If you find yourself in a situation where you are pulled over by the police on the road after having too much to drink, you might figure that the best way to avoid prosecution is to simply refuse to take any chemical tests. After all, how can the police prove that the driver is legally intoxicated if they cannot determine the bodily alcohol content (BAC)? However, the Michigan Legislature thought about this loophole and instituted legal penalties that may be imposed if drivers refuse to comply with a police officer’s request to submit to a chemical tests, up to and including suspension of driving privileges. Every Michigan driver should be aware of their responsibilities under Michigan’s Implied Consent Law.
“A person who operates a vehicle upon a public highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state is considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance or other intoxicating substance, or any combination of them, in his or her blood or urine or the amount of alcohol in his or her breath” when requested by a police officer. MCL 257.625c(1). It doesn’t matter if the individual has not actually consented before by signing a document at the Michigan Secretary of State (hence, why it is called “implied” consent). That person must comply with the police officer’s request in ALL of the following circumstances:
- The person was arrested for operating while intoxicated (MCL 257.625(1)), operating while visibly impaired (MCL 257.625(3)), operating under the influence causing death (MCL 257.625(4)), operating under the influence causing serious impairment of a bodily function (MCL 257.625(5)), operating with any alcohol content under age 21 (MCL 257.625(6)), child endangerment (MCL 257.625(7)), operating with the presence of a Schedule 1 or Schedule 2 controlled substance (MCL 257.625(8)), operating a commercial vehicle but refusing chemical tests (MCL 257.625a(5)), or operating a commercial vehicle with 0.04 BAC (MCL 257.625m). MCL 257.625(1)(a).
- The person was arrested for moving violation causing death (MCL 257.601d), reckless driving causing serious impairment of a bodily function (MCL 257.626(3)), reckless driving causing death (MCL 257.626(4)), manslaughter or murder AND the police officer has reasonable grounds to believe that the driver was operating the vehicle while under the influence of alcohol or a controlled substance. MCL 257.625(1)(b).
A person who is arrested for any of the above crimes must be advised by the police officer of ALL of the following under MCL 257.625a(6)(b):
- “(i) If he or she takes a chemical test of his or her blood, urine, or breath administered at the request of a peace officer, he or she has the right to demand that a person of his or her own choosing administer 1 of the chemical tests.”
- “(ii) The results of the test are admissible in a judicial proceeding as provided under this act and will be considered with other admissible evidence in determining the defendant’s innocence or guilt.”
- “(iii) He or she is responsible for obtaining a chemical analysis of a test sample obtained at his or her own request.”
- “(iv) If he or she refuses the request of a peace officer to take a test described in subparagraph (i), a test must not be given without a court order, but the peace officer may seek to obtain a court order.”
- “(v) Refusing a peace officer’s request to take a test described in subparagraph (i) will result in the suspension of his or her operator’s or chauffeur’s license and vehicle group designation or operating privilege and in the addition of 6 points to his or her driver record.”
A police officer cannot force an individual to submit to a chemical test without first seeking and obtaining a court order. MCL 257.625d(1). However, if the individual does refuse, the police officer must immediately submit a written report to the Michigan Secretary of State specifying the reasonable grounds to believe a person committed one of the enumerated crimes, that the person had refused to submit to the chemical test upon request, and that the individual was advised of the consequences of the refusal. MCL 257.625d(2). The police officer must also immediately notify the individual that he or she had 14 days to request a hearing before a Secretary of State hearing officer on why he or she should not suffer license sanctions as a result of the refusal. MCL 257.625e.
If no hearing is requested within 14 days of the written notice provided by the police officer following the refusal, the Michigan Secretary of State must impose the following license sanctions:
- “If the person was operating a vehicle other than a commercial motor vehicle, suspend or deny the person’s operator’s or chauffeur’s license or permit to drive, or nonresident operating privilege, for 1 year or, for a second or subsequent refusal within 7 years, for 2 years. If the person is a resident without a license or permit to operate a vehicle in the state, the secretary of state shall not issue the person a license or permit for 1 year or, for a second or subsequent refusal within 7 years, for 2 years.” MCL 257.625f(1)(a).
- “If the person was operating a commercial motor vehicle, for the first refusal, suspend all vehicle group designations on the person’s operator’s or chauffeur’s license or permit or nonresident privilege to operate a commercial motor vehicle or, if the person is a resident without a license or permit to operate a commercial motor vehicle in the state, not issue the person an operator’s or chauffeur’s license with vehicle group designations, for 1 year.” MCL 257.625f(1)(b).
- “If the person was operating a commercial motor vehicle, for a second or subsequent refusal that occurred in a separate incident from and within 10 years of a prior refusal, revoke all vehicle group designations on the person’s operator’s or chauffeur’s license or permit or nonresident privilege to operate a commercial motor vehicle or, if the person is a resident without a license or permit to operate a commercial motor vehicle in the state, not issue the person an operator’s or chauffeur’s license with vehicle group designations, for not less than 10 years and until the person is approved for the issuance of a vehicle group designation.” MCL 257.625f(1)(c).
