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What if I Refused to Take the Blood or Breath Test?

Home Blog DUI What if I Refused to Take the Blood or Breath Test?

If you refused to take a breath test in the police car, you may have been charged with an additional offense called PBT refusal. This is a civil infraction, and not really that big of a deal.

The BIG DEAL is the refusal to take a blood or breath test after your arrest. When that happens, the police will give you and also MUST send a copy of the form called “OFFICER’S REPORT OF REFUSAL TO SUBMIT TO CHEMICAL TEST” to the Michigan Secretary of State. If you do not request a hearing within 14 days, and then win it, your license to be suspended for one year, regardless of what else happens in your DUI case.

This action by the Secretary of State is required by law.

To be clear, if you were given the form entitled “OFFICER’S REPORT OF REFUSAL TO SUBMIT TO CHEMICAL TEST,” then you either must request, and win a hearing, or your license will be suspended

By contrast, if the police issued a Michigan temporary driving permit instead of the refusal form, then you don’t have to worry about losing your license at this stage or requesting a hearing with Secretary of State.

If you did get the “Officer’s Report Of Refusal To Take A Chemical Breath Test,” it is important that you complete the back of that form and request a hearing within 14 days of your arrest to avoid having your license automatically suspended.

Even if those 14 days have passed, or there is nothing you can do about the refusal, we can still go to court and request a restricted license. To date, and after 30-plus years in practice, my team and I have a 100% success rate in these appeals.

As it relates to the DUI itself, when someone refuses a breath or blood test after his or her arrest, then a warrant will be obtained and a blood sample taken for analysis by the Michigan State Police crime lab. All of the circumstances surrounding a blood test must be closely examined, because this is fertile ground for us to find the kinds of errors in or problems with the case that can result in a successful challenge to the evidence, and may even result in a case getting dismissed.

Our job, of course, is to carefully evaluate every shred of the evidence. The simple fact, though, is that most of the time, a blood draw following a refusal will stand up legally.

To save your license, we must first evaluate whether you have any legal grounds to challenge the refusal. Under the governing law, there are only 4 issues that can be challenged at an Implied Consent Hearing:

1. Whether the peace officer had reasonable grounds to believe that the person had committed a crime described in section 625c(1).

2. Whether the person was placed under arrest for a crime described in section 625c(1).

3. If the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable.

4. Whether the person was advised of the rights under section 625a(6).

This can get rather technical, and is something best discussed when the facts of the case are better known, but here is quick translation of the 4 items above:

1. Was the police contact with you based upon reasonable grounds?
2. Were you arrested for a DUI, or alcohol-related traffic offense?
3. Did you have a good reason to refuse the test? Remember being really drunk or not remembering that you’re required to submit to a chemical test law is NOT an excuse.
4. Were you properly advised of your rights regarding a chemical test. This is probably the most likely route to winning an implied consent hearing. 

As noted above, though, even if a person had no winnable defense to an Implied Consent violation, we can always seek a restricted license in court.