Like most US States, Michigan has an “implied consent” law, by which our mere use of the roads, is deemed to give consent to police officers, to test our breath, blood, or urine for alcohol content.
It is important here to distinguish the roadside “Preliminary Breath Test”, or PBT, from the blood/breath/urine test requested later on in the process, by the police. Yes, a typical drunk driving arrest will, or at least may result in two alcohol tests being required of you.
The roadside PBT, most commonly the first of the two tests, is helpful to the police in determining whether a motorist is under the influence of alcohol, but it is not sufficiently accurate to be admissible into evidence, in a court of law. Typically, when the officer stops you for suspected drunk driving, they will request that you undergo a PBT. If you refuse this roadside PBT, you may be liable for a civil infraction, under MCLA §257.625a.
Isn’t It Enough To Comply With “Breathalyzer” At The Scene? IN SHORT, THE ANSWER IS NO. That is one reason it is so important to distinguish between the roadside PBT, and the test the police want you to take later on in the process.
The test at the police station, or quite possibly at a hospital ER is the one subject to the “implied consent” law. The police officer has the choice of requesting blood, breath or urine testing, although they rarely request urine testing. Breath alcohol is the most common, but blood alcohol testing is quite common as well.
If you refuse this test, which again takes place after you are removed from the scene of the arrest, you are subject to having your license revoked for an entire year, or more depending on how many previous refusals there have been, or whether you were operating a commercial motor vehicle. Under MCLA §257.625e, you may request a hearing before the Secretary of State’s Office, but you must may that hearing request within 14 days of the arrest.
That is why you need to call me ASAP, following a drunk driving arrest. The clock may well be ticking against you on this short 14-day time, to request a hearing.
By requesting a hearing, you have effectively delayed the revocation of your license. That alone, may be reason to request a hearing.
What happens at the hearing? First, you should know that currently, the Michigan Secretary of State’s Office conducts these hearings by a videoconference software link, known as “Microsoft Teams”. This became more prevalent during the Covid-19 pandemic, and I suspect that they will continue to use this technology, even after the pandemic threat passes. I am providing you a link, here, to the Microsoft Teams download site, if you want to download it to your computer.
Under MCLA §257.625f(4), an implied consent hearing is limited to the following four issues:
- Whether the police officer had reasonable grounds to believe that the person had committed the offense of drunk driving, as defined in MCLA §257.625c(1).
Even if this arrest is later determined to be improper, resulting in a dismissal of the charges, the police officer’s reasonable grounds to believe that the motorist had been driving while intoxicated is a sufficient basis to make this an “implied consent” issue. In other words, you can still lose your license, even though you beat the DUI.
- Whether the motorist was placed under arrest for the offense of drunk driving, as defined in MCLA §257.625c(1).
- If the person refused to submit to the rest upon the request of the officer, whether the refusal was reasonable; and
- Whether the motorist was advised of their rights under MCLA §257.625a(6), specifically:
- That they have a right to demand that a person of their choosing administer one of the blood/breath/urine tests;
- That the results of the test are admissible in court, and can be used to determine innocence or guilt;
- That any test that they may want is their responsibility to obtain;
- That if they refuse the officer’s request for a test, that the test cannot then be taken, but the officer may request a court order that you submit to testing; and
- That refusing an officer’s request to take the test will result in a suspension of their license, and the addition of six points to their driving record.
This is a fraught, complicated area of the law, and one that many folks do not realize may impact them as hard as it will. You need capable counsel, who can see the “implied consent” issue, even if you do not see it yourself. Give me a call at (586) 727-1900, or by e-mail at firstname.lastname@example.org.
Under Michigan law, your use of roads and highways is held to show your implied consent to provide breath alcohol testing. MCLA §257.625c. Thus, there are consequences for your refusal to submit to the testing, that you have “impliedly consented” to giving.
If you have refused breath alcohol testing, you have 14 days from the date of the arrest, within which to request a hearing before a Secretary of State Hearing Officer. Failure to request that hearing within 14 days will result in a 1 year suspension of driving privileges, plus six points on the driving record. A second refusal within 7 years is punishable by a 2-year suspension, plus six points.
