In Michigan, whether you are a licensed driver or not, you are deemed to have given your consent simply by driving a car on a public roadway to submit to chemical testing (breath, blood, or urine) for the purpose of determining the amount of alcohol or the presence of a controlled substance, or both, in your blood. The law, MCL 257.625, applies to drivers who have been arrested on suspicion of drunk driving as well as felonious driving, negligent homicide, manslaughter, or murder resulting from operating a motor vehicle. These laws were enacted when people quickly learned that the easiest way to get around the alcohol testing was to just simply refuse to comply. Thus, the Michigan legislature adopted the implied consent law to act as a deterrent and provide punishment for such refusal.
The police officer administering the chemical test must give you certain warnings or advisements before you submit to the chemical test. Sometimes they are spoken verbally but often they are prepared on a form for you to read and sign indicating that you understand each one. The officer must “substantially comply" with giving the warnings or advisements before the penalties for refusal can be invoked. The following are the warnings or advisements must be given:
If you take a chemical test at the officer's request, you may request a chemical test to be conducted by a person of your choosing (at your own expense and provided the request is reasonable)
Results of the test are admissible in a judicial proceeding and will be admissible as evidence of your guilt or innocence
You are responsible for obtaining a chemical analysis of a test sample obtained at yoru own request
If you refuse the officer's request, a test will not be given without a court order, but the officer may seek a court order
Refusing the officer's request will result in a suspension of your driver's license and six points will be added to your driving record.
Is Refusing a Chemical Test a Crime?
In several states, yes, but in Michigan, no. At least, not yet.
Can My Refusal be Used as Evidence Against Me at Trial?
Yes! Juries often conclude, rightly or wrongly, that if you refused it was because you were drunk, even though the judge will give them a jury instruction that states that evidence of a refusal is only for the purposes of concluding if the chemical test was offered and not for evidence of guilt. This can be very damaging. Many clients have wrongly decided that such refusal keeps an official blood alcohol content or BAC record out of their case only to find out how detrimental and costly, in more ways than one, that refusal can be.
Can I be Forced to Submit to a Chemical Test?
Only with a court order signed by a judge. Otherwise, your compliance must be voluntary. The court order can give the officer's the right to physically restrain you even to the point of using a catheter for obtaining a urine sample.
Can Evidence Obtained From the Chemical Test be Used Against me for Other Crimes?
No. The results cannot be used against you in any non-DUI situations.
Can I Contest My Refusal?
Yes. You are entitled to an administrative hearing called an Implied Consent Hearing. The hearing must take place within 45 days of the arrest and at least five days notice of the hearing must be given to the officer and the prosecutor. The state has the burden of proving their case by a preponderance of the evidence (more likely than not, 50.1%) that a violation of the Implied Consent Law has occurred. These are the factors that the state must prove:
The officer had reasonable grounds for a drunk driving investigation.
You were placed under arrest.
Did you refuse the officer's chemical test
Was the refusal reasonable
Were you advised of your Implied Consent rights
With the burden of proof so long, the state usually wins. The best way for a defendant to win is for the officer to be a no-show which does happen sometimes. Although losing this battle can sometime help you win the war because it provides you with the officer's testimony under oath which can later be used at motions or trial in your DUI case. It also locks the officer into a story which can later be used for impeachment. Remember, losing the Implied Consent hearing has no bearing on your DUI criminal case.
If you lose your Implied Consent Hearing you can always appeal to the Circuit Court, but they are rarely successful.
What Constitutes a Refusal?
It's not always as clear cut as you think it is. It is important to inform the officer of any health or breathing problems that you may have, particularly if given a breath test on the DataMaster. For example, emphysema can cause a breath sample not to register if you aren't able to breath for the requisite amount of time. The officer may think you are refusing or purposely trying to throw off the machine and many have been falsely accused of refusing this way.
What are the Penalties for Refusal?
First Offense: License suspended for one year and six points added to your driving record
Second Offense: License suspended for two years with six points added to your driving record
A second offense is constituted if it occurred within seven years of the first offense. For first offense refusals, the license suspension can be appealed to the Circuit Court for “hardship" which means they could grant you a partial or restricted license. With the second offense, there is no hardship appeal.