Anyone in Michigan who refuses a breath or blood test following a DUI arrest faces a 1-year suspension of his or her driver’s license. Upon release, he or she will be issued a temporary (paper) driver’s license that is entitled “Officer’s Report of Refusal to Submit to Chemical Test.” If a hearing is not requested, within 14 days, as directed on the form, then the person’s driver’s license will AUTOMATICALLY be suspended for 1 year. This is independent of anything that does or does not happen as the result of the DUI charge (if any).
Under Michigan law, when a person accepts a driver’s license, he or she agrees to submit to a chemical test when asked to do so by a law enforcement officer. This is called “implied consent.” That consent is also implied for anyone who drives in this state with a valid license issued elsewhere. The difference is that if someone with an out-of-state (or Canadian) license refuses a breath test, his or her privileges to use that license in Michigan will be suspended for a year. Of course, his or her home state (or province) will almost certainly impose some kind of driver’s license penalty, as well.
When someone refuses a breath or blood test, it is known as an “Implied Consent refusal.” This is very different from refusing a preliminary breath test at the side of the road. That’s called a “PBT refusal.” The term “PBT” means “preliminary breath test.” A PBT refusal is a civil infraction. It does NOT carry the possibility of any license suspension. Our focus in this article will be on a person’s refusal to take the “big” test that is requested after he or she has been arrested.
To be more specific, we’re going to confine our examination to an Implied consent refusal in 1st offense DUI cases. In that context, one of the most common things people say is that they didn’t know that refusing a breath or blood (chemical) test would result in the suspension of their driver’s license. Of course, it’s very possible that someone have forgotten about it, but the whole “Implied Consent” thing is a subject covered in all driver’s ed courses.
Beyond that, whatever someone knows or remembers (or not) doesn’t matter. Legally, a person’s consent to take a chemical test is assumed to have been given in advance. That’s why it’s called “Implied Consent.” It means a person’s consent to submit to a chemical test following a DUI arrest is given as a condition of accepting or using a valid driver’s license in Michigan. In practice, this means that an Implied Consent violation is really the poster child for the notion that “ignorance of the law is no excuse.”
That law is simple: The Michigan Secretary of State (SOS) MUST suspend a person’s license for a year if he or she refuses a breath or blood test following a DUI arrest. This is automatic, unless he or she requests – and then wins – a challenge to that suspension at a formal Implied Consent hearing before the SOS. There are a few defenses that one can assert, and we’ll get to them shortly. However, being unaware of the penalties for refusing a breath or blood test is NOT one of them, nor is having been too drunk to comprehend one’s legal obligation to take it.
Here is the actual law:
(b) A person arrested for a crime described in section 625c(1) [meaning a DUI or other alcohol-related traffic offense] must be advised of all of the following:
(i) If he or she takes a chemical test of his or her blood, urine, or breath administered at the request of a peace officer, he or she has the right to demand that a person of his or her own choosing administer 1 of the chemical tests.
(ii) The results of the test are admissible in a judicial proceeding as provided under this act and will be considered with other admissible evidence in determining the defendant’s innocence or guilt.
(iii) He or she is responsible for obtaining a chemical analysis of a test sample obtained at his or her own request.
(iv) If he or she refuses the request of a peace officer to take a test described in subparagraph (i), a test must not be given without a court order, but the peace officer may seek to obtain a court order.
(v) Refusing a peace officer’s request to take a test described in subparagraph (i) will result in the suspension of his or her operator’s or chauffeur’s license and vehicle group designation or operating privilege and in the addition of 6 points to his or her driving record.
That’s how the law puts it. The law enforcement officer is supposed to read a person’s chemical test rights from the official DI 177 form. It is reprinted in relevant part below:
CHEMICAL TEST RIGHTS
Read the rights that follow in their entirety.
I am requesting that you take a chemical test to check for alcohol and/or controlled substances or other intoxicating substances in your body. IF YOU WERE ASKED TO TAKE OR TOOK A PRELIMINARY BREATH TEST BEFORE YOUR ARREST, YOU MUST STILL TAKE THE TEST I AM OFFERING YOU.
If you refuse to take this chemical test, it will not be given without a court order, but I may seek to obtain such a court order. Your refusal to take this test shall result in the suspension of your operator’s or chauffeur’s license and vehicle group designation or operating privilege, and the addition of six points to your driving record.
