If you are arrested for drunk driving in Michigan, you will be required to take a chemical test (i.e., a breath test at the station/Datamaster) to determine your bodily alcohol content (BAC). Under Michigan’s Implied Consent Law, all drivers are considered to have given their consent to this test. This law does not apply to “PBT” testing, or roadside testing. Refusing a PBT test is simply a fine up to $150.00 with no driver license sanctions or points. However, persons under age 21 who refuse to take the PBT will receive two points on their driver record.
If you refuse a chemical test, a police officer will fill out an “Officer’s Report of Refusal to Submit to a Chemical Test”.
Refusal to consent to chemical tests will automatically result in a one year suspension for a first refusal and a two year suspension for a second refusal in seven years. Also, six points will be added to your driving record and your license.
A person who wishes to contest the Implied Consent refusal penalties must request a hearing in writing with the Driver License Appeal Division within 14 days of the officer’s notice of refusal. A Request for Hearing can be found here. Failure to request a hearing within 14 days will result in automatic suspension of your driving privileges. If a timely request for hearing is made, the suspension is “stayed” until the matter is resolved at the DAAD hearing.
At the hearing, the following four issues will be addressed:
- Did the police officer have reasonable grounds to believe you committed the crime of drunk driving or another related offense? (See MCLA 257.625(c)(1) for the list of other offenses that are included under this section)
- Were you placed under arrest for drunk driving (or another drunk-driving related offense listed in MCLA 257.625(c)(1))?
- Did you reasonably refuse to submit to the chemical test offered to you by the officer?
- Were you advised of your chemical test rights?
Whether or not you were actually driving drunk at the time is irrelevant. Even if you prove in Court that you weren’t, the suspension for refusal will still stand.
If the suspension does stand, and you wish not to contest the ruling of the Secretary of State, you will not be allowed to drive for any reason unless restricted driving is allowed by Circuit Court. First offenders can petition Circuit Court for restricted license on the basis of hardship. See MCL 257.323(3). You are simply asking the higher court to give you a permit to drive to and from work. There are no hardship appeals for a restricted license on your second refusal. Appeals have to be made to the Circuit Court for the County in which the petitioner was arrested. They are to be filed within 63 days after the final determination is made (182 days if good cause is shown). The Secretary of State must be notified not less than 20 days before the hearing date. A hardship appeal will require a good substance abuse evaluation.
If you wish to contest the ruling of the Secretary of State, you can file a meritorious appeal and ask the Circuit Court to overturn the Secretary of State’s decision completely. Meritorious appeals have to be made to the Circuit Court for the County in which the petitioner was arrested. They have to be filed within 63 days after the final determination is made (182 days if good cause is shown). The Secretary of State must be notified not less than 50 days before the hearing date and any supporting documents must be filed at least 50 days prior to the hearing date. The Circuit Court will only review the record prepared. The record includes the transcript, the documentation presented at the hearing, and the hearing officer’s order or the driving record. These documents will be reviewed to determine if the Secretary of State’s determination:
- was in violation of State of the Michigan or US Constitution, or
- exceeds the statutory authority or jurisdiction, or
- was based on unlawful procedure which was materially prejudicial, or
- was not supported by the facts, or
- was arbitrary, capricious or clearly an abuse of unwarranted exercise of discretion, or
- if the decision was affected by substantial and material errors of law
If you lose your hardship appeal or your meritorious appeal, or if you simply do not take any actions after refusing the Datamaster breath test, your license will be suspended and continue to be suspended for one full year. This suspension will be in addition to any suspension that results from your drunk driving case. However, to the extent the two suspensions overlap, they will run concurrently.
Good Luck! If you have any questions, please contact Aida Spahic at 248.624.5500 or email her at email@example.com.