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Common Questions About Refusals in Drunk Driving Arrests
By Daniel T. Geherin
You’re leaving your favorite restaurant after drinking two glasses of wine and are suddenly pulled over by police. Fear, anxiety, and confusion set in. Suddenly, the officer is barking out questions and commands, and before you know it you’re outside your car and performing very difficult tests to check your sobriety. This is a common scenario if you’re facing an OWI arrest in Michigan. You probably have these questions racing through your mind:
“Am I allowed to refuse to answer the officer’s questions?”
“Can I refuse to take the field sobriety tests?”
“What if I refuse the breath or blood test?”
“Can the refusal actually be worse for me?”
Geherin Law Group is a criminal defense firm which specializes in defending drunk driving cases, so every day we answer questions like these from clients who have been arrested for DUI. Unlike other firms who “dabble” in criminal and drunk driving cases, our firm is a specialized, targeted, trial-based criminal justice firm with a long and proven track record of success in winning refusal/Implied Consent arguments. Our firm’s founder, Dan Geherin, a criminal defense attorney, and the published author of The Michigan Drunk Driving and Driver’s License Handbook, which has a chapter dedicated to Implied Consent/Refusal defense. Dan addresses some of the common refusal questions below:
Refusal to Answer Questions:
Under Federal and Michigan law, you can’t be forced to incriminate yourself. You can choose whether to “cooperate” with law enforcement and answer questions aimed at incrimination (often called “interrogation”). During an OWI investigation, the officer is generally asking basic questions (i.e., “Where are you coming from?” “How much have you had to drink?”). Almost every driver chooses to answer those questions. But, legally speaking, you don’t have to answer those questions and can choose to remain silent and/or consult with an attorney before speaking with the police. Will this frustrate and anger the officer? Probably, yes. Most police officers have dealt with this before and will proceed with their investigation professionally. Will this get a person out of an arrest? Probably, not. The officer will still likely arrest you and seek a warrant (or consent) for your breath or blood.
Refusal to Participate in Field Sobriety Tests:
Legally you can’t be forced to incriminate yourself. The police can’t force you to perform field tests (such as walking, standing, and speaking tests; referred to as “Standardized Field Sobriety Tests”). So, if you refuses to participate in SFSTs, the police must make their determination to arrest you based on other factors (i.e., driving; objective symptoms such as smell, bloodshot eyes, and balance). The police almost always make the decision to arrest in this scenario rather than allowing someone to “get out of” an arrest for OWI.
Refusal to take PBT:
At the roadside, police will often ask a driver to take a Preliminary Breath Test (PBT), a handheld breath test which is largely inadmissible in court. A driver has the absolute right to refuse a PBT, and the police cannot (and will not) administer a PBT without consent. Failure to take a PBT is a civil infraction, not a criminal offense or administrative violation, and will result only in a fine. It will not result in a suspension to a person’s driver’s license. If a person refuses a PBT, the police must make their determination to arrest based on all other observations. However, if you take a PBT and blows over the legal limit, that result ALONE can justify your arrest.
Refusal to take a Data Master or Blood Test:
Every Michigan driver’s license holder “impliedly consents” to have his/her breath, blood or urine tested upon reasonable request of a peace officer during an OWI investigation. If you refuse a police officer’s request for an official chemical test, your license may be automatically suspended for one year. This is called an “Implied Consent Refusal,” and your prompt response to this allegation is crucial. We strongly suggest you call us immediately after a refusal allegation so that you don’t miss important deadlines.
It’s important to note that police officers must have reasonable grounds to request the chemical test, and they must also follow regulations on how and what they advise the driver about a potential refusal. It’s also important to note that there are some reasonable and acceptable grounds for refusing these tests. Not all refusals are guaranteed to be violations of the Implied Consent law, and the actions of the police officer can be challenged at the Secretary of State and in court if necessary.
If your license has been suspended for an Implied Consent refusal, we may be able to seek restricted driving privileges (i.e., to and from work) from a Circuit Court judge in the county where your arrest occurred. This is called a “Hardship Appeal,” and our firm has filed and won hundreds of them in the past 25+ years. We can also challenge the legitimacy of the refusal at the Circuit Court level (this is called a “Legal Appeal”), many of which we have filed and won in courts throughout Southeastern Michigan.
If a police officer alleges that you refused a chemical test, please call our criminal defense attorney in Ann Arbor immediately to discuss how we can fight this refusal and best protect your privilege to drive. Or, if you have questions about refusals in general, please don’t hesitate to call or visit our site for a free consultation.
