What is Implied Consent?
The Implied Consent Law is designed to compel or require breath tests from people who have been stopped under suspicion of drunk driving in Michigan. The idea behind the implied consent law is that once you have your driver’s license, you automatically consent to providing a breath or blood sample at the reasonable request of a police officer. This does not mean that you actually gave your consent, rather that because you are/were driving on Michigan roads and have a Michigan license, that it is implied that you have given your consent to a chemical test.
Do I have to consent to a breath test or blood draw?
In general, no. The Fourth Amendment makes it clear that your consent as it applies to the implied consent law, can be withdrawn. Despite this, the police are still required to ask you to take a blood or breath test, but you do have the option to refuse. The police officer conducting the investigation into whether or not you were operating while intoxicated (driving drunk), must read you your rights and then ask if you consent to the search (breath or blood). Listen to your rights carefully as they are being read to you; prior to responding with yes or no, you do have the right to contact an attorney.
What if I refuse to participate in a breath test?
There are two types of breath tests that police officers investigating drunk driving may use. The first is a PBT (Preliminary Breath Test). A PBT is the roadside test that the officer will ask you to take while still on the scene where they pulled you over. A PBT is not admissible in court. A refusal of the PBT will not result in a driver’s license sanction, but can result in a civil infraction and a fine.
The second test that the officer requests is the breath or blood test. This test is taken either back at the police station or potentially a hospital if you have chosen to take the blood test. This test is completed after you have been arrested for drunk driving. This is the test that is covered by the implied consent law. If you refuse this test, the police cannot obtain your breath or blood sample without a warrant. However, if you refuse this test, your license will be suspended for at least a year, sometimes two, and 6 points will be added to your driving record. It is almost an absolute guarantee that with your refusal the police will obtain a warrant for your breath or blood anyway and obtain the sample regardless. Therefore, you can’t avoid being tested by refusing.
Even if you refused the Implied Consent test – breath or blood – retaining a Michigan criminal defense attorney could keep you from losing your license and help you navigate the court process. If you have refused the Implied Consent tests and your license is suspended for one year, within 14 days of your arrest you can request an appeal. This appeal is done through the Secretary of State. At the appeal hearing the police officer carries the burden of proof and must prove that he or she had good reason to believe that you were driving drunk, they also must prove that you were arrested for a drunk driving crime, that you were read your chemical test rights, and that you responded “no” when asked if you would take the chemical test. If the police officer fails to prove these elements, then you will win your appeal and your license will not be suspended for one year.
However, if you are still facing the underlying drunk driving charge there could be licensing sanctions for that charge separate from the Implied Consent suspension.
If you are interested in learning more about implied consent hearings, drunk driving laws, or license suspensions, contact Tanis Schultz, PLLC for a free confidential consultation with our experienced Grand Rapids criminal defense attorney.