What is a Michigan implied consent driver’s license suspension?

By Attorney James Czarnecki|Czarnecki & Taylor PLLC|NOV 13, 2022

A Michigan implied consent driver’s license suspension is when the SOS automatically suspends a person’s license for refusing to take a chemical test when pulled over on suspicion of drunk driving. If the police arrest someone for DUI, they will ask you to submit to a chemical test to determine your blood alcohol content (BAC). If you refuse this test, your license will be suspended for one year. If you have a prior refusal on your record, or if you are under the age of 21, your license will be suspended for two years. There are some ways to avoid this suspension and you will need the help of an attorney.

What is ‘implied consent’?

Under Michigan’s Implied Consent Law, the SOS considers that all drivers are have given their ‘consent’ to a BAC test. If you refuse the test, six points will be added to your driving record and your license will be suspended for one year. SOS sanctions against your license are separate from any conviction for an OWI.

​If the police arrest someone a second time for an OWI, and the individual yet again unreasonably refuses the test, the SOS will add six points to their driving record, and suspend their license for two years. If you refuse to take a BAC test under the law, the police will destroy your license and issue you a paper 625g permit. The 625g allows you to drive until you resolve your case in court. You should know a jury found you not guilty of an OWI or the court dismissed the case,the implied consent suspension will still affect your license.

If the police issue you an implied consent driver’s license suspension, you can appeal the violation to the OHAO department of the Secretary of State. Timing is critical. You must mail the form given to by the police within fourteen days, or the SOS will automatically suspend your license.

Michigan implied consent hearing.

If you are facing an implied consent suspension, under the implied consent law, you can request a hearing with the Secretary of State’s Office within 14 days of receiving notice as given to you by the police.

At the hearing, a hearing officer will consider evidence and testimony to determine whether the suspension should be upheld or set aside. The two most important pieces of evidence in an implied consent hearing are the police report and officer’s testimony. The police report will typically contain information about the traffic stop, the officer’s observations, and any field sobriety tests that were conducted. The hearing officer will also consider testimony from the arresting officer and from any witnesses.

The four issues discussed at the implied consent hearing?

MCL 257.625f defines the issues litigated an implied consent hearing. The issues are limited to:

1. Whether the officer had reasonable grounds to believe that you were driving under the influence of drugs or alcohol, or both.
2. Whether the officer arrested you for a drunk driving offense; see MCL 257.625c(1).
3. Whether the officer advised you of your Michigan Implied Consent chemical test rights and,
4. If you refused the test, whether your refusal was reasonable.

What happens during the hearing?

An implied consent hearing is an administrative hearing, meaning that it is less formal than hearings conducted in the courts. Since the implied consent hearing is a Secretary of State matter, it is a civil and not a criminal hearing. A hearing officer, and not a judge, conducts the hearing.

If you are facing a Michigan Implied Consent Driver’s License Hearing, you may wonder if you need a lawyer. The answer is yes – having an experienced attorney by your side can make a huge difference in the outcome of your case.

There are many complicated rules and regulations involved in these types of hearings, and an experienced lawyer will know how to navigate them in order to get the best possible result for you. In addition, an attorney can cross-examine witnesses and present evidence on your behalf – something that you likely could not do on your own.

At the hearing, the police officer must prove that all four of the above listed issues support his case that you unreasonably refused the BAC test.

After opening statements, the arresting officer will testify about the traffic stop and circumstances regarding your arrest. The Hearing Officer may ask the officer follow-up questions. After the officer testifies, you or your attorney will cross-examine the officer.

Next, your attorney will call you as a witness. One benefit of having a lawyer on your side is that your lawyer will prepare you to testify. Your testimony must relate to the four issues discussed earlier.

After both sides have concluded their cases, the hearing officer will decide if the police officer satisfied the burden of proof for each of the four issues. If the officer wins, the SOS will suspend your license for one year. The hearing officer will tell you when the suspension begins. You can appeal a negative decision to the circuit court.

What are your Michigan chemical test rights?

I am a peace officer. You are under arrest for the offense of: (Read only the charge that applies)

• Operating a vehicle while under the influence of an alcoholic liquor or a controlled substance or a combination of both, or with a bodily alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

• Operating a vehicle while visibly impaired due to the consumption of an alcoholic liquor or a controlled substance or a combination of both.

• Operating with any presence of schedule 1 drugs or cocaine.