- Whether the officer had reasonable grounds to believe you were driving under the influence;
- Whether you were in fact arrested for this offense;
- Whether you refused to submit to the test, upon the officer’s request AND whether that refusal was reasonable; and
- Whether you were advised of your chemical test rights under MCLA §257.625a(6)
Of course, there is much more detail and nuance that goes into each of these categories. For example, what constitutes a “refusal”? What makes a refusal “reasonable”?
- The burden of proof is on the officer, although you and I will have the burden of proof as to any affirmative defenses; the standard is “preponderance of evidence”, and not “beyond reasonable doubt”
- Because these hearings are often held via video link, appointment times are STRICTLY enforced. I make sure my clients show up 20-30 minutes early.
- The hearing once requested must be scheduled within 45 days of the arrest. One adjournment may be granted, and then for no longer than 14 days.
Some time ago, Michigan enacted enhanced penalties drivers, whose blood alcohol level exceeds .17%. Under Michigan’s “Super Drunk” law, including mandatory one-year alcohol rehabilitation, a one-year license suspension, the first 45 days of which is a so-called “hard suspension”, meaning no driving at all.
During the remaining 320 days, the driver can seek restricted driving privileges, but only if monitored by a breath alcohol ignition device (or “breath interlock device”), installed and maintained in the vehicle, at the expense of the driver.
While technically, someone with multiple OWI’s on their record can still be arrested, charged and prosecuted for a “Super Drunk”, or “High BAC” offense, the distinguishing feature of the charge is enhancement of sentence/punishment.
Someone with multiple offenses, and someone with other aggravating factors (OWI causing death, serious impairment, or child endangerment), will have much greater penalties to worry about, due to the enhancements that come with felony drunk driving, endangering a child, etc. In other words, a “High BAC” charge really impacts the first-time offender, perhaps more than it would for the already sentence-enhanced repeat offender.
Using the Widmark formula, as breath alcohol testing machines do internally, and mechanically, you can calculate the anticipated blood alcohol level one would expect from consuming a certain amount of beer, wine, or hard liquor. One can also calculate how many drinks of different types of intoxicant, it would take to elevate one’s blood alcohol level to a given number. Constants are built into this well-accepted formula, to account for physiological differences between men and women, and between heavier and thinner people.
Rather than drag you through a complex mathematical formula, I am instead providing a link below, which should give you a quick approximation as to the blood alcohol level you can expect from drinking various amounts of beer, wine, or spirits. Blood Alcohol Content Calculator
In common everyday usage, we often refer to a drunk driving offense as a “DUI”, meaning “driving under the influence”. This is actually the term used in many other states, but it is not used here, and the distinction is important. In Michigan, one need only be “operating” a motor vehicle while intoxicated, in order to be guilty of this crime; one need not be “driving”. Here in Michigan, the offense is referred to as “OWI”, meaning “operating while intoxicated”.
Before discussing that distinction, I should mention that MCLA §257.625(1) sets forth a number of ways a person can be “under the influence, or intoxicated. A person could be deemed intoxicated, by virtue of their use of drugs, and not alcohol. As well, a person could have an unlawful level of blood alcohol (sometimes referred to by its acronym, as “UBAL”), i.e., one exceeding .08%.
As well, a person could be operating/driving a vehicle, with a blood alcohol less than .08%, and still be impaired in their ability to drive a motor vehicle. “Operating While Intoxicated” is a more serious drunk driving charge, than would “Operating While Visibly Impaired” (or OWVI), at least based on points, fines and penalties. OWI charges are often negotiated down to OWVI, particularly for the first time offender. Also, “High BAC” charges are often negotiated down to a regular OWI charge.
In any event, the broad term of “operating while intoxicated” instead of “driving while intoxicated”, would seem to make it easier for police to charge/prosecute someone for operation of a vehicle. This is particularly true, because Michigan appellate courts have issued rulings holding that conduct inside of a vehicle, short of driving, has been held to be “operating while intoxicated”.
