Michigan Implied Consent Law
by
Jared Austin on Apr. 24, 2013
Criminal DUI-DWI Motor Vehicle Traffic Criminal
Summary: A guide to Michigan's consent law including what it is, when you have to consent to a blood, breath, or urine sample, what your rights are, and how and when to have a hearing challenging a refusal to submit to an officer's chemical tests.
In Michigan, whether you are a
licensed driver or not, you are deemed to have given your consent simply by
driving a car on a public roadway to submit to chemical testing (breath, blood,
or urine) for the purpose of determining the amount of alcohol or the presence
of a controlled substance, or both, in your blood. The law, MCL 257.625,
applies to drivers who have been arrested on suspicion of drunk driving as well
as felonious driving, negligent homicide, manslaughter, or murder resulting
from operating a motor vehicle. These laws were enacted when people quickly
learned that the easiest way to get around the alcohol testing was to just
simply refuse to comply. Thus, the Michigan legislature adopted the implied
consent law to act as a deterrent and provide punishment for such refusal.
The police officer administering
the chemical test must give you certain warnings or advisements before you
submit to the chemical test. Sometimes they are spoken verbally but often they
are prepared on a form for you to read and sign indicating that you understand
each one. The officer must “substantially comply” with giving the warnings or
advisements before the penalties for refusal can be invoked. The following are
the warnings or advisements must be given:
1.
If you take a chemical test
at the officer's request, you may request a chemical test to be conducted by a
person of your choosing (at your own expense and provided the request is
reasonable)
2.
Results of the test are
admissible in a judicial proceeding and will be admissible as evidence of your
guilt or innocence
3.
You are responsible for
obtaining a chemical analysis of a test sample obtained at yoru own request
4.
If you refuse the officer's
request, a test will not be given without a court order, but the officer may
seek a court order
5.
Refusing the officer's
request will result in a suspension of your driver's license and six points
will be added to your driving record.
Is Refusing a Chemical Test a
Crime?
In several states, yes, but in
Michigan, no. At least, not yet.
Can My Refusal be Used as
Evidence Against Me at Trial?
Yes! Juries often conclude,
rightly or wrongly, that if you refused it was because you were drunk, even
though the judge will give them a jury instruction that states that evidence of
a refusal is only for the purposes of concluding if the chemical test was
offered and not for evidence of guilt. This can be very damaging. Many clients
have wrongly decided that such refusal keeps an official blood alcohol content
or BAC record out of their case only to find out how detrimental and costly, in
more ways than one, that refusal can be.
Can I be Forced to Submit to a
Chemical Test?
Only with a court order signed by
a judge. Otherwise, your compliance must be voluntary. The court order can give
the officer's the right to physically restrain you even to the point of using a
catheter for obtaining a urine sample.
Can Evidence Obtained From the
Chemical Test be Used Against me for Other Crimes?
No. The results cannot be used against
you in any non-DUI situations.
Can I Contest My Refusal?
Yes. You are entitled to an
administrative hearing called an Implied Consent Hearing. The hearing must take
place within 45 days of the arrest and at least five days notice of the hearing
must be given to the officer and the prosecutor. The state has the burden of
proving their case by a preponderance of the evidence (more likely than not,
50.1%) that a violation of the Implied Consent Law has occurred. These are the
factors that the state must prove:
1.
The officer had reasonable
grounds for a drunk driving investigation.
2.
You were placed under
arrest.
3.
Did you refuse the
officer's chemical test
4.
Was the refusal reasonable
5.
Were you advised of your
Implied Consent rights
With the burden of proof so long,
the state usually wins. The best way for a defendant to win is for the officer
to be a no-show which does happen sometimes. Although losing this battle can
sometime help you win the war because it provides you with the officer's
testimony under oath which can later be used at motions or trial in your DUI
case. It also locks the officer into a story which can later be used for
impeachment. Remember, losing the Implied Consent hearing has no bearing on
your DUI criminal case.
If you lose your Implied Consent
Hearing you can always appeal to the Circuit Court, but they are rarely
successful.
What Constitutes a Refusal?
It's not always as clear cut as
you think it is. It is important to inform the officer of any health or
breathing problems that you may have, particularly if given a breath test on
the DataMaster. For example, emphysema can cause a breath sample not to
register if you aren't able to breath for the requisite amount of time. The
officer may think you are refusing or purposely trying to throw off the machine
and many have been falsely accused of refusing this way.
What are the Penalties for
Refusal?
First Offense: License suspended
for one year and six points added to your driving record
Second Offense: License suspended
for two years with six points added to your driving record
A second offense is constituted
if it occurred within seven years of the first offense. For first offense
refusals, the license suspension can be appealed to the Circuit Court for
“hardship” which means they could grant you a partial or restricted license.
With the second offense, there is no hardship appeal.
