Implied Consent: Know the Rights You Don’t Have
Did you that when each time you get into the driver’s seat in Michigan, you are considered to have consented to a BAC test? Before heading out for a few drinks with friends, there are some important points everyone should keep in mind if you’re thinking of getting behind the wheel, in addition to having a designated driver.
Under Michigan’s Implied Consent Law, all drivers are considered to have given their consent to chemical tests to determine their Blood Alcohol Content (BAC). It does no good to refuse a BAC test, as there are significant penalties.
If you refuse the breathalyzer test, six points will be added to your driving record and your driver’s license will be automatically suspended for one year. This is a separate penalty from any subsequent convictions resulting from the traffic stop. Secondly, there is always a judge on-call for the police to get a warrant for a blood draw.
Further, if you refuse a test, or if the test shows your Blood Alcohol Content is 0.08 or higher, your driver’s license will be destroyed and you will be issued a 625g paper permit to drive until your case is resolved in court.
If you are arrested a second time in seven years and again unreasonably refuse the test, six points will be added to your driver record and your license will be suspended for two years.
The suspension may be appealed to the Traffic Safety Division, but the request for a hearing must be submitted within 14 days – if you do not submit a request for a hearing, your license will be automatically suspended.
Implied consent hearings place a huge burden on the accused, but there are ways to soften damages in the process.
The implied consent hearings are conducted by attorneys from the Department of State. You must show that the refusal to take the test was not unreasonable – and this is extremely difficult to prove. However, the Michigan Supreme Court has ruled that you may request a call to your attorney before submitting to a breath test (Hall v. Secretary of State, 1975): if you are not allowed this opportunity, you may reasonably refuse a breath test.
You should also be informed about the “One Hour Rule,” whereby you generally have one hour to change your mind about submitting to a breathalyzer test. For example, if you refuse at first, but change your mind 15 minutes later, then you have not unreasonably refused the test.
Although the burden of proof is incredibly difficult to overcome, first-time offenders can petition the circuit court for a restricted driver’s license. You can also appeal any legal defects in the implied consent procedure to the circuit court. Having an experienced and knowledgeable attorney at your side to fight for your rights can make a huge difference.