If a hearing is requested, it will be scheduled to take place before a Secretary of State hearing officer within 45 days after the arrest for the violation. The individual has the right to bring legal representation to assist him or her at the hearing. “The hearing officer may administer oaths, issue subpoenas for the attendance of necessary witnesses, and grant a reasonable request for an adjournment”, similar to the style in which a court hearing would be conducted. MCL 257.625f(2). This is not a determination of whether or not the individual who refused the chemical test was guilty or not of the alleged underlying crime. The hearing is ONLY limited to the following issues:
- Whether the peace officer had reasonable grounds to believe that the person had committed a crime described in MCL 257.625c(1).
- Whether the person was placed under arrest for a crime described in MCL 257.625c(1).
- If the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable.
- Whether the person was advised of the rights under MCL 257.625a(6).
If the hearing officer determines that the refusal was not reasonable and the police officer complied with the law, then the Michigan Secretary of State may issue the license sanctions that could have been imposed had the individual had not requested the hearing. If either the individual refusing the chemical test or the police officer (with the prosecutor’s consent) were aggrieved by the determination of the hearing officer, then either of them can file a petition in the circuit court of the county that the arrest was made to ask the judge to review the decision. This petition must be filed within 63 days after the determination was made (or 182 days after the determination was made if good cause is shown). MCL 257.323(1). At the hearing, the court will only confine its consideration to a review of the record prepared from the Secretary of State hearing. MCL 257.323(4). However, the court will only set aside the Secretary of State’s decision if it finds that the individual’s substantial rights have been prejudiced because the judge determined one or more of the following:
- The decision was in violation of the U.S. Constitution, the Michigan Constitution or a statute.
- The decision exceeded the Secretary of State’s statutory authority or jurisdiction.
- The decision was made upon unlawful procedure resulting in material prejudice to the petitioner.
- The decision was not supported by competent, material and substantial evidence on the whole record.
- The decision was an arbitrary, capricious or clearly an abused or unwarranted exercise of discretion by the hearing officer.
- The decision was affected by some other substantial and material error of law.
As you can imagine, the burden of proof to convince the circuit court judge to overturn the Secretary of State’s determination is very high and many appeals do not succeed on the merits. The presumption that an individual would only evade a chemical test to avoid detection of operating while intoxicated is great, and the police officer will often receive the benefit of the doubt for reasonable judgment absent some glaring abuse of power. This does not mean that the individual is necessarily doomed to suffer the full suspension of license privileges. Even if the driver does not request a Secretary of State hearing within 14 days of the refusal, he or she may still petition the circuit court within 63 days of the imposition of license sanctions for a restricted license during the implied consent suspension period as a result of undue hardship.
At an undue hardship hearing, the petitioner appears and “states under oath and the court finds that the person is unable to take public transportation to and from his or her work location, place of alcohol or drug education or treatment, or educational institution, and does not have a family member or other person able to provide transportation.” MCL 257.323c(1). If satisfied that a full suspension would be an undue hardship to the petitioner, the court may order the Michigan Secretary of State to issue the petitioner a restricted license permitting driving only to and from the petitioner’s residence to the following:
- To his or her place of employment, in the course of the person’s employment or occupation.
- To and from an alcohol or drug education program or treatment program as ordered by the court.
- To and from the court probation department, or a court-ordered community service program, or both.
- To and from an educational institution at which the person is enrolled as a student.
- To and from a combination of any of these approved locations.
The circuit court, however, cannot order the Secretary of State to issue a restricted license for an implied consent undue hardship if ANY of the following apply:
- The person’s license had been suspended within the immediately preceding 7-year period due to a prior implied consent refusal. MCL 257.323c(2).
- The person had accumulated over 24 points on his or her Michigan driving record in the 2-year period preceding the date of license suspension. MCL 257.323c(3).
- The person cannot be issued a restricted license that would permit operation of a commercial vehicle if the refusal to comply with chemical testing occurred win connection with the operation of a commercial vehicle. MCL 257.323c(4).
If your license has been suspended due to an implied consent violation, you can benefit from the assistance of an experienced attorney to help you win your license back or, in the alternative, obtain a restricted license. Even if you have a court-appointed attorney helping you in the underlying criminal matter, he or she will be unable to represent you in any license administrative proceedings or in a circuit court appeal. Even if you ultimately prevail in the underlying criminal matter with an acquittal or a dismissal, it does not automatically purge or cancel the suspension imposed as a result of refusing a chemical test.
Our lawyers at Kershaw, Vititoe & Jedinak PLC will be able to help you every step of the way in both any administrative hearings, criminal proceedings and circuit court appeals. If you or a loved one need skilled legal representation in any traffic matter, do not hesitate to contact our office to start putting together your best case today.