Implied Consent

Implied consent is a notion and a law in Michigan that says that everyone who has been licensed, in other words driving on the roads of Michigan, has implied their consent to provide a breath or blood or urine sample at an officer's request if they have been arrested for operating while intoxicated or a number of other offenses. When you apply for a license in Michigan, you are giving your consent to a breath, blood or urine test on a reasonable request of a police officer.

In short, when you applied for a license you didn't actually say, "I consent," which is why the consent is implied. So the notion behind it is that just by driving we have implied our consent to give that sample.

If the police officer at the roadside asks you for a breath, blood or urine test and you refuse, then the likelihood is the police officer will take you to the hospital, obtain a warrant, and the doctor will draw the blood based on the warrant that the police officer has just gotten. So if you don't impliedly consent or offer your verbal consent the police officer will still get their test, but it will be done by a warrant.

Also, if anyone refuses, and it is not considered a reasonable refusal—and there are four different factors of them—if those four factors are all met then a hearing officer at the secretary of state, or if there is not a hearing ever scheduled, the license would be suspended for a period of a year, and six points are automatically added to your license.

You will get a notice from the Secretary of State telling you that your license is subject to suspension as a result of an implied consent violation, and they will ask if you want a hearing. The 14-day notice is you have to get back to them in 14 days. It may very well be that the hearing won't be scheduled for another four or five weeks after the date you originally filed your request for hearing.

You cannot be denied a hearing, if it is a first offense. If it is a second offense within a seven-year period, they can deny you. But if it is a first offense, they cannot.

During that period of time, unless and until there is an adjudication at that hearing, your license is still in effect, and you will have no restriction on your ability to drive until after you go to that hearing and get notified of an unsatisfactory result. And again, in that case they generally give you a couple of weeks before the suspension becomes effective.

Present at the meeting are an employee, what they call a hearing officer. He's not a judge—he is an employee of the Secretary of State's office. And the police officer is generally present, and that's the parties at the hearing. It's usually done in an office of the Secretary of State.

If you do not live in a major metropolitan area, the likely event is that you will go into an office and there will be a closed circuit TV. You and your attorney and the police officer will be present in the room; the hearing officer will likely be in his office in Lansing or in Lavonia, and they will conduct the hearing through a closed circuit TV feed.

It could be up to five or six weeks before you have a hearing, depending on scheduling availability both for the police officer and if you have an attorney, for your attorney. Or if you have got a date that you absolutely could not make it, they will generally afford you one opportunity to adjourn the hearing.

The implied consent hearing is conducted by an employee of the Secretary of State's office. They have four questions they ask you.

Basically they ask you, or they want to determine if there was probable cause to believe a crime was committed; they want to determine that the police officer did in fact advise the petitioner, who would be the person appealing this choice that he or she had been arrested; they would want to find out whether or not they were advised of their obligation to take a test under the Michigan Implied Consent law; and they would want to find out whether or not, after having been so advised, the person refused to take the test.

If they find those four things, they will suspend your license for one year.

And you will have an opportunity to appeal that to the circuit court for a restricted drivers license, but the outcome of that would depend on what happens at the circuit court. They basically refer to it as a hardship appeal, and you are not appealing the decision that your license is subject to being suspended as a result of the implied consent hearing; you are rather petitioning the court to say, "I need my drivers license because it will impose a hardship, I'll lose my job, I wont be able to do this or that."

Now, if you were to feel that the hearing officer had made a mistake in terms of finding those four issues, you could appeal that directly, saying that the decision of the hearing officer was erroneous. But you have to remember that at that hearing, it is a probable cause hearing, it's not beyond a reasonable doubt. So the standard is more likely than not that this happened.

And the second thing is that the rules of evidence do not strictly apply, so hearsay and other things can be admitted in that hearing. So it is very difficult to successfully appeal that hearing saying there was an abuse of discretion—but not impossible, but it is a very hard row to hoe and a high bar to overcome.