What is a Michigan implied consent suspension?
If you refuse an officer’s request to take a chemical test you will receive a Michigan implied consent suspension. Most people do not realize that when they apply and receive a Michigan driver’s license, they implicitly agree to take an alcohol test when requested by a police officer after an arrest for a drinking and driving offense.
Stated again, if you are arrested for drinking and driving in Michigan, you will be required to take a chemical test to determine your bodily alcohol content (BAC). Under Michigan’s Implied Consent Law, all drivers are considered to have given their consent to this test when they have been given a license.
Not many people know this law. It is understandable because if you have never been arrested for a drinking and driving offense you will never have to perform a test for alcohol.
For your reference, the Michigan Implied Consent statue can be found here. The Michigan statute.
Please note the following: “The request for hearing must be mailed within 14 days of the receipt of the Officer’s Report of Refusal to Submit to Chemical Test containing the Notice of suspension, or your operator’s or chauffeur’s license and vehicle group designation or operating privilege will be suspended. Send this form with your original signature. Do not send a photocopy.”
If you have been issued a Michigan implied consent refusal, the suspension can be appealed to the Administrative Hearings Section of the Secretary of State. If you do not make the request within 14 days, your driving privileges will be automatically – suspended.
If you are reading this article and have been recently arrested for a drinking and driving offense with an implied consent refusal, the police officer should have given you a form to send to the Michigan Secretary of State. For your convenience, you can find a link to the hearing request form here: Hearing Request Form.
Note: (1) The implied consent refusal does not apply to the Preliminary Breath Test (PBT) administered by the police officer on the side of the road. It only applies to the test at the police station. This is a civil infraction. (2) The implied consent suspension can still be enforced even if you are found not guilty of the drinking and driving offense. The implied consent issue and the OWI charge are to separate legal proceedings.
What can the police do, if I refuse a breath test?
If you refuse to take a breath test at the police station, the officer will get a search warrant to draw your blood. (There are legal defenses based on Fourth Amendment arguments for the blood draw; they are evaluated on a case by case basis). So, one way or the other, the officer will get the results of your body alcohol content (BAC).
Penalties for a Michigan Implied Consent Refusal (chemical test refusal)
Since most people are not aware of the Michigan implied consent law, they most likely are not familiar with the consequences of an implied consent refusal. The following penalties apply:
- 6 points will be added to your driver record and your license will be suspended for one year. A suspension of a license is automatic for any refusal to submit to the test. These consequences are separate from those resulting from any drinking and driving conviction; hardship appeal available
- If you are arrested a second time for a drinking and driving offense within 7 years and again unreasonably refuse the test, 6 points will be added to your driver record and your license; your driving privileges will be suspended for two years; no hardship appeal available
- If you refuse to take the test under the Implied Consent Law or if the chemical test shows your BAC is 0.08 or more, your Michigan driver’s license will be destroyed by the police officer and you will be issued a 625g permit to drive until your case is resolved in the court.
The refusal is not a criminal offense. It is a civil infraction.
What to Expect at the Michigan Implied Consent Hearing
The fact that you are accused of an implied consent – chemical test refusal, does not mean that you will automatically lose your license for one year. You have the right to a hearing on your alleged refusal.
If you properly and timely sent in your request for a hearing, the SOS will schedule the hearing several weeks after later. If this is your first refusal, your request for a hearing cannot be denied. Any subsequent refusals can be denied.
The reason for an Michigan implied consent refusal hearing: to determine whether you reasonably or unreasonably refused to take the breath test.
What if you refuse the test and change your mind? Police officers are required to allow you to take the breath test, within a reasonable short period of time, if you change your mind about the test. If the police do not honor your change of mind, the refusal can be deemed “reasonable.”
The Michigan implied consent hearing is held at a branch of the Secretary of State or a designated hearing office. When you arrive at the hearing, it is suggested that you have an attorney with you to question the officer and make arguments on your behalf. Present will be you, your attorney, the hearing officer (either in-person or via video), the arresting police officer, and the officer who requested the chemical test.
While you are not required to have an attorney present with you at this hearing, you can hire one to assist with questioning the police officers and arguing on your behalf.During the hearing, the officers usually testify first. The hearing officer may ask questions of the police. Then you, or your attorney, will be able to ask the police officers questions. You will testify next. Again, the hearing officer might ask questions.
