Breathalyzer Refusal and Implied Consent in Michigan

The concept of implied consent is fundamental to Michigan's drunk driving laws. By driving on Michigan roads, you are presumed to have given consent to submit to chemical tests—such as breath, blood, or urine tests—if law enforcement suspects you of driving under the influence (DUI). This consent acts as an exception to the Fourth Amendment's warrant requirement, which generally protects individuals from unreasonable searches and seizures.

Understanding Implied Consent and the Fourth Amendment

Michigan's implied consent law imposes a one-year license suspension on any driver who refuses a chemical test after a lawful OWI arrest, and a two-year non-appealable hard suspension on any driver who refuses a second time within seven years. These suspensions operate entirely independently of the criminal case. A driver can be acquitted of OWI in criminal court and still lose their license for a year because they refused the test. The suspension can be challenged, but only if a hearing is requested in writing within 14 days of the arrest, and understanding the four elements the officer must prove at that hearing is what determines whether the license is saved or lost.

However, because consent can always be withdrawn, the Implied Consent Law advisements play a critical role. When requesting a chemical test, law enforcement must inform drivers that they have the right to refuse the test. Officers are also required to explain the consequences of withdrawing consent, which include administrative penalties that may affect driving privileges.

Legal Framework and Testing Requirements

Under Michigan's Vehicle Code Section 257.625c, any person operating a vehicle on public roads is deemed to have consented to chemical testing upon arrest for suspected Operating While Intoxicated (OWI) or similar offenses. This includes tests to determine blood alcohol content (BAC) or the presence of drugs.

Types of Chemical Tests

Breath Tests:

Preliminary Breath Tests (PBTs), conducted on the roadside, are excluded from implied consent requirements. Refusal of a PBT results in a civil infraction with an associated fine, but no license suspension or points on your driving record.

After arrest, the most common form of testing requested is the Intoxilyzer 9000 breath test. This is typically administered at the police station after an arrest. Unlike the PBT request, this is an implied consent request. It is also the easiest for the police officers and produces instant results that may be used against you.

Blood Tests:

Considered more invasive and requiring a warrant unless exigent circumstances exist, blood tests are often used when breath tests are impractical or following accidents or where drug use is possible. Because they require additional effort, they are usually requested less frequently than breath tests. However, some police departments have chemical test policies that make blood testing the preferred testing method. It is up to the officer’s discretion as to which test type is offered.

Urine Tests:

Primarily utilized to detect drug use. These are less common but carry the same implied consent implications.

Penalties for Refusing a Chemical Test

Refusing to submit to a chemical test requested under the Implied Consent Law triggers serious penalties, independent of the outcome of a DUI charge. Key consequences include:

1. License Suspension: Refusal results in a one-year suspension for a first offense and a two-year suspension for subsequent refusals within seven years. No hardship appeal is available for second-time refusals.
2. Driving Record Impact: Refusal adds six points to your driving record.
3. Administrative Action: Refusal leads to an automatic license suspension, unless contested within 14 days of refusal.

These penalties reflect the state’s commitment to enforcing implied consent laws and discouraging refusal.

The Implied Consent Hearing Process

Drivers have the right to challenge the administrative penalties for refusal by requesting a hearing with the Michigan Department of State in writing within 14 days of their arrest. This hearing is separate from any criminal proceedings related to DUI charges.

Key Issues Addressed in the Hearing

At the hearing, the following issues are examined:

1. Whether the officer had reasonable grounds to believe the driver was under the influence.
2. Whether the driver was lawfully arrested for an offense requiring chemical testing.
3. Whether the officer provided the required implied consent advisements, informing the driver of their right to refuse and the consequences of refusal.
4. Whether the driver’s refusal was reasonable. The circumstances in which a breath test refusal might serve a driver's interests are specific and limited, and depend heavily on the individual facts of the stop and the driver's license situation.

If the hearing officer finds in favor of the driver, the suspension may be overturned. Otherwise, the penalties take full effect.

Paper License – DI 93 vs. DI 177

If you take the test and return a BAC result of .08% or higher, your driver's license will be confiscated and destroyed, and in its place you will receive a DI-177 form. The DI-177 and DI-93 forms serve different purposes in Michigan's Implied Consent Law. The DI-177 is issued when a driver voluntarily submits to a chemical test. The DI-177 acts as a temporary "paper license" while detailing the test results and arrest information.

In contrast, the DI-93 is issued when a driver refuses a chemical test. The DI-93 documents the refusal and initiates the 14-day window to file a request for hearing before the driver’s license suspension and six points on the driving record become automatically effective.

Unlike the DI-177, which is tied to the outcome of a criminal OWI case, the DI-93 triggers independent administrative action by the Secretary of State, emphasizing the serious consequences of a chemical test refusal and the need for immediate legal assistance.

How the Barone Defense Firm Approaches an Implied Consent Hearing

For many years, a reliable path to winning an implied consent hearing was the failure of the arresting officer to appear. Implied consent hearings are now conducted almost universally by video through Microsoft Teams, and officers appear in nearly every case. The default win from non-appearance is rarely available any longer. What wins these hearings today is careful preparation, careful listening, and disciplined restraint.

