An Overview of Implied Consent and the Implications of Refusal
On behalf of Fausone Bohn, LLP on Thursday, May 28, 2015.
Mark Mandell, Esq.
Following the U.S. Supreme Court’s decision in Schmerber v California, Michigan was able to enact the Implied Consent Act in 1967. Originally, it required motorists to take a blood and/or urine test at the request of police officer when they are arrested for drunk driving. In the time since, the Act has expanded to cover a wide range of violations, including: felonious driving, manslaughter, operating while visibly impaired (OVI), child endangerment, and most recently operating a vehicle with any amount of controlled substances.
Most often, police departments prefer a breath test in order to avoid the foundational requirements of a blood test. In some instances, such as a serious personal injury accident, the breath test may be unfeasible, and so a chemical test is requested by the police officer.
While it is possible to refuse the officer’s request, it is important that you are aware of the potential penalties of doing so if you are found to have a blood alcohol content (BAC) over 0.08. Currently, there is an informal guideline called the “One-Hour Rule,” in which a person has one hour to decide to refuse or submit to the test. Waiting over an hour is considered a refusal. Whether or not a person is over the legal limit, refusing the test allows the police officer to confiscate their picture license. After which, the officer will most often seek a search warrant and will ultimately get their evidence one way or another. If the person is found to be intoxicated, their license will be immediately suspended.
The alleged offender and their attorney have 14 days after the date of arrest to request a hearing. If this is not done, the offender will immediately receive 1-year suspension on their license and 6 points on their driving record if he or she is a first-time offender. If it is their second offence in 7 years, the penalty will be a 2-year suspension on their license and 6 points on their driving record. Both suspensions will take effect five days after the decision has been mailed. Since these penalties are severe, prompt action is crucial.
The hearing will take place 45 days after the arrest, barring an adjournment from either party. There are only four relevant matters to the hearing: Did the police officer have reasonable grounds to believe the alleged offender committed a crime in which implied consent was warranted? Was he or she placed under arrest for this crime? Did the officer provide the alleged offender with their chemical test rights? And finally, did he or she reasonably refuse to submit to a chemical test requested by an officer?
If the alleged is found guilty, he or she will be subject to the same penalties above depending on whether this is their first offence or not. A first-time offender can petition the circuit court for a restricted license in order to travel to and from work, probation, and school, among other destinations listed in MCL 257.319(17). In addition, the circuit court has the power to affirm, modify, or set aside a suspension for a first-time violation case. A different decision will be contingent on new evidence that could not have been reasonably produced for the initial hearing, an error of law, or a material mistake of fact by the hearing officer.
Second-time offenders are not able to petition for a restricted license and cannot appeal to the circuit court for an alternative decision.