While you await your hearing date, you still have driving privileges. If you lose the implied consent hearing, your license suspension will not go into effect until a few weeks after the hearing. You will be notified in writing.
What is at issue in the hearing? What will the hearing focus on?
The Michigan implied consent hearing will only focus on 4 particular issues. MCL 257.625f limits the issues appealable at a hearing to the following:
1. Whether the police officer had reasonable grounds to believe that you committed a crime described in MCL 257.625c(1).
2. Whether you were placed under arrest for a crime described in MCL 257.625c(1).
3. If you refused to submit to a chemical test upon the request of the officer, whether the refusal was reasonable.
4. Whether you were advised of your chemical rights under MCL 257.625a
Based on the 4 issues, the hearing officer must determine if (1) the officer had probable cause to arrest you for a drinking and driving offense (or other driving offense contained in the statute) (2) were you in fact arrested; (3) was the refusal “reasonable”; (4) did the officer read you the chemical test rights.
Implied Consent Refusal Defenses
In order to satisfy the first issue, the police officer must show that he had a reasonable belief that you have committed a Michigan drunk driving offense. The officer will provide testimony about his observations that lead the officer to reasonably believe you committed an offense. Since this is a civil and not a criminal proceeding, the standard of proof is not beyond a reasonable doubt but a preponderance of the evidence.
Your attorney may argue that the officer did not have sufficient grounds for an arrest.
As far as issue two, the police must have made an actual arrest. Additionally, the arrest must be valid. As a defense, an argument may be based on a jurisdictional issue.
Most implied consent defenses relate to the following two issues.
A. Your refusal must have been a “reasonable” refusal.
If you reasonably refused the chemical test, you do not violate the implied consent law. The arguments regarding this defense are varied. Specifically, a driver can request an independent test after the police have administered the breath test. If a driver asks to speak to an attorney before submitting to a chemical test, the police officer should allow you the opportunity to make a phone call. If the police do not allow you to try to speak with an attorney, and you refuse to take the test, the refusal is usually deemed reasonable.
The following are examples of “real-world” reasonable refusals that we have encountered.
1. The police asked if the client would consent to the breath test. Client agreed. The police administered the Breathalyzer test. The client gave a good sample. The client could not provide a second sample. At the hearing, the officer claimed that the client unreasonably refused the second test. We argued that the law only requires one sample not two. We were correct and there was no refusal on the part of our client.
2. On video, at the police station, the client tried to provide a sample. However, before doing so, the client advised the police that he had severe asthma. He doubted he could blow into the machine for the required period of time. The officers claimed he refused. At the hearing we documented client’s asthma. The hearing officer agreed that the client did not unreasonably refuse the breath test as there were other options available such as a blood draw.
3. At the police station, the client asked the officers if he could call my office to ask if he should take the breath test. The officers ignored the request and claimed that the client refused. The hearing officer determined that when the officer ignored the client’s request to speak with his attorney, the client’s subsequent refusal was not unreasonable.
There are many other examples.
B. The officer failed to read the chemical test rights to the individual
The law requires that the police officer read the following chemical test rights to the defendant.
“I am a peace officer. You are under arrest for the offense of (insert offense)”Substance Abuse Driving Offenses and Penalties
“I am requesting that you take a chemical test to check for alcohol and/or controlled substances in your body. IF YOU WERE ASKED TO TAKE A PRELIMINARY BREATH TEST BEFORE YOUR ARREST, YOU MUST STILL TAKE THE TEST I AM OFFERING YOU.”
“If you refuse to take this chemical test, it will not be given without a court order, but I may seek to obtain such a court order. Your refusal to take this test shall result in the suspension of your operator’s or chauffeur’s license and vehicle group designation or operating privilege, and the addition of six points to your driving record.”
“After taking my chemical test, you have a right to demand that a person of your own choosing administer a breath, blood, or urine test. You will be given a reasonable opportunity for such a test. You are responsible for obtaining a chemical analysis of a test sample taken by a person of your own choosing.”
“The results of both chemical tests shall be admissible in a judicial proceeding, and will be considered with other admissible evidence in determining your innocence or guilt.”
