The Michigan OWI Implied Consent statute has the power of a double-edged sword when added to the fines, costs and jail-time handed out for a drunk driving conviction. If a driver refuses to consent to a chemical test, they face a mandatory 12-month suspension and 6 points on their driving record.
If you are arrested for drunk driving in Michigan, you are required to take a chemical test to determine your bodily alcohol content (BAC). Under Michigan’s OWI Implied Consent Law, all drivers are considered to have given their consent to these tests when they receive an operator’s license. If the police request that you take a chemical test, and you refuse, your driver's license will be suspended for one year, and 6 points will be tacked onto your Michigan driving record. These penalties are a double-edged sword when added to the fines, costs and jail-time handed out for the drunk driving conviction.
It is critical to distinguish a “chemical test” from a “preliminary breath test” (PBT). If you refuse a PBT, you incur a $100 civil infraction, and no points are assessed on your driving record. The Implied Consent suspension applies to Chemical tests, which includes the Data Master (breathalyzer), a blood test or urine test. PBT’s are given to suspected drunk drivers at the scene of the traffic stop. Chemical tests are given at the police department or medical facility.
When stopped by the police for drunk driving, some people refuse to take the chemical test assuming that without the chemical test results, there is no drunk driving case. Unfortunately, Michigan drunk driving laws permit police to obtain a search warrant for a blood test. The chemical test is administered against the driver’s will, and any advantage gained by refusing a chemical test is destroyed. Instead, you end up with a drunk driving charge and an OWI Implied Consent suspension.
Under Michigan’s OWI Implied Consent Law, a driver who refuses to submit to a chemical test faces an automatic 6 points and a suspension of his driver’s license for one year. These penalties are in addition to the criminal penalties from the drunk driving conviction.
Even if you ultimately defeat the criminal charges – OWI, OWVI, etc – the Implied Consent suspension and points will remain. This is why it is absolutely crucial to submit a written request for a Driver’s License Appeal (DLA) hearing within 14 days of your arrest. If not, then your operator’s license will be automatically suspended. If a timely DLA hearing is requested, the suspension is “stayed” until the conclusion of the DLA hearing. In other words, you can drive until further notice from the SOS.
The issues to be determined at the DLA hearing are spelled out in the Implied Consent Statute. Law Enforcement will attempt to prove that the officer had reasonable grounds to believe you were operating while intoxicated; that you were placed under arrest for OWI (or similar offense); that you refused to submit to the chemical test, and that your refusal was unreasonable; and that you were advised of your implied consent rights. If the arresting officer proves these elements by a preponderance of the evidence, then you will lose your license for one year, and have 6 points assessed against it.
The good news is that you can raise several defenses at a DLA hearing. Law enforcement, and sometimes test administrators, must appear at the hearing to refute various defenses you raise. Some of the defenses to Implied Consent suspensions include:
* Medical Emergency: You were unconscious due to a medical emergency, and could not knowingly refuse to submit to the chemical tests.
* Faulty or Lack of Equipment: The arresting officer offered the chemical test, but the testing site was closed, or the instrument was inoperable.
* Technical Refusals: You may have attempted to complete the test, but not to the standard expected of the test administrator. Such “technical refusals” require the instrument operator to appear at the hearing, and refute your defense.
*Weren’t the Driver: If you were not the operator of the vehicle, then you are not obligated to submit to a chemical test.
ABOUT THE AUTHOR: Patrick S. Fragel, Criminal Defense, Former Prosecutor Since 1994
After law school, he assumed a full-time prosecutor position where he handled cases involving drug offenses, drunk driving, serious assaults, and embezzlement. During his 18 years of private practice, he has obtained several “not-guilty” verdicts in criminal trials throughout Western Michigan. His business law practice includes 20 years in commercial transactions and business formation.
After earning his B.A. from Michigan State University, he enlisted in the U.S. Army, Infantry and climbed the ranks to Captain. His graduate work focused on organizational goal setting and culminated in an MPA from Northern Michigan University. While at NMU he performed outcomes assessment while working for the Department of Institutional Research.