The Geherin Law Group: Personal Attention, Personal Options, Personal Justice.
You’re leaving your favorite restaurant after drinking two glasses of wine and are suddenly pulled over by police. Fear, anxiety, and confusion set in. Suddenly, the officer is barking out questions and commands, and before you know it you’re outside your car and performing very difficult tests to check your sobriety. This is a common scenario if you’re facing an OWI arrest in Michigan. You probably have these questions racing through your mind:
“Am I allowed to refuse to answer the officer’s questions?”
“Can I refuse to take the field sobriety tests?”
“What if I refuse the breath or blood test?”
“Can the refusal actually be worse for me?”
Geherin Law Group is a criminal defense firm which specializes in defending drunk driving cases, so every day we answer questions like these from clients who have been arrested for DUI. Unlike other firms who “dabble” in criminal and drunk driving cases, our firm is a specialized, targeted, trial-based criminal justice firm with a long and proven track record of success in winning refusal/Implied Consent arguments. Our firm’s founder, Dan Geherin, a criminal defense attorney, and the published author of The Michigan Drunk Driving and Driver’s License Handbook, which has a chapter dedicated to Implied Consent/Refusal defense. Dan addresses some of the common refusal questions below:
Refusal to Answer Questions:
Under Federal and Michigan law, you can’t be forced to incriminate yourself. You can choose whether to “cooperate” with law enforcement and answer questions aimed at incrimination (often called “interrogation”). During an OWI investigation, the officer is generally asking basic questions (i.e., “Where are you coming from?” “How much have you had to drink?”). Almost every driver chooses to answer those questions. But, legally speaking, you don’t have to answer those questions and can choose to remain silent and/or consult with an attorney before speaking with the police. Will this frustrate and anger the officer? Probably, yes. Most police officers have dealt with this before and will proceed with their investigation professionally. Will this get a person out of an arrest? Probably, not. The officer will still likely arrest you and seek a warrant (or consent) for your breath or blood.
Refusal to Participate in Field Sobriety Tests:
Legally you can’t be forced to incriminate yourself. The police can’t force you to perform field tests (such as walking, standing, and speaking tests; referred to as “Standardized Field Sobriety Tests”). So, if you refuses to participate in SFSTs, the police must make their determination to arrest you based on other factors (i.e., driving; objective symptoms such as smell, bloodshot eyes, and balance). The police almost always make the decision to arrest in this scenario rather than allowing someone to “get out of” an arrest for OWI.
Refusal to take PBT:
At the roadside, police will often ask a driver to take a Preliminary Breath Test (PBT), a handheld breath test which is largely inadmissible in court. A driver has the absolute right to refuse a PBT, and the police cannot (and will not) administer a PBT without consent. Failure to take a PBT is a civil infraction, not a criminal offense or administrative violation, and will result only in a fine. It will not result in a suspension to a person’s driver’s license. If a person refuses a PBT, the police must make their determination to arrest based on all other observations. However, if you take a PBT and blows over the legal limit, that result ALONE can justify your arrest.
Refusal to take a Data Master or Blood Test:
Every Michigan driver’s license holder “impliedly consents” to have his/her breath, blood or urine tested upon reasonable request of a peace officer during an OWI investigation. If you refuse a police officer’s request for an official chemical test, your license may be automatically suspended for one year. This is called an “Implied Consent Refusal,” and your prompt response to this allegation is crucial. We strongly suggest you call us immediately after a refusal allegation so that you don’t miss important deadlines.
It’s important to note that police officers must have reasonable grounds to request the chemical test, and they must also follow regulations on how and what they advise the driver about a potential refusal. It’s also important to note that there are some reasonable and acceptable grounds for refusing these tests. Not all refusals are guaranteed to be violations of the Implied Consent law, and the actions of the police officer can be challenged at the Secretary of State and in court if necessary.
If your license has been suspended for an Implied Consent refusal, we may be able to seek restricted driving privileges (i.e., to and from work) from a Circuit Court judge in the county where your arrest occurred. This is called a “Hardship Appeal,” and our firm has filed and won hundreds of them in the past 25+ years. We can also challenge the legitimacy of the refusal at the Circuit Court level (this is called a “Legal Appeal”), many of which we have filed and won in courts throughout Southeastern Michigan.
If a police officer alleges that you refused a chemical test, please call a criminal defense attorney immediately to discuss how we can fight this refusal and best protect your privilege to drive. Or, if you have questions about refusals in general, please don’t hesitate to call or visit our site for a free consultation.
The Geherin Law Group: Personal Attention, Personal Options, Personal Justice.