Introduction to Michigan's Implied Consent Laws and Preliminary Breath Testing Generally
In Michigan, a driver’s license is a privilege not a right. Similar to several other states, the State of Michigan as adopted an “implied consent” law in order to assist in the prosecution of DUI/OWI offenses. Implied consent is a contract created between you and the State of Michigan when you apply for and accept a Michigan driver's license. Stated generally, this implied consent law requires that anyone who operates a motor vehicle on a highway open to the public is considered to have given their consent for a chemical test (blood, breath, or urine) to determine the amount of alcohol, controlled substance, or other intoxicating substance is in their system when an officer makes an arrest on suspicion of DUI/OWI. It is important to understand that the implied consent law applies only to the chemical test requested by the arresting law enforcement officer after your arrest, not before. Most Michigan drivers do not know that they have already provided consent for a chemical test, and as a result they are unaware of the punishments that can go along with a refusal of the chemical test. It is important to know what Michigan's implied consent law requires, its penalties for a violation, and what defenses are available if you are ultimately found by an officer to have refused a chemical test.
Michigan's Chemical Test Rights - What you Need to Know
A chemical test is administered (at the request of a law enforcement officer) when the officer has reasonable grounds to believe that the driver is operating a vehicle while intoxicated or impaired, or committed a traffic violation resulting in serious injury or death. When an officer observes some type of driving that is in their mind indicative of an intoxicated/impaired driver, that officer will stop the vehicle, ask the driver to perform some field sobriety tests as well as submit to a portable breathalyzer (“PBT”). Depending on the driver’s performance on these tests, the officer may place the driver under arrest. Once the driver is placed under arrest, the implied consent law comes into play. Most often the driver will then be transported to the police department/jail for a chemical test. The chemical test will either be a DataMaster DMT II Breathalyzer, a blood draw, or a urine test. The two most common chemical tests are the DataMaster DMT II Breathalyzer or a blood draw at the police department/jail or a local hospital. Prior to requesting a chemical test from the driver, Michigan Law requires that a law enforcement officer read the driver his/her chemical test rights. Those rights are included in the State of Michigan’s DI-177 form, the text of which is provided below:
A copy of an individual’s chemical test sample must be made available to the individual charged and their attorney. The results of the chemical test will first be given to the state police, and the prosecuting attorney investigating the crime.
What Happens if You Refuse a Chemical Test?
A refused chemical test requires immediate attention. If you refuse a chemical test, a written report (DI-93) will be sent to the Secretary of State by the police officer who requested that the test be taken. Upon receipt of that report, the Secretary of State will suspend your driver's license for 1 year for a first offense and add 6 points to your license. A second offense implied consent refusal within 7 years results in a 2 year suspension. This penalty is significant and has no affect whatsoever on the underlying criminal charge for which you were arrested. It is vital that you contact a lawyer experienced in implied consent refusals as you have only 14 days after the alleged refusal to file an appeal with State of Michigan's Office of Hearings and Administrative Oversight. All hearings are held before administrative law judges (i.e, Hearing Officers), who are licensed attorneys employed by the Michigan Department of State. If your appeal is not filed within that 14 day time period, you are precluded from appealing the implied consent violation, 6 points are added to your license, and the only option you have to get back on the road is through a hardship appeal to the Circuit Court.
Defenses in an Implied Consent Appeal
Even if you refused the chemical test, all hope is not lost. A skilled criminal defense attorney will review the evidence from your arrest and the request for a chemical test to identify the best possible defense. An implied consent hearing generally includes the petitioner (the driver making the appeal), his/her lawyer, the law enforcement officer who requested the chemical test, and the Hearing Officer. The burden of proof is on the police officer, except for any affirmative defense asserted by the petitioner. There are only four issues to be determined by the Hearing Officer at the implied consent hearing, these include:
Whether the police officer had reasonable grounds to believe that the person had committed the crime of DUI/OWI, Operating a Commercial Vehicle with an alcohol content of 0.04 grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine; reckless driving causing serious injury/death; moving violation causing serious injury/death, child endangerment (DUI/OWI with an occupant of the vehicle under 16 years of age), or refusing a PBT test if arrested while operating a commercial motor vehicle.
Whether the person was placed under arrest for a crime described above.
Whether the person refused to submit to the test upon the request of the officer, and whether the refusal was reasonable.
Whether the person arrested was advised of their chemical test rights.
The dismissal of the criminal court case has no bearing on the outcome of the implied consent appeal and there is no plea bargaining at an implied consent hearing. However, a skilled criminal defense attorney may be able to resolve your pending criminal case in conjunction with the implied consent violation, depending on the facts and circumstances of your case.
Michigan Implied Consent Attorney
If you and/or a loved one are facing a the loss of your license due to an implied consent refusal, you need a lawyer intrinsically familiar with the law and experienced in handling implied consent appeals. Time is of the essence when handling an implied consent appeal. Spencer Bondy has a record of success representing clients across the State of Michigan in implied consent appeals. To ensure that you and/or your loved one receive the best possible representation, contact Spencer today.