Will you take a: (Select the appropriate test from the following list)
Click on this link to see the form. Link to Form DI-93 (Chemical Test Rights)
If the officer did not read you the DI-93 chemical test rights in its entirety your refusal may be found to be reasonable. The police officer must clearly and explicitly warn you of the consequences of a refusal. Testimony will be needed for this defense. The booking video might help as well.
At the conclusion of the hearing
The hearing officer usually makes his or her findings at the end of the hearing. If the hearing officer finds against you on all four issues cited above – you will lose your license for one year.
If you show that the police violated just one of the issues – no loss of license. You win.
What happens if you lose?
If you lose the implied consent hearing you still have options to save your driving privileges.
Option 1 – Appeal to Circuit Court
If you or your attorney believes that the hearing officer made a mistake as it relates to the findings on the 4 issues, you can ask the circuit court to reverse the decision. The circuit courts do not typically reverse the hearing officer’s decision.
Option 2 – Hardship Appeal
In the circuit court, you will have the opportunity to file a motion asking the court to grant you a “First Time Implied Consent Refusal” restricted license. This is different than arguing the hearing officer made an error. In the motion you are requesting a license for work, for example, and without a license your life will face an extraordinary burden. This is why the motion is also known as a “hardship appeal.” This motion will require the attachment of a substance abuse evaluation report to document that you are not a risk to drink and drive again. The attorney general’s office will respond to the motion and at appear at the motion hearing.
Here you can find the Motion form.
While the motion form itself is quite simple, an experienced attorney will draft a more persuasive and thorough argument.
As you can see, an implied consent refusal does not automatically mean that you will lose your license for one year.
Should I take the breathalyzer or chemical test? If I don’t take the test won’t this help my case?
I will answer these questions one at a time.
1. Yes, except in the rarest of circumstances, you should agree to take the breath test.
As this article states, you can technically refuse to take a breathalyzer, but as I have explained there are consequences. The consequences of an implied consent refusal are sometimes more severe than a drinking and driving offense. In Michigan, you may not lose your license for a first time drinking and driving offense. If the offense is reduced to an operating while visibly impaired (OWI), you would not lose your driving privileges. Even with a “super drunk” (BAC > .17%) conviction you would still be able to drive with an interlock device after an initial suspension. So, in comparison a 1 year implied consent suspension can be worse.
2. The refusal to take the test will not make much, if any, difference to the criminal case.
As explained, if you refuse the test, the officer will get a warrant to draw your blood. So, the officer will get the blood alcohol evidence anyway. Moreover, simply because you refused the test does not mean that you will not get convicted of the drinking and driving offense.
Besides the BAC evidence, the police officer will rely on other evidence to establish a drinking and driving case. Yes, the absence of BAC evidence would help but that rarely ever happens. Nevertheless, let us assume that the officer does not have the BAC results.
Besides a BAC test result, the officer will present testimony and possibly the dash-cam video to establish you were operating under the influence of alcohol. For example, the officer will testify that you may have failed the field sobriety tests. The officer will also testify that he or she smelled alcohol on you breath, your eyes were glassy and bloodshot, you were unsteady on your feet, etc.
The point is, there are rarely any circumstances where your refusal would be better than taking the chemical test.
Important distinction: You can refuse to take the test in the street, the preliminary breath test (PBT) without much consequence. A PBT refusal is a civil infraction with no loss of license. If you refuse the PBT, and the other evidence of probable cause is weak, your attorney might be able to challenge the stop and subsequent arrest for drinking and driving.
Be clear as to what test you are refusing. Be very clear. I am not telling you to refuse any of the tests, I am simply you telling that there are consequences that follow the choices.
Always consult with an experienced criminal defense and license restoration attorney
It is very important that you receive advice from an experienced criminal defense and license restoration attorney. Since we are experienced lawyers that handle drinking and driving cases and license restoration, we are very familiar with the implied consent laws and hearings.
You can call CZARNECKI & TAYLOR today for experienced legal representation and advice.
We are available 24 hours a day, seven days a week at:
JAMES E. CZARNECKI II (586) 718-2345
GENEVIEVE L. TAYLOR (586) 350-6044
visit our website: CZARNECKI & TAYLOR website