If you are convicted of drunk driving in Michigan, and it is your first offense,
then your license will be suspended for 30 days.
DUI Frequently Asked Questions
[Note: What follows is a portion of Chapter 2 of Mr. Barone’s Book: The DUI Book - A Citizen’s Handbook on Fighting a Drunk Driving Charge].
2.8. If you don’t take field tests, will you lose your license?
In Michigan, there is no requirement for you to take any of the field sobriety tests, and if you politely refuse, there is no automatic license suspension. A roadside portable breath test or “PBT” is one type of field sobriety test. You may also refuse this test, but if you do, you will be charged with a civil infraction and receive a fine. However, there is no mandatory driver license sanction for refusing a roadside breath test. This is a significant difference between the refusal any of the field sobriety tests and the refusal of a blood, breath or urine test at the station house or jail where there is a mechanism for the police to automatically take your driver’s license. Having a driver’s license is a qualified right for you, one that can and is continuously reviewed by the State of Michigan. That means Michigan can take your license away, but only with an adequate reason, and only with notice to you and an opportunity to be heard.
Now, if you do not take the field sobriety tests, and you are eventually convicted of a OWI offense, you will lose your license as a part of that proceeding. However, that is likely months away from your stop, and may never occur if an experienced OWI attorney helps you with your case.
2.9. If you refuse to be tested at the station house or jail, will you lose you license?
Following your refusal to take the offered state testing of your blood, breath or urine, unless you are then able to get your driver’s license back at an administrative hearing, your driver’s license is automatically suspended for a year for a first refusal within 7 years, 2 years if a second refusal within 7 years.
If you refuse the blood, breath or urine tests asked of you by the police, and the police take your plastic driver’s license, you will be given a paper license that will allow you to remain driving until either you fail to make a request for an “implied consent” hearing within 14 days of your arrest, or you lose the administrative hearing when it is scheduled. This paper license is called a “DI-93,” and also includes instructions on how to schedule your hearing. Your OWI specialist can better advise you of your rights with this temporary license, and can request the hearing for you, that is so long as you retain him or her prior to the 14 day deadline.
2.10. If you take the state’s “chemical” test(s), will you get to keep your license?
In Michigan, your license will not be suspended or revoked unless and until you are found guilty of an alcohol related traffic offense. Upon learning of this conviction, the Michigan Secretary of State will take the appropriate licensing action, and will notify you of this sanction by mail. It is the court’s responsibility to notify the Secretary of State.
2.11. If you refuse the state’s tests, can you obtain a “work” permit?
If you have lost your license because of an implied consent refusal, and you have no prior implied consent refusals, then you may appeal the one year suspension to the circuit court. Under these circumstances, this is called a “hardship” appeal, and is for the purpose of obtaining a restricted driving privilege. You may also file a legal appeal if you believe the hearing officer was wrong in his or her determination that you inappropriately refused the chemical test. If the legal appeal is successful, then you obtain a full restoration of your driving privileges, but these appeals are rarely granted.
In order to obtain a limited or restricted driver’s license privileges, you must meet certain statutory criteria such as true necessity, no other travel sources available to you, and no family members who can provide transportation to you. This is at the discretion of the court, not your choice, not the choice of your attorney. Certainly, the basic requirements are that you have a job which requires you to drive and that you have no other reasonable way to get around without a driver’s license. It is also likely that the circuit court judge will want to see a substance abuse evaluation showing that you are at low risk of repeat behavior. Even if your hardship appeal is successful such a license typically severely restricts your ability to drive, determining where and when you can operate a vehicle.
2.12. Who can refuse to be tested?
Unless someone was serious injured or killed as a result of an accident related to your OWI arrest, you have the right to refuse to allow the police to take a blood, breath or urine sample from you. In other words, the drawing of your blood, or the taking of a urine or a breath sample by the police must typically be voluntary. However, if incapacitated, either because you are unconscious, incoherent or unable to consent for whatever reason (including being too intoxicated), you lose your right to refuse.
An increasing trend, now seen in more than a dozen states including Michigan, involves a situation where a person who refuses breath testing will now be restrained or even physically harmed to forcibly draw blood or use a catheter in the person for a urine sample, if the officer gets a warrant. Typically, this occurs when another person (as a result of your alleged bad driving) has been seriously injured or killed as a result of your accident.
2.13. Who should refuse to be tested?
Perhaps because of prior OWI convictions, or because even a single OWI conviction on your criminal record would be so devastating to your life, the punishment for any OWI conviction may be significantly worse than anything you face as a penalty from the refusal to be tested. It is certainly tougher for the police to prove most OWI charges against you when there is no scientific testing of any kind which the prosecution can use as evidence. In almost all circumstances, however, if you are arrested in Michigan, and you refuse a chemical test, the arresting officer will obtain a warrant to draw your blood. Thus, instead of a breath test result, you will be faced with a more accurate blood test and automatic license sanctions. Not only that, but the results of your independent test are also admissible at your trial. If your independent test confirms the State’s test, then your attorney will have two tests to confront and overcome at trial.
Also, keep in mind that the punishment against you for a refusal (an administrative loss of your driver’s license for a year for a first refusal in seven years) is automatic, while the punishment against you for the criminal charges of OWI must be subsequently proven in court beyond a reasonable doubt. Many other reasons may exist for the criminal charges against you to be dropped or reduced, or you might win at trial. Some case facts are so favorable that it is best for you to fight the charges against you, accepting no punishment for the OWI, while giving a blood, breath or urine sample as requested by the police.
Thus, if you are someone for whom even a single OWI on your record might be devastating, or if you have prior OWI convictions on your criminal record, especially if there is a chance you may place yourself or be placed in a position where you may be stopped and questioned regarding a subsequent OWI charge, it is a good idea to sit down beforehand with a well-seasoned OWI specialist and figure out what is best for you to do in these situations. Each circumstance and every client is different, and these sometimes subtle variances may make all the difference in your future.
2.14. Will your “refusal” be used against you in court?
Your refusal can typically be used against you in some way in your criminal OWI trial. The admission into evidence by the prosecution of your chemical test refusal is invariably detrimental and this admission has been held to be constitutional. Unless satisfactorily explained, the jury will normally assume that you refused to be tested because you had consumed too much alcohol and were afraid of failing the test, an assumption that the prosecutor seldom fails to bring to the jury's attention. In Michigan, though, there is a standard jury instruction that they not consider the refusal in any way, and that the only reason it came into evidence is to prove that a test was offered.
Nevertheless, as a practical matter when evidence of a refusal is admitted during the prosecution's case, it is often necessary for you to have to testify in order to effectively explain your reasons for refusing to submit. If your attorney gets to question you on all the things that may help your case, the prosecution gets to question you on all the things that may harm it. Obviously then, the admission into evidence of a chemical test refusal should be avoided, if at all possible. Most experienced trial lawyers handling OWI trials prefer to NOT put their clients on the witness stand.
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