Implied Consent Hearings

So you’ve been arrested for operating while intoxicated and told the police officer you would not take the breath test. The officer obtained a warrant for your blood, and said your driver’s license would be suspended for a year. You’re probably wondering what happened and what are your options from here.

The Michigan Implied Consent Law holds that a person arrested for a drinking and driving crime must complete a breath or blood test upon request by the police.

Refusing the test will result in a one-year suspension of the driver’s license, as well as the addition of 6 points to the driving record.

From the time of the refusal, the driver has 14 days to request an implied consent hearing. Otherwise, the Secretary of State will move to suspend the driver’s license.  

An implied consent hearing gives the driver the opportunity to fight to preserve the license and prevent the suspension.

The hearing is a civil proceeding as opposed to criminal, meaning the burden of proof is a preponderance of the evidence, rather than the standard beyond a reasonable doubt in criminal proceedings.

The hearing will be held at a Secretary of State office. At the hearing, the police officer has the burden of proof, and the driver has the burden to show any affirmative defenses.

There are only four issues at the hearing:

1.      Whether the peace officer had reasonable grounds to believe that the person had committed a drinking and driving crime.

2.      Whether the person was placed under arrest for a drinking and driving crime.

3.      If the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable.

4.      Whether the person was advised of their rights regarding the requested breath or blood test. A police officer is required to give the driver certain information at the time the test is requested, including the right of the driver to obtain an independent test.

At the hearing, the police officer will give testimony, and your lawyer will have an opportunity to cross examine the officer.

In general, the issues numbered 1, 2, and 4 are not very difficult for the police officer to prove. Therefore, it is often necessary to show that the refusal of the test was reasonable.

If you lose the implied consent hearing or miss the 14 day period to contest the suspension, you may still be eligible for a restricted license.  you may still appeal to the circuit court for a restricted license. You may appeal to the circuit court even if you miss the 14 day period for requesting the implied consent hearing.

Although it may seem implied consent hearings are difficult to win due to the limited issues, there are several reasons to hold the hearing.

First, you may have decent grounds to challenge the implied consent suspension that are not apparent until you’ve consulted with an attorney who can analyze the situation.

Second, the implied consent hearing will often be scheduled ahead of the criminal proceeding for the Operating While Intoxicated charge. This means the implied consent hearing can be used by the defense attorney as a discovery tool.

Your attorney can cross examine the police officer about the arrest and investigation to gain information about the case that could not be obtained by simply reading the police report. This reason is especially valuable if you choose to take the case to trial.

The third reason is you can automatically win the hearing if the police officer fails to show up on time, a reason which by itself is worth your time and money.

Contact ArborYpsi Law at 734.883.9584 or at bernstein@arborypsilaw.com to speak with attorney Sam Bernstein if you have been arrested for drinking and driving and face an in implied consent suspension.

ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.

Call 734.883.9584 to speak with a Criminal Lawyer

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.