• Causing the death of another while operating a vehicle while under the influence of, or while visibly impaired by an alcoholic liquor or a controlled substance or a combination of both, or with an unlawful bodily alcohol content.

• Causing serious injury to another while operating a vehicle while under the influence of, or while visibly impaired by an alcoholic liquor or a controlled substance or a combination of both, or with an unlawful bodily alcohol content.

• Operating a commercial motor vehicle with bodily alcohol content of 0.04 grams or more but less than 0.80 grams per 100 milliliters of blood, per 210 liter of breath, or per 67 milliliters of urine.

• Operating a vehicle while less than 21 years of age and having any bodily alcohol content.

• Murder resulting from the operation of a motor vehicle.

• Manslaughter resulting from the operation of a motor vehicle. • Felonious Driving. • Negligent Homicide. • Refusing a Preliminary Breath Test if arrested while operating a commercial motor vehicle. • Endangerment (Operating while intoxicated with person under age of 16.)

CHEMICAL TEST RIGHTS

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) Breath Test? Or *Blood Test? or Urine Test? *MCL 257.625c(2) provides that a person afflicted with hemophilia, diabetes, or a condition requiring the use of an anticoagulant shall not be considered to have given consent to the withdrawal of blood.

Michigan Chemical Test Rights

Defenses used at the implied consent hearing

In Michigan implied consent hearings, the SOS stacks the odds against you. The hearing officer will often give more weight to the testimony of the police officer over that of the driver. The state favors the police over someone alleged to have committed a drunk driving offense.

However, this does not mean that the hearing officer will always rule in favor of the police officer’s testimony. If there are inconsistencies in the police officer’s testimony, or if the driver presents a strong case, the hearing officer may still rule in favor of the driver. Ultimately, it is up to the hearing officer to decide which witnesses to believe and how much weight to give their testimony.

The good news is that there are ways to level the playing field and give yourself a fighting chance. Here are some tips:

1. Hire an experienced attorney who specializes in these types of cases. This is one area where you really don’t want to go alone.

2. Be prepared to present evidence and witnesses on your behalf. The more solid your case is, the better your chances will be.

3. Remember that this is a civil hearing, not a criminal one. That means that the burden of proof is on the officer, not on you.

4. It’s important to remember that many people have successfully fought these suspensions and won with an attorney.

In an implied consent hearing, there are a few different defenses that your attorney can use to help you avoid a license suspension. One of the most common defenses is that the police officer did not have probable cause to believe that you were operating a vehicle while under the influence of drugs or alcohol. Another defense is that the officer did not give you the opportunity to take a chemical test, or that the officer did not properly advise you of the consequences of refusing to take a test. If any of these defenses apply to your case, your attorney will work to ensure that your license is not suspended.

If you face an implied consent violation, it is important that you contact an experienced attorney who can help you navigate the legal process and protect your rights.

1. Challenge the validity of your arrest for drunk driving

A police officer needs “probable cause” to arrest you for a Michigan drunk driving offense. “Probable cause” is defined as an amount of evidence that would cause a reasonably cautious person to believe that evidence exists that you committed a crime.When a police officer pulls you over on suspicion of drunk driving, they need to have sufficient evidence to believe that you are intoxicated to make an arrest. Probable cause can be based on the officer’s observations, including your behavior, appearance, and the smell of alcohol on your breath. The officer may also administer field sobriety tests, which can help determine if you are impaired.

If the officer has probable cause to believe that you are intoxicated, they will arrest you and take you into custody. Learn about the elements of a drunk driving offense. Once in custody, you will be required to submit to a chemical test to determine your blood alcohol content (BAC).

Your attorney must examine the police report and dash-cam to analyze the following:

• the officer’s reason for the traffic stop
• the officer’s administration and your performance during the field sobriety tests – Learn why sober people fail field sobriety tests
• the officer’s administration and your results of the Preliminary Breath Test (PBT)
• did you request your right to consult with an attorney prior to making a testing decision
• accuracy and reliability of the test results

2. Did you actually refuse the test?

Often, when someone asks the officer a series of questions, the officer becomes frustrated and declares that the person refused the test. Asking questions is not a refusal. It isn’t unreasonable for someone, arrested for an OWI, to ask questions.

This is especially true if the person has never been arrested for an OWI. If the police officer alleges someone refused by asking questions, you can challenge the refusal during the implied consent hearing.