Often, if a person is behind the wheel, with the engine on, and/or there is some other danger that the intoxicated person might once again put the vehicle in motion, that person is considered to be “operating”. Where they are not in a position to put the vehicle in motion, or into a situation involving significant risk of collision, such persons have been held not to be “operating”. These “operating” cases are often fact-specific, and I have a number of them going on at any one time.
We will just have to talk about the facts of your case. Perhaps you have a good defense to “operating”, under Michigan law.
Making things somewhat/marginally tougher for the prosecution, is the requirement that the intoxication be contemporaneous with the operation. Police often come upon someone at an arrest scene, find them to be intoxicated, and automatically assume that they drank either before they drove to the scene, or drank during the drive. Depending on the facts, it is often just as likely that the person came to the scene, and got intoxicated at the scene, after driving over.
Remember: we do not need to prove that you were not intoxicated while operating the vehicle. The prosecution needs to prove – beyond a reasonable doubt – that you were. This is a big difference. Here is the jury instruction, that a jury will be instructed on, if we take your case to trial. They must show operating while intoxicated, requiring contemporaneous operation and intoxication.
When it comes to defending your legal rights in an OWI situation, give Jon Frank a call at (586) 727-1900, or email at email@example.com.
Line up your DUI defense NOW!
Text/Call either of my numbers, (877) FRANK-LAW (372-6552), or (586) 727-1900
Frequently Asked Questions. Honest Answers.
Once you hire an attorney, he/she needs to immediately get a copy of the Prosecutor’s file, and the police cruiser “dash-cam”. These resources will contain information critical to your defense.
The initial police stop must be justified by some reasonable suspicion of wrongdoing. If there is no reasonable basis to suspect you of wrongdoing, there may be a basis to invalidate everything that followed the improper stop, including the field sobriety tests, the preliminary breath test (PBT), any admissions you may have made, and the results of the DataMaster testing conducted at the police station.
With that information in hand, I will be in a better position to file a Motion to Suppress, and indeed, to dismiss the entire case.
There must be reasonable suspicion, that a crime was committed, and that you committed it. That reasonable suspicion may come in the form of a citizen complaint to the police, or by means of the officer’s own observation of your behavior. Police are not allowed to simply stop vehicles and persons, because of some vague hunch. An officer’s failure to demonstrate the requisite “reasonable suspicion” may result in the suppression of all after-acquired evidence, and in the dismissal of charges.
Drunk driving is a serious offense, so serious that a conviction may bar you from entering Canada and other countries; so serious that any personal injury judgments resulting from your drunk driving will not be dischargeable in bankruptcy; so serious that a conviction may bar you from certain job, and other opportunities.
Just because you may have actually driven under the influence does not mean you forfeit your rights as an American. Indeed, when you are charged with any crime, that truly is where “the rubber meets the road”, as far as your constitutional rights are concerned.
You have a right to understand the charges levied against you; you have an 8th Amendment right to have bond set at a reasonable level; you have a right to obtain “discovery”, i.e., a copy of the Prosecutor’s file; you have a right to challenge probable cause in felony cases; you have a right to suppress unlawfully obtained evidence, and you have a right to force the Government to prove its case against you, beyond a reasonable doubt.
You may well have some soul searching to do, on the subject of why you were driving under the influence of drugs/alcohol, in the first place. While you do that soul-searching, be assured that I will be aggressively defending your rights in court. Call Jon Frank today.
Starting in October 2010, motorists with more than .17% BAC are subject to enhanced penalties, for the newly created offense of “super drunk” or “High BAC”.
Still a misdemeanor, a “super drunk” charge comes with stiffer fines and jail time (180 day maximum sentence v. 93 days for non-High BAC charge; $700 fine v. $500 for non-High BAC charge); license restrictions for one year, with a “hard suspension” (no driving at all) for the first 45 days; mandatory installation of ignition interlock for the remaining 320 days, at owner’s expense; 6 points v. 4 for “visibly impaired”. Finally, conviction on a charge of “Super Drunk” requires mandatory alcohol education for one year, and not the shorter term alcohol education classes often ordered by courts in non-High BAC offenses.