Consequences of Refusing a Chemical Test during DUI Investigation
Implied Consent Law: If arrested for a drunk driving offense in Michigan, all drivers are considered to have given their consent to take a chemical test to determine your bodily alcohol content (BAC).
Purpose: The immediate purpose of the ‘implied consent law’ is to obtain the best evidence of blood alcohol content at the time of the arrest of the person; the long range purpose is, of course, to prevent intoxicated persons from driving on the highways.
Facts: An individual is driving South on Mission St., Mt. Pleasant, MI, and is stopped by a police officer. A DUI investigation is conducted; the driver will be first asked to provide a proof a license, registration, and insurance. Next, it is typical of an officer to ask if the driver had consumed any alcohol prior to operating the motor vehicle; the driver will then be asked to step out of the vehicle to perform a number of sobriety tests. Additionally, if the officer believes that the driver is intoxicated, he/she will ask the driver to submit to a Preliminary Breath Test (PBT). Once the driver is placed under arrest, he/she, in addition to the PBT, will be asked to submit to a chemical test; either blood or breath.
Ramifications: A first refusal results in a one-year suspension and the second or subsequent refusal in seven years results in a two-year suspension, six points are entered on the person’s driving record. A person who refuses the police officer’s request to take a chemical test has his or her picture license confiscated and is issued a temporary permit. MCL 257.625g(1). The nature of the permit will explicitly put an individual on notice that a test has allegedly been refused. The individual will then have 14 days from the date of the arrest to request a hearing. MCL 257.625f(1). Failure to do so results in an automatic one- or two-year suspension depending on the individual’s driving record.
With regard to refusal to submit to an evidentiary chemical test (breathalyzer), a hearing shall only cover the following issues set forth in MCL 257.625f:
1) Whether the peace officer had reasonable grounds to believe that Petitioner had committed a crime described in section 625c(1).
2) Whether Petitioner was placed under arrest for a crime described in section 621c(1).
3) Whether Petitioner was advised of the rights under section 625a(6).
4) Whether Petitioner unreasonably refused to submit to the test upon the request of the peace officer.
The peace officer has the initial burden to establish these issues while the Petitioner has the burden to prove and affirmative defense to a refusal, pursuant to 1999 MR9 R 257.310. The standard of proof is “preponderance of the evidence”. Under MCL 257.319b and 625f, after considering the evidence presented, the Hearing Officer will either impose a suspension/revocation of the license/operation privilege and all CDL endorsements, or take no licensing action. The Hearing Officer cannot issue a restricted license or work permit.
2) If officer fails to appeal, charges will be dismissed.
3) First time offenders can petition the Circuit Court for their restricted license.
Central Michigan Lawyer, Todd L. Levitt, has been representing individuals with suspended driver’s licenses’ for more than 18 years. Todd L. Levitt is considered to be one of the top attorneys in this area of law.
For a free consultation, call (989) 772-6000.
Written by: Adam Finn