After I was arrested, I was confused and didn't respond to the officer when he asked me about taking the breathalyzer. He claims that I never responded either way and then drove me straight to the hospital. We never even got to the jail until after they took my blood. Can this be a defense at my hearing with the secretary of state?
Criminal Defense Attorney
DLAD hearings are limited to the following issues:
(1) Whether the police officer had reasonable grounds to believe that the person had committed a crime described in the drunk driving laws;
(2) Whether the person was placed under arrest for a crime described in the drunk driving laws;
(3) If the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable; and
(4) Whether the person was advised of their chemical test rights.
Not answering "yes" or "no" to the police officer's request at all, in itself, is not likely going to be a reasonable refusal. You should hire an attorney that does a lot of DLAD hearings to assist you. Good luck.
4 lawyers agree
Criminal Defense Attorney
You may want to hire an attorney he deals with driver license appeals with the Secretary of State because the issue is going to be whether or not your refusal of the breathalyzer was reasonable. Typically, a answer in the affirmative (yes) or negative (no) should be issued before officer proceeds, however the omission of an answer or failure to give one may not be a sufficient defense. Speak with an attorney in your area who has experience with these hearings.
This is an issue of "implied consent." Upon being issued a driver's license you give the implied consent to submit to breath testing upon suspicion of drunk driving. The issue here is whether you refused that consent, because an officer cannot hold the breathalyzer to your mouth and make you blow into the unit. There may however be issues with how the officer explained "implied consent" to you. You need a lawyer that will be able to request all available evidence, review it if it exists, and advise you as to the best way to proceed. Refusal of implied consent carries a mandatory one year suspension of your license and there are very short timelines that must be followed to obtain a review hearing. Be mindful of these things moving forward and consult with counsel.
2 lawyers agree
I believe this was the law.. but I am not sure if it was changed:
Short answer NO in Michigan refusing to take a breathalyzer test is not a defense to driving under the influence..
If an officer has reasonable suspicion that you are driving under the influence he has the legal right to offer you a breathalyser.. if you refuse (and he apparenty assumed you refused) he has the right to confiscate your drivers license and drive you directly to the hospital to get a blood alcohol test (which by the way is much more accurate)..
Further, it is typical that you went to the hospital first before jail because your body flushes alcohol out of your system with time.. so a blood alcohol test is time sensitive.. it must be done ASAP.
Answering this question with general knowlege of the law does not create an attorney client relationship and attorney cannot be held responsible for how the questioner uses this information.