It’s a more common scenario thank you think on Michigan public roads. An officer pulls you over for suspecting driving under the influence of alcohol or drugs. Maybe you were weaving a bit or speeding, but there’s no actual signs of intoxication. The officer, looking for potential evidence, asks if you would comply and submit to OWI testing. What should you do?
Not all cases are the same, but most attorneys would say to refuse. It might be intimidating to say no to law enforcement and can be even more unnerving if they warn you afterwards that you could have your license suspended as a result. These However, most attorneys would still advise you to not submit to OWI testing because of the risks. Chemical tests used to determine blood alcohol concentration (BAC) aren’t always foolproof. In fact, simple external factors such as being diabetic or on a diet could influence the results.
Refusing a chemical test is likely to lead to a license suspension and even a possible arrest as it’s a violation of implied consent laws. These laws state a person must comply with OWI testing if asked by law enforcement and if said person refuses, they will face administrative penalties as a result. What an officer won’t tell you though is that if you failed the OWI test, it would still result in the same outcome. In a defense perspective, it’s much safer to refuse chemical testing as the device could yield false results and if you don’t submit the prosecution will have little to no evidence of your intoxication.
Oakland Attorney Explains Michigan Implied Consent Law
Did you recently refuse OWI chemical or field sobriety testing from law enforcement? If so, we highly recommend you get in touch with the experienced legal team at Dallo Law, P.C.. Our managing attorney J. Dallo is an experienced criminal defense lawyer who has a special focus on OWI cases. He has spent thousands of hours studying OWI law, developing effective defenses, and fiercely fighting for his client’s freedom in the courtroom. With his skills and knowledge, J. Dallo can guide you through the judicial system so your charges are reduced or dismissed.
If you or someone you know has been arrested for violating implied consent laws, call us now at (248) 283-7000 for a consultation. Dallo Law, P.C. accepts clients throughout the greater Oakland County and Macomb County area including Pontiac, Troy, Waterford Township, Oakland Charter Township, Clarkston, Rochester, Novi, Auburn Hills, Bloomfield Hills, West Bloomfield Township, Madison Heights, Birmingham, Warren, Clinton Township,
Information Center:
- What is Michigan’s Implied Consent Law?
- What Happens If I Submitted to a Breathalyzer and Then Take it Back?
- Officer’s Requirement to Provide Chemical Test Rights
- Operator Refusal for a Breathalyzer Test
- Technical Refusals for OWI Testing
- How Miranda Warnings Impact Implied Consent Laws
- Required Forms for an OWI Refusal
- Additional Resources
What is Michigan’s Implied Consent Law?
Michigan, similar to other U.S. states, has a piece of legislation known as “implied consent laws.” These laws establish that law enforcement is authorized to give OWI chemical testing to any person who drives on Michigan’s public roads. Violating these laws by refusing to comply with testing will result in an administrative penalty. This is different from a criminal consequence, as you won’t be sentenced to jail. However, your driver’s license will automatically be suspended, and points will be added to your driving record.
A first-time refusal to submit to chemical OWI testing will result in a driver’s license suspension for up to one year. If you had refused chemical OWI testing one or more times within the preceding 7 years, your license suspension will be lengthened to two years. In either scenario 6 points will be added to your driving record immediately
After you refuse to take a OWI chemical test, you will receive a notification of your suspension. The officer may even destroy your license at the traffic stop and issue a paper permit to you until your case is resolved. Thankfully, you can request an administrative hearing to address the alleged refusal. At the hearing, you can bring legal representation and prove why the suspension isn’t necessary or too harsh. Depending on the outcome of the hearing, you may receive a restricted license or have the refusal tossed out altogether.
What Happens If I Submitted to OWI Testing and Then Changed My Mind?
If you initially refused to submit to a chemical test, but then changed your mind within a reasonable amount of time, the officer is required to allow you to submit to the chemical test.
Determining whether the time it took for you to recant is reasonable depends on a variety of factors including:
- Whether the officer is still at the test instrument location; and
- Whether an operator is still reasonably available.
If you recant the refusal and your request to take the test is not accommodated, then your criminal defense attorney can file a motion to suppress any mention of the alleged refusal. Most law enforcement agencies in Michigan have not set a specific time limit within which the person must decide whether he or she will submit to the offered test.
The statutory language does not specify a time limit for delaying the test. Additionally, the Michigan Department of State, Office of Hearings and Administrative Oversight, does not have a specific time limit policy either.
Officer’s Requirement to Provide Chemical Test Rights
Michigan’s Implied Consent Law, MCL 257.625c, provides for the testing of breath, blood, or urine to determine the amount of alcohol or the presence of a controlled substance, other intoxicating substance, or a combination of both, in the blood of persons arrested for alcohol or drug-related driving offenses.
After a person is arrested for one of the following offenses listed in Section 53.1.5, the person must be informed of the chemical test rights listed on the Breath, Blood, Urine Test Report form, DI177 or on the Officer’s Report of Refusal to Submit to a Chemical Test form, DI-93. A.
