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Implied Consent and Breathalyzer Refusal Suspension

Some people may erroneously think that when they are stopped by the police and they are asked to take a breathalyzer test that they can refuse to do so. Unfortunately, that is not the case in Michigan. First, our driver’s license attorneys take a look at the statute behind “implied consent laws” that grants the legal authority to police officers to request that you submit to chemical testing.

Mich. Comp. Laws Ann. § 257.625c (West).

What is Implied Consent?

In Michigan, your mere presence on a public highway or place open to the general public like roads or parking lots means you have given your “Implied Consent” to submit to chemical testing. Therefore, it does not matter if you have an out of state driver’s license, if you are driving in Michigan your presence means you have given your consent to be tested for chemical substances by breath or urine. However, this consent does not extend to blood without a court order. There is still a necessity for a court order to take someone’s blood under protest.

If you refuse to take a breathalyzer test while pulled over under reasonable grounds that you have been in violation of a portion of the Michigan Vehicle Code, including driving under the influence, then certain things happen automatically. The police officer will submit an Officer’s Report of Refusal to Submit to Chemical Testing to the Secretary of State. You will also be furnished a notice that you have 14 days to contest the finding at an administrative hearing at the time of the alleged refusal. Additionally, the police officer may confiscate and destroy your driver’s license and issue you a paper permit. You may drive using the paper permit until after the hearing is resolved.

A Second Refusal: Holding Up Driving for a Second Year

As mentioned earlier, if you are pulled over and refuse a breathalyzer test the first time then you will automatically have your license suspended for a period of one year if you do not contest the civil infraction at an administrative hearing within 14 days. However, if you refuse a breathalyzer test a second time within seven years, then the suspension for the second offense increases to a mandatory two year suspension, Also, it will add another six points on your license. This means you will not be eligible for a restricted driver’s license after a year, when you otherwise would have been.

For example, if you refused chemical testing a second time in seven years, and ended up being convicted of a second OWI from the same incident, then the second OWI would carry a mandatory one year revocation of your driver’s license. Typically, after one year you would become eligible for a restricted driver’s license. However, due to the second refusal of chemical testing, there would still be one additional year of suspension left after the one-year revocation expired before you could be eligible for a restricted driver’s license. Therefore, no matter the circumstances, if you already have one refusal to submit to chemical testing on your record, it is better to submit to the test and contest the OWI in district court. Even if you are convicted of a second OWI you will be eligible to request a restricted driver license one year sooner.

Requesting a Hearing on the Merits

The officer is required to give the driver written notice of the right to a hearing on the merits about the civil infraction of refusal to submit to chemical testing. The notice should also indicate that failing to request a hearing will result in an automatic suspension of your license. Technically, the suspension will not take effect until after the 14 days to contest the civil infraction has expired. Therefore, your license will not actually be suspended until 14 days from the date of the alleged refusal to submit to chemical testing, or once the hearing has been resolved. Whichever date is later.

The Hearing

The hearing is performed in front of a hearing officer under oath and must be conducted within 45 days of requesting a hearing. The hearing only covers four key issues as follows:

  1. Whether the officer had reasonable grounds to believe that the person had committed one of the crimes described in 625(1), for example driving under the influence
  2. Whether the person was placed under arrest for a crime described in 625c(1)
  3. If the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable
  4. Whether the person was advised of their rights under section 625(6)

Defenses, Arguments, and Winning by Default

There are a multitude of defenses that may be presented at a hearing contesting a charge of refusal to submit to chemical testing. Depending on the facts of your particular case, it may be advantageous to argue that the officer did not have reasonable grounds to believe you had been drinking and driving; or that under the circumstances it was reasonable for you to refuse the request to submit to chemical testing. Additionally, your attorney can argue the arrest may have been improper. The hearing officer will preside over the case like a judge in a bench trial. This means he or she will make a unilateral decision on whether the officer has met all four elements of the civil infraction.

Additionally, there are quite a few questions an experienced attorney can ask the police officer about the fourth prong regarding properly informing you of your rights. Under MCL 257.625a(6) there is a list of rights that an officer must advise a person of to satisfy the fourth prong of the civil infraction of failure to submit to chemical testing. This list is similar to a Miranda warning that police officers must recite when placing someone under arrest. The rights include, advising you that a refusal will result in a suspension of your driver’s license, and a refusal will add six points on to your driving record. If the police officer does not take all of these necessary steps, then an attorney can convince a hearing officer that the police officer failed to meet his burden of proof for the fourth prong.

Finally, there is the possibility of a victory by default. By requesting a hearing in writing, you require the police officer to show up at the designated time and place specified by the Secretary of State. If the police officer that issued the charge does not show up to meet his burden of proof, then you will win by default. It is not uncommon to win a default victory due to something as simple as a scheduling conflict or a police officer forgetting about the hearing.

The key to victory in these hearings is to take every opportunity to make the police officer prove he or she has met his or her burden. It requires the skilled finesse of an experienced attorney to dissuade a hearing officer for finding in favor of the State and to dismiss the infraction instead. Contact us online or call 1-800-677-9795 and our implied consent attorneys will help prepare and defend you at your hearing.

Please note: Recently Administrative Hearings Section (AHS) changed their name to the Office of Hearings and Administrative Oversight. Common use of the name Office of Hearings and Administrative Oversight has not yet been widely accepted and the entity responsible for driver's license hearings is still referred to as AHS in almost all legal areas, which is why we continue to use the term "AHS" throughout our website. More information about this change can be found at the Michigan Secretary of State's website.

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