To Test or Not to Test: Michigan’s Implied Consent

You may not have realized it when you got your driver’s license way back when, but you made certain promises and consented to certain things. Specifically, drivers in Michigan imply, by operating a motor vehicle that they will consent to a test to determine their blood alcohol level when they are stopped by police for suspicion of drinking and driving offenses. Be careful. If you refuse the test when requested by the police, six points will be added to your driving record and your license, or non-resident operating privilege, will be automatically suspended for one year. This is a separate offense from any subsequent convictions arising from the stop. And if you unreasonably refuse the test a second time within seven years, six points will be added to your driving record and you will be suspended for two years.

Quite simply, 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.

All is not lost, though, since the Implied Consent suspension may be appealed to the Traffic Safety Division. This request for hearing must be mailed within fourteen (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. If you are unsuccessful at this hearing, you may or may not be successful in your petition the circuit court to restore your driving privileges, even with restrictions.

Due to the consequences in refusing the chemical test, you must fight the violation very aggressively. You have strict guidelines for exercising your rights and perfecting your appeal. Assuming the appeal is received by the Secretary of State in a timely fashion, no action will be taken against you. Instead, a hearing will be scheduled and at that time either you, or your lawyer, can defend allegations that you refused to take a breath test that was offered to you. For purposes of simplicity, you need to focus in on the following four points at hearing:

1) Did the police officer have reasonable grounds to believe you committed the crime of drunk driving or another related offense?
2) Were you placed under arrest for drunk driving?
3) Did you reasonably refuse to submit to the chemical test offered to you by the police?
4) Were you advised of your chemical test rights?

If the officer fails to appear for the hearing, or if he fails to prove any one or more the the preceding issues listed above, you will prevail at the hearing and no action will be taken by the Secretary of State. The police officer has the burden of proving your violation of the implied consent, it is not your job to prove anything. Your job is simply to establish that the officer failed to meet one or more of these preceding factors. If the officer does prove these factors by a preponderance standard, you will lose your license and six points will be on your driving record. To be clear, you must challenge every one of these issues in order to avoid losing your license.

That’s why when you are confronted with an implied consent issue; you need to hire experienced and aggressive attorneys who know the law. These Michigan drinking and driving specialists can be found at SMDA.

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