3. Was the refusal reasonable?

Someone arrested for an OWI may consult with an attorney before taking a breathalyzer test. If the officer doesn’t comply with the request and you refuse to take the test, the refusal is reasonable.If an arrested person asks for reasonable accommodations in return for agreeing to take the test and the officer declines, this can also be challenged effectively.

For instance, if a person would like to speak to an attorney before taking the test and the officer refuses this reasonable request, courts have held that this “refusal” is reasonable and their license cannot be suspended.

4. Technical refusal

A technical refusal results when the police officer declares that someone did not take the test properly, such as not blowing hard enough into the breathalyzer. The breathalyzer cannot register a proper test if someone doesn’t perform the test correctly.

A technical refusal is when a person refuses to perform the breathalyzer correctly because they know they will fail the test and will be arrested for DUI. A technical refusal will also occur if the person is unable to provide a sufficient sample of their breath for the test. Either case is considered a technical refusal.

Negotiate with the prosecutor.

As explained earlier, the prosecutor, city attorney, and court cannot override an implied consent suspension. However, the prosecutor, city attorney, and police officer can withdraw from the hearing.

Most defense attorneys don’t realize there is a way to avoid the hearing by negotiating with the prosecutor and police officer. A police officer can withdraw a BAC refusal hearing no later than the date of hearing.

If the police officer withdraws the refusal or fails to appear for the hearing, there is no need to attend the implied consent hearing . You would not lose your license. The SOS would dismiss the case. Most attorneys aren’t aware this is an option.

First time implied consent restricted driver’s license.

If none of the above strategies work, another option exists. If the SOS suspends your license for six months because of a refusal, you can request a hardship restricted license through the circuit court. You must file the motion in the circuit court in the county where you live.

To win a restricted license, you will need to submit a substance abuse evaluation report with the motion. Most courts grant the motion, with enough assurances that the person will not drink alcohol.

Since the Michigan Attorney General’s Office responds to the motion, your attorney should negotiate with the assistant AG to reach a resolution. Usually the assistant AG will agree to a restricted license, however, you must have an interlock in your car for one year.

A hardship restricted license would also include the following restrictions on your ability to drive:

• Only allowed to drive to and from work
• restricted hours
• drive for medical emergencies
• allowed to drive to probation, community service, counseling

An attorney will help protect your license from a Michigan implied consent suspension.

If you’ve been arrested for drunk driving in Michigan, you may be facing an implied consent suspension. This is a suspension of your driver’s license that is automatic if you refuse to submit to a chemical test or if you take the test and fail. An experienced DUI attorney can help protect your license from an implied consent suspension.

An implied consent suspension can be very serious. If you’re facing this type of suspension, it’s important to have an attorney on your side who knows Michigan’s implied consent law. An attorney can review the facts of your case and determine if there are any defenses that can be raised to challenge the suspension.

An experienced DUI attorney will also be familiar with the Michigan Secretary of State’s hearing officer’s and process. An attorney can help you prepare for this hearing and give you the best chance of success.

If you’ve been arrested for drunk driving in Michigan, don’t do it alone. Hiring an experienced DUI attorney will give you the best chance of protecting your license from an implied consent suspension.

Czarnecki & Taylor can help you avoid a license suspension.

There are many reasons to choose Czarnecki & Taylor to protect your license from a Michigan implied consent suspension. We have the experience and knowledge to help you through this process.

Here are just a few of the reasons we are the best choice for you:

• We have a team of experienced attorneys who have two decades of experience and familiarity with Michigan implied consent laws and hearings.
• We will work tirelessly to build a strong defense on your behalf.
• We have a proven track record of success in defending against Michigan implied consent suspensions.
• We offer free initial consultations so that you can learn more about your rights and options before making any decisions.

If you are facing a Michigan implied consent suspension, contact Czarnecki & Taylor. We can help you protect your license and your future. One quality that sets Czarnecki & Taylor apart from other firms is our ability to handle complex cases that require specialized knowledge and experience. Our firm’s impressive track record for success and aggressive Michigan criminal defense is unparalleled for achieving exceptional results. Czarnecki & Taylor has a well-earned reputation among judges, courts, city attorneys, prosecutors, police, and other defense attorneys for defending our clients.

Winning an implied consent issue requires a skilled and experienced attorney to convince the hearing officer to find in your favor. Contact Czarnecki & Taylor online or call 1-586-718-2345 and one of our experienced implied consent attorneys will discuss your case.