Officers appear at implied consent hearings without a prosecuting attorney. They must establish four elements on their own, and they sometimes fail to address one or more of them. The hearing officer is obligated to assist unrepresented parties, which means that if the hearing officer recognizes a gap in the officer's testimony, they may ask clarifying questions to fill it. This creates a specific tactical dynamic: aggressive cross-examination that tips the officer off to what they missed can invite the hearing officer to rehabilitate the testimony. The better approach is to listen carefully, identify the gap, and allow the officer to fail without assistance. An officer who testifies that a driver was stopped for speeding but cannot state the applicable speed limit has failed to establish the lawfulness of the stop, and that failure alone results in a dismissal. The goal is to recognize that moment and not foreclose it.

In some cases, the most effective strategy is negotiation rather than litigation. The Barone Defense Firm regularly works with prosecutors to seek withdrawal of the implied consent violation as part of a broader plea resolution in the underlying OWI case. Whether the hearing offers the best path or a negotiated resolution does, the analysis begins with a thorough review of the arrest record, the advisement, and the officer's documentation before the 14-day window closes.

There is one more reason to conduct an implied consent hearing that most attorneys miss entirely. Even where a driver's license is already revoked, making the administrative outcome relatively meaningless, the hearing still has value as a discovery tool. The officer must appear and testify under oath about the arrest, the advisement, and the alleged refusal. That sworn testimony, obtained before the criminal case goes to trial, functions as a deposition. Inconsistencies between the officer's hearing testimony and their later trial testimony are powerful impeachment material. The Barone Defense Firm conducts implied consent hearings in these circumstances precisely because of that value, while many attorneys skip them as pointless.

Patrick Barone has represented clients at implied consent hearings before the Michigan Secretary of State for more than three decades. That experience is not only procedural. His published analysis of breath flow graph histograms produced by evidentiary breath testing instruments gives him a technical lens that most defense attorneys cannot apply: understanding what the instrument's own diagnostic data reveals about how a test was administered, and whether the officer's characterization of the defendant's conduct during testing holds up against the machine's internal record. A driver's behavior during the test, and what the breath flow graph shows about that behavior, can be directly relevant to whether a refusal was reasonable. The difference between an attorney who reads the four-element statute and one who has litigated its application hundreds of times, with the underlying science in hand, is the difference between knowing what to look for and knowing what to do when you find it.

Criminal OWI Case vs. Implied Consent Hearing

Michigan drivers facing an Operating While Intoxicated (OWI) charge may find themselves navigating two separate legal processes: the criminal OWI case and the implied consent hearing. These proceedings are independent of each other, and their outcomes are not directly related.

When you refuse a chemical test, the Secretary of State initiates an administrative action against your driving privileges. If you submit an appeal within the 14-day window, you will be scheduled for an implied consent hearing to determine whether your license will be suspended. Importantly:

• Separate Jurisdictions: The implied consent hearing is handled by the Michigan Secretary of State and focuses solely on the refusal of the chemical test. The criminal OWI case, on the other hand, is adjudicated in criminal court.
• No Overlap in Outcomes: The outcome of your criminal case does not affect the implied consent hearing. For example, you could be acquitted of the OWI charge in court but still face a license suspension for refusing the chemical test.
• Different Standards of Evidence: The implied consent hearing applies a lower standard of proof compared to the criminal court, making it more challenging to avoid suspension.
• Because of these distinctions, drivers must carefully address both proceedings, often requiring separate strategies.

Commonly Asked Questions About Michigan’s Implied Consent Law

The 14-day deadline to request an implied consent hearing does not pause while you decide whether to call. The Barone Defense Firm is available 24 hours a day at 1-877-ALL-MICH (877-255-6424) for a free, confidential consultation, because in implied consent cases the clock is already running.

About the Author

Patrick Barone is the founding attorney of the Barone Defense Firm and the author of Defending Drinking Drivers, the nationally recognized DUI defense treatise published by James Publishing, including the chapter on implied consent law, administrative hearings, and appeal that Michigan defense attorneys use to learn how to handle these matters. When it comes to implied consent hearings, you do not have to hire the student. He has represented Michigan drivers at Secretary of State hearings for more than 30 years, litigated the four elements of the implied consent statute hundreds of times, and regularly negotiates withdrawal of implied consent violations as part of broader OWI plea resolutions. His published analysis of breath flow graph histograms produced by evidentiary breath testing instruments gives him a technical foundation for evaluating what an instrument's own diagnostic data reveals about how a test was administered. He is a graduate of the Gerry Spence Trial Lawyers College and has published more than 130 articles in peer-reviewed legal and professional journals.

Protecting Your Rights in Both Proceedings

Navigating both the criminal OWI case and the implied consent hearing requires a clear understanding of the processes involved. Each proceeding demands its own defense strategy, making experienced legal representation critical. At the Barone Defense Firm, we are equipped to guide you through both aspects, protecting your driving privileges and defending you against OWI charges.

Contact Us for Help

Facing a DUI charge or implied consent violation? Call the Barone Defense Firm at 248-306-9158 for a free consultation. Through the Firm’s 40 years of focused OWI defense experience, we will achieve the best result with you.