The arresting officer is required to Chemical Test Rights to the arrested person as soon as possible after an arrest for the following offenses, in addition to those offenses covered under MCL 257.625c:
- If the subject was arrested for operating a watercraft while under the influence of intoxicating liquor, enforcement members shall read the Chemical Test Rights from the Watercraft/Officers Report of Refusal to Submit to Chemical Tests, DI-93M.
- If the subject was arrested for operating an ORV while under the influence of intoxicating liquor, enforcement members shall read the Chemical Test Rights from the ORV Officers Report of Refusal to Submit to Chemical Tests, DI-93O. 10 Official Order No. 53.
- If the subject was arrested for operating a snowmobile while under the influence of intoxicating liquor, enforcement members shall read the Chemical Test Rights from the Snowmobile Officers Report of Refusal to Submit to Chemical Tests, DI-93S.
- If the subject was arrested for operating an aircraft while under the influence of intoxicating liquor, enforcement members shall advise the rights from MCL 259.187(5)&(6).
The officer is trained not to explain the chemical test rights beyond what is found on the chemical test rights form.
If the officer gives an improper explanation or affirmative misadvice, the criminal defense attorney can file a motion to suppress or exclude any alleged refusal to submit to a chemical test in court or during an implied-consent hearing with the Office of Hearings and Administrative Oversight (previously called a Driver License Appeal Division (DLAD) hearing).
Operator Refusal for a Breathalyzer Test
If you agree to take the breath test, but then refuses to provide an adequate sample for analysis after the test procedure is started, it might be considered an “Operator Refusal” and noted as such on the Evidence Ticket, OD-080.
If you consent to a breath test but then provides five inadequate samples for analysis within a two-minute period after the test procedure is started, it might be considered a “Technical Refusal” and noted as such on the Evidence Ticket, OD-80.
Technical Refusals for OWI Testing
For a technical refusal, the operator must ensure that there are no blockages in the breath tube or mouthpiece which would prevent air from passing into the sample chamber.
The arresting officer is trained to enter the name of the breath test operator and the name of the arresting officer on the Officer’s Report of Refusal to Submit to Chemical Test form DI-93, for all operator refusals or technical refusals.
How Miranda Warnings Impact Implied Consent Warnings
The courts have found that Miranda warnings do not apply to the decision about whether to take a chemical test. Although the Miranda warnings indicate the person may remain silent and have an attorney present, those rights do not apply to the implied consent law.
As a result, a person might become confused and assume they have the right to refuse by not answering the question, asking to speak to an attorney, or asking to have an attorney present for the test.
For this reason, officers are trained not to read the Miranda warnings prior to reading implied consent.
When it comes to a person asserting their rights during the DUI investigation, the officers are trained on the following general procedures:
- If the arrested subject requests an opportunity to consult with an attorney before taking a chemical test, then the subject shall be granted a reasonable opportunity to do so.
- If the subject is arrested for an additional crime, the reading of Miranda warnings should not occur until after the chemical test.
Required Forms Used in a OWI Refusal
When the officer accuses a person arrested for an offense that requires submission to a chemical test and the person refuses to submit to the required test, the officer will complete the following forms depending on the vehicle being operated:
- DI-93: Motor vehicle operator or operators of snowmobile/ORV on a highway or other place open to the general public or other place generally accessible to motor vehicles.
- DI-93S: Snowmobile operator.
- DI-93M: Motorboat operator.
- DI-93O: ORV operator.
Additional Resources
How to Request Hearing for Suspended License – Visit the official website for the Michigan government to download their Request for Hearing Implied Consent Violation form. Access the document and fill out the blanks below and then mail it to the Michigan Department of State to request an Administrative Hearing regarding your implied consent violation.
Michigan Implied Consent Laws – Visit the official website for the Michigan Vehicle Code to learn more about their implied consent laws. Access the site to see how an officer is authorized to conduct a warrantless arrest if these laws are violated, the suspension that is automatically triggered afterwards, and the defendant’s options to resolve the issue.
OWI Refusal Lawyer in Bloomfield Hills, MI
If you or someone you know has been arrested for refusing OWI chemical testing, then it’s crucial you contact Dallo Law, P.C.. J. Dallo of Dallo Law, P.C. has in-depth scientific knowledge on how chemical testing works and its faults. He can utilize this information at your hearing so you can receive a restricted license or your full driving privileges. You can set up your first consultation with J. Dallo of Dallo Law, P.C. by calling us at (248) 283-7000 today.
Dallo Law, P.C. is located in Bloomfield Hills, but we practice throughout the greater Oakland County and Macomb County area. Some cities we frequently represent clients from include West Bloomfield Township, Eastpointe, Birmingham, Madison Heights, Pontiac, Troy, Clarkston, Sterling Heights, Romeo, Armada, New Haven, Fraser and St. Clair Shores.