After taking my chemical test, you have a right to demand that a person of your own choosing administer a breath, blood, or urine test. You will be given a reasonable opportunity for such a test. You are responsible for obtaining a chemical analysis of a test sample taken by a person of your own choosing.
The results of both chemical tests shall be admissible in a judicial proceeding, and will be considered with other admissible evidence in determining your innocence or guilt.
Will you take a: (Select the appropriate test from the following list)
ShapeBreath Test? or *Blood Test? or Urine Test?
*MCL 257.625c(2) provides that a person afflicted with hemophilia, diabetes, or a condition requiring the use of an anticoagulant shall not be considered to have given consent to the withdrawal of blood. *
While all of this is important, we’re most concerned here with a person’s refusal to submit to the test. Almost every time that happens, the police will obtain a warrant for a blood draw. This is important, because there is a lot of misunderstanding about whether it’s strategically better to submit to a breath (or blood) test, or not, in the context of a DUI case.
That core of that misunderstanding is that if a person doesn’t take the breath or blood test, the police won’t have enough evidence to prosecute him or her. That’s almost entirely misguided.
As noted above, almost every time someone refuses a chemical test, the police WILL obtain a warrant for a blood draw. Every court has a magistrate available to it 24 hours per day to review and then sign these warrants. Part of that job is being awakened at all hours of the morning and going to the fax machine to retrieve and review these police requests. Unless some correction(s) need to be made to the warrant request, the magistrate will sign off on it. That will allow the police to obtain a blood sample from the person arrested.
To be clear, and after more than 30 years as a Michigan DUI lawyer who has handled thousands upon thousands of drunk driving cases, I have only seen a few (as in no more than 3 or 4) cases where a person refused a chemical test and the police did not get a warrant. To put that in percentages, it means that in about 99.9% of all cases where a person refuses a breath or blood test, the police will get a warrant for a blood draw.
Those are horrible odds to be up against.
By contrast, we are hired every week, and often several times per week, by someone facing a DUI who has refused a chemical test.
Fortunately, there are things that can be done to save a person’s ability to drive, even when a he or she is facing an Implied Consent refusal. The form provided by the police (it serves as a temporary driver’s license) advises that the license suspension will go into effect automatically UNLESS a person requests a hearing within 14 days.
Of course, the person must also win that hearing to avoid the suspension.
There are 4 legal issues listed on the form. These are the ONLY things a person facing an Implied Consent refusal can challenge. As we’ll see, even if a person loses at the Secretary of State appeal, or otherwise doesn’t request a hearing, he or she can still go to court and request restricted driving privileges thereafter.
In the real world, this is how the overwhelming majority of people work around an Implied Consent refusal.
If a person challenges the Implied Consent refusal at the Secretary of State, then, as noted, he or she can only do so as to any or all of the 4 following issues:
1. Whether the peace officer had reasonable grounds to believe that you committed a crime described in MCL 257.625c(1).
2. Whether you were placed under arrest for a crime described in MCL 257.625c(1).
3. If you refused to submit a chemical test upon the request by the peace officer, whether the refusal was reasonable.
4. Whether you were advised your rights under MCL 257.625a.
To keep this article of readable length, we can summarize these 4 issues as follows:
1. Did the officer have a reasonable basis to make contact with the person facing a DUI? This is NOT a finding of probable cause. It would be more accurate to frame this as a question of whether someone can prove that the police had NO legal reason to pull him or her over, or make otherwise make contact.
2. This simply means that a person was taken into custody.
3. As we stated above, not understanding one’s rights and obligations to submit to a chemical test, even if it’s because the person was really drunk, is not a defense. It would be reasonable for a person to refuse a blood draw if the person taking the blood didn’t have a new needle, and offered to clean up on that had been previously used. Similarly, if the officer asks someone who just broke a limb or is otherwise seriously injured to blow into the big machine at the police station before getting medical attention, that would be unreasonable.
4. This one is simple. It is also the MOST COMMON reason that the Secretary of State will dismiss an Implied Consent refusal. Because almost every step of the police contact, arrest, and booking is on video, whether or not a person was (or was not) advised of his or her chemical test rights is often (but not always) easy to confirm.
As the numbers go, most of the time, a person facing an Implied Consent refusal won’t have a valid defense. This, of course, means that his or her license WILL be suspended. As a side note, our firm is honest, and we look out for our clients. Even though it generates legal fees, we never recommend that a person pay us to fight an Implied Consent refusal only to fund a losing battle, especially when there IS workaround that will save him or her money. We’ll only fight at the Secretary of State level if we have a good defense.
