A Michigan implied consent hearing is an informal hearing where the officer that arrested you for drunk driving provides testimony to prove that you unreasonably refused a breath blood or urine test. Before we move on with a further discussion of the hearing, let’s review the concept of implied consent, and how it applies in a Michigan drunk driving case.
The Legal Fiction of Implied Consent
Both the Michigan and the United States Constitutions provide that the police can’t search you, your home or your car without a warrant. Thus, before the police may proceed with a search of your breath, blood or urine, they must first obtain a warrant. However, there are many exceptions to this warrant requirement and consent is one of them. This is where the legal fiction of implied consent comes into play.
Because consent is always an exception to the search warrant requirement Michigan’s implied consent law sets up a legal fiction, which is that by accepting your driver’s license you have impliedly given your consent to a chemical test. This is true even when you were never literally asked, before taking the license, if you would consent to a breath or blood test in the future.
Can a Person Withdraw Their Implied Consent?
Yes. As with any other kind of consent search, the person giving implied consent can always withdraw that consent. Here’s how this works. After a person is arrested for DUI in Michigan they are read their implied consent rights and then asked if they will provide a breath blood or urine sample. If they say “yes” no warrant is required. If they say “no” a warrant must be obtained. Thus, while the police never literally ask the allegedly drunk driver if they would like to withdraw their implied consent, this is the essential purpose of the implied consent law. Either the fictional “implied” consent will become actual consent (saying “yes”) or the “implied consent” will be withdrawn (saying “no”).
So the whole idea is that implied consent becomes actual or literal consent when a person agrees to give a breath blood or urine sample, but before that happens they must be given the opportunity to withdraw their consent if they choose to do so.
What are the Consequences for Withdrawing Implied Consent?
If you withdraw your implied consent by refusing to give a breath blood or urine sample, then the Secretary of State will suspend your driving privilege for up to two years. Six points are also added to your driving record. However, you have a right to make the police prove that the suspension is proper, and that no defenses to the suspension apply. This is the purpose of an implied consent hearing.
To obtain an appeal you must file a demand for hearing with the Secretary of State. If you do not file this demand with the Secretary of State within 14 days of your arrest, then your driver’s license will be automatically suspended. Once you have successfully and timely filed your appeal, no driver license suspension will occur until after the Implied Consent appeal hearing. During the time between your refusal and the hearing you may drive with the same exact privileges you had before you were arrested for drunk driving.
If you win the Implied Consent hearing your license will not be suspended. However your license may later be suspended if you are convicted of intoxicated driving.
What are the Four Issues at the Implied Consent Hearing?
Michigan Complied Laws MCL 257.625f limits the issues or defenses that can be raised on an Implied Consent Appeal Hearing to the following:
- Whether the officer who arrested you had reasonable grounds to believe that you were driving under the influence of drugs or alcohol or a combination of both.
- Whether you were placed under arrest for intoxicated driving; see MCL 257.625c(1).
- Whether you were advised of your Michigan Implied Consent chemical test rights and,
- Whether your refusal was reasonable.
As you can see, it is irrelevant if you were actually or legally intoxicated. Consequently, you may not argue at an implied consent hearing that your blood test is unreliable. In fact, the results of the blood test are not relevant and should not even been admitted at an implied consent hearing.
The most common “defense” to implied consent is the issue of reasonableness. There are certain situations where your refusal to give consent to a chemical test will be forgiven. However, the lawyers at the Barone Defense Firm have won implied consent issues based on all four of the above issues. You should therefore discuss your implied consent case with one of the Michigan DUI Lawyers at the Barone Defense Firm during your free legal consultation.
What Should I Expect to Happen at My Michigan Implied Consent Hearing?
The Implied Consent Hearing will be conducted before an administrative law judge. Their title is not necessarily “your Honor,” but instead, they are more properly called a “Hearing Officer.” These administrative law judges are not elected but instead are hired and employed by the Michigan Secretary of State through the Michigan Attorney General’s office. The successful candidate for this position has usually demonstrated a comprehensive knowledge of the Michigan Implied Consent and drunk driving laws. For this reason a former Barone Defense Firm attorney, a Mr. Andrew W. Kowalkowski, is now an administrative law judge with the Michigan Secretary of State. A current Barone Defense Firm lawyer Ryan Ramsayer was also recruited by the Secretary of State for this position, but he elected to forgo the opportunity and he currently remains employed by the Firm.
Because this is an administrative law hearing it is less formal than what might occur in a District Court or Circuit Court where your underlying criminal matter will be pending. Also, the Implied Consent hearing is a “civil” and not a criminal matter, and in fact, the implied consent hearing and the underling criminal case for drunk driving are independent of one another. The police officer carries the burden of proof at this hearing, and they must offer testimony and evidence that demonstrates that all four issues above have been satisfied.
To begin, the Hearing Officer will turn on a recording device so that a record can be made. Then the hearing officer will call the case and ask everyone present in the room to identify themselves. Your attorney will place his or her appearance on the record at this time.
Next the hearing officer will ask the police officer and your attorney if they wish to make an opening statement. After opening statements are given or waived, the hearing officer will swear in the arresting officer by giving them an oath. The arresting officer will then testify about what occurred. In most instances the police officers appear without a prosecuting attorney to assist them. Since they are unrepresented, the Hearing Officer may assist them by asking them questions.
Your attorney will have the opportunity to cross-examine the police officer(s) at the conclusion of his or her testimony. After this initial testimony is complete, the Hearing Officer will ask the police officer if he or she has any additional witnesses. After all the police witnesses have been called the police officer will “rest” meaning they have offered all of the witnesses and testimony they have available.
After the police officer has rested, the defense attorney then has the opportunity to call witnesses and offer testimony. You could be called by your lawyer as a witness and you should discuss this well in advance of the hearing so that you and your lawyer can prepare any testimony that might be helpful. However, like the police, you may only offer testimony that is relevant to the above four issues. Your testimony is only relevant therefore if it shows that your arrest was not reasonable, that you reasonably refused the test, that you were not read your chemical test rights or that you were not arrested for one of the enumerated offenses.
Your attorney can call other relevant witnesses as well, but because your attorney has no burden of proof he or she does not need to present any evidence at all. After your attorney has either presented all of the evidence available or has waived the presentation of any evidence, your attorney will also rest.
After all the witnesses have testified and all the testimony has been offered by both parties, the Hearing Officer will ask if either party wishes to make a closing argument. Subsequently the hearing officer will make a ruling as to whether the police officer has met their burden of proof relative to all four of the above issues. If the police officer has met the burden or proof, then your license will be suspended. You will be given the start date of your suspension before you leave the hearing. Hearing Officers often give additional time before the suspension starts to allow your attorney to file an appeal of their decision.
Your Right to Appeal
You can appeal an adverse decision at an Implied Consent Hearing to the Circuit Court in the County where the arrest occurred. You have a right to either an equitable or legal appeal. You should discuss this appeal right with your lawyer who will be able to advise you whether a Circuit Court Judge might be able to restore some or all of the driving privileges you lost as a result of your unreasonable refusal.