose Federal aid through the National Highway Performance
Program and the Surface Transportation Program. The Department of Transportation
estimates these loses could be up to $53.0 million in Federal aid per year. Currently, Michigan
receives roughly $1.4 billion in Federal aid per year.

House Bill 4309 would have no fiscal impact on local government and an indeterminate fiscal
impact on the State, in light of the Michigan Supreme Court’s July 2015 opinion in People v.
Lockridge, in which the Court ruled that the sentencing guidelines are advisory for all cases.
This means that any changes to the guidelines under the bill would not be compulsory for the
sentencing judge. As penalties for felony convictions vary, the fiscal impact of any given felony
conviction depends on judicial decisions.

Senate Bill 400 would have an indeterminate, though likely negative, fiscal impact on local
courts. Additional costs likely would come from an increase in the number of expungement
filings for a first violation OWI offense. The number of increased filings is indeterminate and
any additional costs would have to be absorbed by local court systems.

There are several fees associated with the expungement process ($50 to the MSP for a
background check, $10 to $15 to MSP for fingerprints, and $10 to ICHAT), but none of these
fees go to a Judiciary restricted fund. Expungement hearings typically do not take very long;
however, a large increase in these hearings could increase costs for courts in the form of
administrative costs and hearing times.