Breathalyzer Refusal and Implied Consent

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

However, because consent can always be withdrawn, the Implied Consent Law advisements play a critical role.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. Please note that there is almost no reasonable justification for refusal.

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.

Building a Defense Against Refusal Penalties

Defending against implied consent violations and associated DUI charges requires careful legal analysis. Some potential approaches include:

• Questioning the legality of the traffic stop or arrest.
• Arguing that the officer failed to provide clear advisements about the consequences of refusal.
• Demonstrating that the refusal was not knowingly or voluntarily made, such as in cases of confusion or coercion.
• Convicing the officer or prosecutor to drop the implied consent violation charge
• If all else fails, file a hardship appeal to get restricted driving privileges in place of the one-year suspension

Protecting Your Rights with Experienced Legal Support

Michigan’s Implied Consent Law is complex, and its penalties can have far-reaching consequences on your life. From potential license suspension to difficulties with insurance premiums and employment opportunities, the impact can be significant. However, these consequences are not inevitable.

At the Barone Defense Firm, we understand the intricacies of implied consent violations and DUI cases. Our team of focused DUI defense attorneys will make sure every opportunity to minimize the consequences on your life is seized. Whether you're facing a refusal hearing, administrative penalties, or criminal charges, we provide comprehensive legal support tailored to your unique circumstances.

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

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.