Refusal Of Chemical Tests

What Is The “Implied Consent Law” In Michigan?

When a Michigan resident applies for a driver’s license, he or she has “impliedly consented” to take a chemical test at the reasonable request of a police officer. If a police officer has reasonable suspicion to believe a Michigan driver is under the influence or impaired by drugs/ alcohol, the officer can require the driver to submit to a test of his breath, blood or urine, which will be used in criminal and administrative hearings against the driver.

Does An Officer Have The Right To Choose Which Test He Or She Is Requesting?

If the driver has diabetes or other enumerated physical ailments related to his or her blood, that driver is presumed not to have given consent to a blood test. Otherwise, the officer has the right to choose the type of chemical test. In the grand majority of cases, this will be a breath or blood test, as urine tests are not commonly administered by Michigan police agencies. 

I Have Been Arrested And Charged With OWI In Michigan. What Happens To My Physical Driver’s License At The Initial Stages?

After an arrest for OWI, if a person’s blood alcohol level is over Michigan’s legal limit (.08 for adults, lower for Minors and CDL holders), their license will be destroyed at the police station. Also, if a person is deemed to have refused a chemical test, his or her license will be confiscated and destroyed by the police agency. 

Conversely, if the level is under Michigan’s limit, or if blood results are unknown, the peace officer will typically return the physical license to the driver. 

Am I Given A Temporary License And Does This License Have Any Restriction?

A driver who has his physical license confiscated/destroyed is then given a paper permit, referred to as a DI-177, which acts as a driving permit while the OWI case is pending. There are no restrictions to this permit and the permit lasts until the criminal case is disposed via dismissal, conviction/plea, or acquittal.  Likewise, a driver who has refused a test is given a similar permit, referred to as a DI-93, which also acts as a temporary permit to operate while the refusal allegation is pending. 

How Long Is This License Valid For?

The DI-177 permit is indefinite. Unfortunately, because it is not a picture identification, drivers are often forced to get a passport or other valid picture identification to use in conjunction with the driving permit.

If I Have Refused A Breathalyzer Or Blood Test, How Many Days Do I Have To Request A Hearing and what does the Hearing Entail?

A driver must request a hearing at the Secretary of State to challenge the Implied Consent violation within 14 days of his alleged refusal or he will face an automatic suspension of his operator’s license for at least one year.  Requesting the hearing does not automatically stop a license suspension, it simply enables the driver an opportunity to challenge the refusal allegation at the Michigan Secretary of State in what is called an “Implied Consent Hearing.”  At this hearing, testimony is taken by the arresting officer(s)—who have the burden of proof—as to the circumstances of the refusal.  There are 4 elements the police officer must prove by preponderance of evidence, including whether the refusal was “reasonable.”

At the Implied Consent Hearing, the Secretary of State Hearing Officer/Judge will determine whether the officer proved a violation.  If so, the SOS will suspend the driver’s privileges for one year without restrictions.  If it’s the driver’s second refusal within 7 years, the SOS will suspend for two years.  Under the first scenario, the driver is eligible to file a Hardship/Equitable Appeal in the Circuit Court of the County of Arrest. 

What Is Considered A Refusal?

While refusals are defined by Michigan law, the best way to consider them is to put them into two categories. Operator refusals are those in which the police officers claim a driver either overtly refused to take a test or did something to subvert the test. Technical refusals are those in which the DataMaster or breath machine is not able to register a chemical test for some technical/mechanical reason.  Either of these can form the basis of an Implied Consent violation. 

If I Have Refused A Breath Or A Blood Test, What Will Happen Next To My Driver’s License?

As mentioned above, the officer will issue a paper permit, called a DI-93, which enables a person to continue having operational privileges until or unless the license is affected by the implied consent proceeding or a criminal case.  This paper permit has the heading of “Operator’s Report of Refusal,” and has instructions for a how a driver might request an Implied Consent Hearing. 

Is This The Same For The Roadside Breathalyzer Test As Well?

Refusal of the roadside test—the PBT-- is merely a civil infraction in Michigan. There are absolutely no license or criminal sanctions for a PBT refusal. Implied consent laws refer exclusively to the official chemical test (breath, blood or urine).

For more information on Refusal Of Chemical Tests In Michigan, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (734) 263-2780 today.

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