A person arrested for operating while intoxicated (DUI) will be given what’s called a chemical test. The purpose of a chemical test is to see if a person has alcohol or drugs in their system and how much.
This chemical test will either be in the form of blowing into a machine at the police station or will be done through a blood draw. The test could be a urine test as well but that’s not common.
When is the Chemical Test Given?
Your general OWI fact pattern goes like this. A person is pulled over by a police officer. The officer has the person go through a series of field sobriety tests. The person is then given a preliminary breath test if the officer believes the person has been drinking.
Refusal of the preliminary breath test (PBT) is not the chemical test. A PBT refusal is a zero-point civil infraction. (Unless you’re under 21 – then it’s a 2 point civil infraction. Or unless you’re a CDL holder driving a commercial vehicle, then refusal of the PBT is a misdemeanor). Anyways, for most people, refusal of the PBT is not a big deal, and refusal is advisable if a police officer asks you to take a PBT (because you’re denying the police officer evidence to arrest you).
The chemical test is a different test than the PBT. The PBT is merely to give the police officer probable cause to arrest you. The chemical test is to measure the amount of alcohol or drugs in your system.
The consequences of refusing the PBT and refusing the chemical test are very different – more on the consequences for refusing the chemical test below.
The chemical test will be offered after a person suspected of operating while intoxicated is arrested. The person will be taken to the police station or to a hospital for a blood draw. Before either test is given, the police officer will read the person what’s called their chemical test rights.
The reality is these rights are impossible to understand for someone whose had a long night of cocktails. The rights are long-winded even for stone-sober people. The chemical test rights are not rights so much as they let you know the consequences of refusal. As far as rights go, a person who submits to a chemical test may also request the officer to take them to obtain a second, independent chemical test of their own.
What Happens if You Refuse the Chemical Test?
A refusal of a chemical test will result in a one-year suspension of your driver’s license. For most people, this penalty is often much steeper than the penalty for the OWI itself.
Most first-offense OWIs penalties, with the exception of some courts (mostly in Oakland County in southeastern Michigan), result in probation, testing, community service, educational classes, and no upfront jail time. A one-year driver’s license suspension can really hurt a person, though.
The suspension that results from a chemical test refusal is called an Implied Consent Suspension. The name comes from the legal concept that drivers in Michigan give implied consent to a chemical test if they are offered such a test when arrested for operating while intoxicated.
What Can You Do About an Implied Consent Suspension?
There are two things you can do when faced with an implied consent suspension.
First, you can fight the implied consent suspension. You must request a hearing with the Secretary of State within 14 days of getting notice of the suspension. This request must be sent, in writing within 14 days. Missing the 14 days period means missing the opportunity to proactively fight the suspension.
In an implied consent hearing, you will have an opportunity to fight the suspension. The main grounds on which to fight the suspension is that the refusal was reasonable. It is rare that the Secretary of State will agree that a refusal is reasonable, but it’s not impossible. It’s important for your attorney to aggressively represent you at this hearing where there are grounds to fight the suspension. There’s nothing to lose in the fight because you’re facing the suspension anyways and the attorney should always fight hard where there’s so much on the line.
Having said that, it is very difficult to fight the implied consent suspension at the hearing for two reasons.
First, the grounds on which to prevail are limited. And second, the burden of proof on the officer for proving there was an implied consent violation is much lower than the burden of proof at a criminal trial. The burden of proof at an implied consent hearing is preponderance of the evidence (like over 50%), whereas at a criminal trial the burden of proof is beyond a reasonable doubt (much higher, though giving it an actual percentage depends on who you ask).
Read More: What is an Implied Consent Hearing?
The second way to deal with an implied consent suspension is to apply for a restricted license. This is called a hardship appeal. This appeal is done through circuit court. Although an implied consent suspension results in a one-year suspension, you may be eligible for a restricted license for that year. A restricted license means you can continue driving to all of the important places you must drive to, such as school and work. This restricted license is a huge relief to what would otherwise be a costly chemical test refusal.
Read More: What is a Hardship Appeal?
Will Refusing the Chemical Test Prevent Me From Being Prosecuted for Driving Under the Influence?
Many people arrested for an OWI believe that refusing the chemical test will help them beat the OWI. The reality is that refusal of the test will not prevent the police from getting a measurement of the alcohol or drugs in your system.
Once you refuse the test, the police will apply for a search warrant that enables them to take your blood, and by force if necessary. The police will apply for a search warrant and 99.99% of the time they will be granted the search warrant to obtain your blood. So your refusal of a chemical test will not prevent the police from measuring the drugs or alcohol in your system. The police are still going to get that measurement but with the refusal you get a license suspension in the process.
So What Does This Mean?
Best practice would be to submit to the chemical test (not the PBT). The police are going to get your blood if they want to. Don’t make it so you lose your license in the process.
Of course, if you’re reading this far into the article then you’ve probably already refused the chemical test. It happens, and from this point the best thing course of action would be to exercise both options for dealing with the implied consent suspension. The best thing to do would be to request a hearing on the implied consent suspension while also preparing for the hardship appeal. This gives you the opportunity to fight the suspension at the hearing (while delaying the suspension to work on the appeal), while also preparing for the appeal.
This Was a Lot of Information
If you’ve made it this far into the article I can certainly understand if this feels like a lot of information, possibly overwhelming. That’s what lawyers are for.
Call ArborYpsi Law to see how we can help you navigate these legal fields. Every week we help people with driver’s license issues and we look forward to helping you with any you might have. We have lots of experience with implied consent hearings and hardship appeals, and can assist you in your case.
Call us at 734.883.9584
Call Sam Bernstein at 734.883.9584 or e-mail at email@example.com.
Sam Bernstein is an Ann Arbor attorney focusing on DUI law and criminal defense.
ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.