Michigan drivers suspected of intoxicated driving based on the consumption of alcohol, marijuana, or other intoxicating substances, must submit a breath, blood or urine sample upon the reasonable request of a peace officer. A failure to provide such a sample will result in the police obtaining a warrant for your blood. You will also be charged with an OWI along with a separate charge for an alleged violation of Michigan’s implied consent law. This will result in the police destroying your Michigan driver’s license. The officer will then issue you a 625g paper permit, also called a DI-93, and this will allow you to drive temporarily.
You have a right to appeal the police officer’s determination that you violated the implied consent law, and such appeals go before the Administrative Hearings Section of the Michigan Secretary of State. You or your attorney must mail the request for this appeal hearing within 14 days of the date of arrest. A failure to do so will result in your driving privileges being automatically suspended for at least one year.
According to the Michigan Implied Consent Law, there are only four issues to be resolved at the appeal hearing:
- Whether the peace officer had reasonable grounds to believe that you committed an intoxicated driving crime,
- Whether you were placed under arrest for such a crime,
- That you unreasonably refused to submit to a chemical test upon the request of the officer, and;
- Whether you were advised of your implied consent rights.
Usually, the only witness at an implied consent hearing is the police officer who stopped and arrested you, and if different, also the officer who read you your chemical test rights. The appellant (person arrested for intoxicated driving) usually does not testify. However, there are instances when the arrested person would testify, such as to establish that their refusal was reasonable.
If you simply said “no” or in any other way refused because you thought it was in your best interest, or because you didn’t understand the law, then your refusal was likely not reasonable under the law. This would mean there is probably no reason for you to testify, but you should discuss this with your lawyer before your hearing to be sure your testimony will not be needed. If you don’t testify then there is little you can do to “prepare” for the hearing.
When you attend the hearing, it is always best to look and act professionally. Otherwise, you won’t be called upon to say anything unless your lawyer makes the decision to offer your testimony in support of your case. Once again, it’s worth mentioning that unless you testify to establish that your refusal was reasonable, or because your testimony bears on any of the other three issues, then your testimony will not be needed. And, it’s always up to you and your attorney to decide if you testify. No one can force you to testify at the hearing.
Also, the burden of proof is on the police. This means that you and your attorney can literally sit at the hearing and do nothing, and unless the police officer establishes his/her burden of proof as to all four issues, then you will win the appeal. Winning means only that your license will not be suspended for violation of the implied consent law. Winning an implied consent hearing has no bearing on your underlying criminal case for intoxicated driving.
It’s unlikely that your lawyer will literally do nothing, but if he/she recognizes a police error in establishing their burden, this can be the best strategy. Nevertheless, attorney preparation is always the key to winning. If you are represented by an attorney, then your attorney will do all the talking at the hearing, make any necessary opening or closing arguments, cite the applicable law to the court and will cross-examine the police witnesses, all in an attempt to win your case. If you still do not win the appeal, you can file another appeal with Circuit Court in an attempt to restore your driving privileges. As with all aspects of this complex law, you should discuss this appeal with your lawyer.