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Breathalyzer Refusal and Implied Consent

Michigan, like many other states, has adopted what is known as an implied consent law. This means that by applying for and accepting a Michigan driver's license, you have given your consent to submit to a chemical test (breath, blood, or urine) if an officer arrests you on suspicion of drunk driving. The implied consent law also imposes penalties for refusing to submit to the chemical test.

Preliminary Breath Test vs. Chemical Evidentiary Test

It is important to understand that the implied consent law applies only to the chemical evidentiary test that is taken after you have been arrested. Oftentimes, in the course of a drunk driving investigation at the roadside, police officers will ask you to take a preliminary breath test (PBT). This test is taken on a small, handheld device.

While the results of a PBT may give the officer reason to suspect you of drunk driving, the results may not be used as evidence against you in trial. Refusing a PBT is not a criminal offense, though it is considered a civil infraction.

Refusing to submit to a preliminary breath test is considered a civil infraction, which carries a potential fine of up to $150 plus associated court costs. Contrary to what you may believe, there is no driver's license sanction and no points for refusing a preliminary breath test. There's no points, there's no suspension, there's no drivers license sanction. It's just a fine, very similar to a civil infraction—a speeding ticket

Penalties for Refusing a Chemical BAC Test

Once you have been arrested for drunk driving, you will be asked to take a chemical test to determine your blood alcohol content (BAC). Police may chemically test a breath, blood, or urine sample, though the breath test—often referred to as the "breathalyzer" test—is most common.

If you are arrested for drunk driving, you are required under Michigan's implied consent law to take a chemical BAC test. More often than not, this means a breathalyzer test, which is taken on a large machine at the police station.

If you refuse to submit to the chemical test, you will be considered in violation of the implied consent law. Once this happens, a report of refusal will be submitted to the Michigan Secretary of State's office. You will then have just 14 days from the date of refusal to contest the accusation.

Failure to respond within 14 days will result in an automatic six points added to your driving record and a one-year license suspension. If it is your second refusal within seven years, you will face an automatic two-year license suspension and have no right to a hardship appeal.

Criminal OWI Case vs. Implied Consent Hearing

If you submit an appeal to the Secretary of State within the 14-day window, you will be scheduled for an implied consent hearing to determine the future of your driving privileges. It is important to understand that the implied consent hearing is a completely separate matter from the criminal operating while intoxicated(OWI) charge. Because the implied consent action is taken by the Secretary of State and not the criminal court, the outcome of your criminal OWI case will have no bearing on your driver's license suspension. In fact, you can be acquitted of the OWI charge and still have your license suspended by the Secretary of State for an implied consent violation.

If you are found to be in violation at the implied consent hearing, you will receive six points on your driving record and a one-year license suspension. If it is your second refusal within seven years, the license suspension period will be two years.

Defenses in an Implied Consent Hearing

There are several possible defenses to be used when contesting an implied consent violation. For example, your attorney may argue that the officer did not have grounds to establish that you were drinking and driving, that you were arrested for a matter other than OWI, that your arrest was improper, that the chemical test rights were not properly read, or that your refusal was reasonable. Additionally, your attorney could argue that you have a fear of needles or that you were not allowed to speak with an attorney prior to taking the test.

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