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People v. Bulger: Do Underage DUIs (Zero-Tolerance OWIs) Get Counted as Misdemeanor for Felony Sentencing Guidelines?

January 18, 2018 DUI/OWI/DWI

In the Court of Appeals case of People v. Bulger, the Court answered the question of whether a conviction of operating a vehicle as a minor with any bodily alcohol content should be counted as a misdemeanor for scoring purposes for felony sentencing.

The Court ruled that the underage drinking and driving charge, the “zero-tolerance” charge, does count as an operating while intoxicated offense which should be scored as a misdemeanor.

What Happened in the Case

Bulger plead no contest to operating while intoxicated causing death and operating while intoxicated second-offense. At sentencing, the Court counted his past operating a vehicle as a minor with any bodily alcohol content as a misdemeanor to calculate Bulger’s sentence guidelines.

How Felony Sentencing Works in Michigan

When a person is sentenced on a felony, they are sentenced to a minimum amount of time and a maximum amount of time. The maximum amount of time is set by statute. The minimum amount of time is calculated by adding up two variables. The two variable are the person’s past record and factors from the sentencing offense. The variables are added up to produce a score. That score is then shown on a grid which tells the person what the potential minimum sentence for the case will be.

The defendant wants the score to be as low as possible. A defendant may challenge the score by claiming that a certain variable was scored in error.

Prior Record Variable

One variable used to produce the score is the defendant’s past record, which includes past misdemeanor and felonies. Not all misdemeanors are scored though, but only misdemeanors involving offenses against a person or property, controlled substance offenses, weapon offenses, and operating while intoxicated offenses.

The defendant’s argument was that his past operating with a bodily alcohol content under 21 should not be counted because it is an offense that does not involve driving under the influence or impaired, but rather with just the presence of alcohol.

The Court’s Decision

It is true that a person could be convicted of underage DUI without any evidence of impairment or real intoxication. Also, there are lesser penalties associated with the underage DUI charge. For example, a person cannot be sentenced to jail for this charge.

Nevertheless, the Court ruled that the underage drinking and driving charge does count as an operating while intoxicated offense for the purpose of felony sentencing.

In the world of DUIs, the charge can get more serious when a person has a prior DUI conviction. For example, a person with a prior DUI conviction can be charged with operating while intoxicated-second offense (If the first conviction was within seven years of the second arrest).

Or a person with two prior DUI convictions can be charged with operating while intoxicated-third offense. A prior conviction can include the zero-tolerance underage drinking and driving charge. The only limitation is that no more than one under-21 DUI can be used to enhance a subsequent DUI.

The zero-tolerance charge can act as a sentence enhancer for DUI convictions. Therefore, the Court said, the legislature intended this charge to act as a real DUI.

The Court in the end ruled that underage DUIs should be counted as misdemeanors for felony sentencing purposes.

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Call Sam Bernstein at 734-883-9584 or e-mail at

Sam Bernstein is an Ann Arbor Lawyer focusing on criminal defense and OWI law.

ArborYpsi law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.

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This case is cited as People v. Bulger, 804 NW 2d 341 – Mich: Court of Appeals 2010