Written by attorney Jonathan Andrew Paul

Implied Consent in Michigan - how to win your hearing by getting the prosecutor involved in the case

As a former prosecutor, I had no formal participation in an implied consent issue.

According to the Michigan Secretary of State:

"If arrested for drunk driving in Michigan, you will be required to take a chemical test to determine your bodily alcohol content (BAC). Under Michigan's Implied Consent Law, all drivers are considered to have given their consent to this test. If you refuse a test, six points will be added to your driver record and your license, or non-resident operating privilege, will be suspended for one year. A suspension of a license, or non-resident operating privilege, is automatic for any refusal to submit to the test. This is a separate consequence from any subsequent convictions resulting from the traffic stop. If you are arrested a second time in seven years and again unreasonably refuse the test, six points will be added to your driver record and your license, or non-resident operating privilege, will be suspended for two years. If you refuse to take the test under the Implied Consent Law or if the test shows your BAC is 0.08 or more, your Michigan driver's license will be destroyed by the officer and you will be issued a 625g paper permit to drive until your case is resolved in court.

The Implied Consent suspension may be appealed to the Administrative Hearings Section. The request for hearing must be mailed within 14 days of the date of arrest or your operator's or chauffeur's license and vehicle group designation or operating privilege will be automatically suspended. You are not required to have an attorney at this hearing, but an attorney may represent you if you wish" ​ As you can see, the county, city, township or municipality prosecutor has nothing to do with this potential action on your license as it is not criminal and has no correlation to the outcome in the courtroom. Most defense lawyers stop here and take the prosecutor out of the case and try to go toe to toe with the police officer at the hearing. As a former prosecutor I barely even knew what the implied consent law was, because no defense lawyer brought it to my attention.

As a criminal attorney who is always looking for options for my clients, I further imagined this line also listed on the Michigan Secretary of State website

"Please note - A request by a law enforcement officer or prosecutor to withdraw a report of refusal must be received by the Department no later than the date of hearing."

This means that the police officer or the prosecutor can withdraw the refusal, meaning there is no need to hold the hearing and risk loss of license for a full year and six points on the driving record. Most prosecutors have never even heard of this power they have, and most would be too afraid to use it if not approached in the correct way. Same holds true for the police officers; if taken by surprise, they are unlikely to OVERTURN something in fear of getting in trouble or "being tricked".

This is a delicate subject to bring up to a prosecutor, and must be done in the right way. Outright seeking this outcome is usually turned down because the prosecutor isn't comfortable as they feel like they are trying to be fleeced or tricked into agreeing. I use the proactive items that my client has already achieved and continues to work on as I play the common sense/moral card. My client is working his/her butt off without being required to do so, and if we're going to be resolving the case together there is going to be some sort of license suspension, supervision of my client; why do we need to take the license away for a full year too?

In my experience once a prosecutor fully understands their unique and mostly unknown power, and my client's proactive accomplishments are brought to light, it just makes sense to work with us on mitigating the implied consent implications and coming to a mutual resolution of all issues. If we can bring the prosecutor into the implied consent case, we can come up with a universal outcome rather than treating the two issues as separate issues where you lose the ability to make a great overall deal for the client.

You win the implied consent issue by empowering and respecting the prosecutor.

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