Implied Consent Suspensions and Hardship Appeals
Refusing a Breath or Blood Test Can Result in an Implied Consent Suspension. An Implied Consent Suspension means you cannot drive anywhere legally for one year.
What happens if you refuse a breath test or a blood test?
If you are pulled over for suspected drunk driving, the officer generally requests that you participate in field sobriety tests, including a preliminary breath test (PBT). A PBT is a small device you blow into, and it checks your breath for alcohol content and estimates a level. The field sobriety tests can give the officer probable cause to arrest you. In most cases, as soon as you are asked to exit your car, you will be arrested at some point. Because the Standard Field Sobriety Tests (SFST) are designed to make you fail, it is generally better to respectfully decline to participate in these tests. What happens if you refuse a breath test in Michigan? If the test is a PBT, probably very little. If you refuse a chemical breath test, you stand a good chance of losing your driving privileges without the expert assistance of a top-notch lawyer.
A PBT or preliminary breath test is NOT a chemical test, and it is different than a “breathalyzer” or DataMaster Test. If you refuse a PBT, you will probably be given a ticket for a civil infraction. Conversely, the police will ask you to consent to a blood or breath chemical test if you are arrested. If you refuse a chemical breath test, called a DataMaster or breathalyzer or a blood test, you will be issued an “implied consent violation.” An implied consent violation can result in a year-long, unrestricted suspension of your driver’s license.
Is refusing the PBT the same or different than refusing a chemical breath test?
If you are perceived to “fail” the field sobriety tests, the PBT level is estimated at .08 or above, or the officer believes you are under the influence based upon his experience, they will arrest you and take you to do a more formal breath or blood alcohol test, called a “chemical test.” A chemical test is done at the police station with a breathalyzer called a DataMaster, or they draw blood and send it in for testing.
If you do not wish to take the PBT or blow into the Datamaster or allow blood to be drawn, the officer will likely obtain a search warrant from the judge to have your blood drawn and examined by a scientist at the Michigan State Police Forensic Laboratory.
You might not know that driving penalties are associated with refusing to take the Datamaster or allowing your blood to be drawn. The Secretary of State has its penalties associated with refusing these procedures. In Michigan, there is an Implied Consent law. “Implied Consent” means that as a driver, you are consenting to these tests should an officer reasonably ask for them.
Implied Consent Suspension
Suppose you refuse a chemical test, breathalyzer, or blood. In that case, the Secretary of State will then suspend your license for an entire year, with no restricted license available, and the Secretary of State will add 6 points to your driver’s license. The licensing action is independent of the criminal charges if your blood alcohol level was .08 or above.
You do have an opportunity to fight this by appealing and having a hearing on the matter in front of a Secretary of State hearing administrator. The hearing officer will look at four things:
- If the officer had reasonable grounds to believe that you had committed a crime of operating a vehicle while intoxicated,
- Whether you were placed under arrest for this crime,
- If your refusal was reasonable, and
- Whether you were advised of your implied consent rights.
The burden is on the Government, in most cases the arresting officer, to prove that you violated the implied consent rule. The level of proof is by a preponderance of the evidence. The preponderance of the evidence means over 50%.
Hardship License in Circuit Court if You Refuse a Breath Test
If the hearing officer at the Secretary of State rules against you, you still have the opportunity to appeal to the Circuit Court where the offense took place. You can also appeal to the Circuit Court for what is commonly referred to as a “hardship license” based upon need. These appeals are complex and are best handled by only the most experienced Michigan criminal defense attorneys with sub-specialty in driver license restoration cases. The attorneys with LEWIS & DICKSTEIN, P.L.L.C. have decades of experience winning hardship appeals in circuit courts throughout Michigan. If you are asking, “what happens if I refuse a breath test?” you should call us ASAP so we can help ensure you can continue driving legally.
Call us today at (248) 263-6800 for a free consultation or complete a Request for Assistance Form. We will contact you promptly and find a way to help you.