Not to be indelicate about it, but anyone paying a lawyer should make sure that he or she is looking out for his or her interests, and not just fighting everything for a payday.
As mentioned, there IS a workaround to all of this: Almost without exception, we can still go to court and get a restricted license. This will override the mandatory 1-year suspension for an Implied Consent refusal.
The catch is that a person can ONLY do this when it’s his or her first Implied Consent refusal.
The law allows a person to go before the circuit court and seek an override of the suspension that will provide restricted driving privileges. The irony is that in many 1st offense DUI cases, the license penalty is merely a restriction of the person’s license for 90 days. Almost every person who takes the chemical test will spend less time driving with restrictions for the DUI than he or she would for the refusal, and that’s assuming he or she thereafter goes to court and gets a restricted license. In other words, the license penalty for a 1st offense DUI are less than they are for refusing the test.
For most people reading this, it’s too late to take the breath test. The focus now is on what to do to save one’s ability to drive. All the “coulda, woulda, shoulda” stuff isn’t going to help one bit. If you’ve refused the breath or blood test, and your 14 days to appeal haven’t passed, then the first thing to figure out is if you do have any valid defense(s). If so, then we’ll fight like hell. If not, then there is no point wasting money on a lawyer to challenge the Implied Consent refusal at the Secretary of State, only to lose.
That said, unless there is a valid defense, my team and I will almost always advise the client to request a hearing, because if the officer doesn’t appear, the whole Implied Consent refusal is dismissed and the person keeps his or her license. This doesn’t happen often, but it does in about 1 out of every 20 cases (meaning about 5% of the time). Given that it’s a free chance for the client, it’s definitely worth a shot…
No matter what happens, we can always go to court. A first Implied Consent refusal is one of the very few hardship license appeals allowed by law. To win in court, you have to prove several things, and usually, a formal substance use evaluation must be filed as part of any such appeal. Fortunately, our evaluator knows exactly how to do these evaluations (they are very different than the kind provided for a formal driver’s license restoration appeal filed with the Michigan Secretary of State) for this exact purpose.
Our firm has a 100% success rate in court for Implied Consent Refusal cases, and we’ve handled a lot of them.
The bottom line is that we’ll make sure our client can still drive, and we’ll do so without wasting his or her money.
For everything we’ve just covered, we can boil all the Implied Consent stuff down to the following 6 points:
1. It is a condition of accepting a Michigan license or using a valid license issued elsewhere in this state that you submit to a chemical (breath or blood) when asked by a law enforcement officer.
2. If you refuse, your license (or driving privileges on a license issued outside of Michigan) will be suspended for 1 year.
3. You can appeal, but you can only challenge the 4 legal issues listed above and must submit your request for a hearing to the Michigan Secretary of State within 14 days. Otherwise the suspension begins automatically.
4. If you hold a hearing you must win it.
5. If you don’t request a hearing, or if you do, but then lose, you can go to court and seek a restricted license that will override the suspension for the Implied Consent refusal.
6. All of this is in addition to and independent of anything that happens (or not) in any underlying DUI or other case that is brought.
The simplicity of all this is only outdone by the huge inconvenience it causes. There is no doubt that all of this is a hassle and an added expense, to boot. However, and as the saying goes, “it is what it is.” All we can do is make the best of it, and, fortunately, in these cases, that at least means being able to save a person’s ability to drive.
If you are facing a DUI and looking for a lawyer, be a smart consumer and read around. Pay attention to how different lawyers break down the DUI process, and how they explain their various approaches to it.
This blog is a great place to start. It is fully searchable and updated every week with a new, original installment. To-date, I have written and published more than 610 articles in the DUI section. The reader can find more information here than anywhere else, but don’t take my word for it – see for yourself.
When you’ve done enough reading, start calling around. You can learn a lot by speaking with a live person, and that’s exactly what you’ll get if you call our office. If your case is pending anywhere in the Greater-Detroit area (meaning Wayne, Oakland, Macomb, or one of the surrounding counties), make sure you give our office a ring.
All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions and explain things. We NEVER use any kind of pressure tactics, and instead, encourage everyone to shop around, talk to different lawyers, and feel free to call us back, even to compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at either 248-986-9700 or 586-465-1980.
Our consultations are free and our cases are handled on a “flat-fee” basis with upfront fees!