What are my options if I lose a Michigan implied consent hearing?If you've lost your Michigan implied consent hearing, you may be able to appeal this decision. A defendant can appeal the decision of the implied consent hearing on written motion of the party for reconsideration under three circumstances.
1) If the party can show there is newly discovered material evidence that could not, with reasonable diligence, have been discovered before the hearing and produced at that time
2) An error of law occurred at the hearing
3) A material mistake of fact was made by the hearing officer.
A motion for reconsideration or rehearing shall be filled with the division office in Lansing and served on the opposing party if any within 21 days after the date of the hearing officer's decision.
Not having a license can be a real hardship on your ability to work, and take care of your family. I understand this, and want to answer your questions.
Winning Michigan Implied Consent HearingIf you have been arrested for a DUI in Michigan, and refused a chemical test, you no longer have your driver's license.
This article is about winning the Implied Consent Hearing in order to get your license back.
The first issue is whether there was a reasonable grounds for your arrest. The police officer must have a reasonable belief that you have committed a Michigan drunk driving offense. An officer will usually point to a combination of factors that lead to his reasonable grounds for the arrest. The standard is preponderance of the evidence rather than beyond a reasonable doubt, because this is a civil matter. If the officer can only point to one factor, which lead to his or her reasonable grounds, your attorney will argue this is not enough, and you may win the hearing.
The second issue the police officer must show that you were placed under arrest for a Michigan drunk driving offense. There must be a valid arrest in order to meet this second standard. One example of an invalid arrest is based upon jurisdiction; if the police officer never observed you driving in the officer's jurisdiction then makes an arrest outside the jurisdiction, this is an invalid arrest. If you are not initially arrested for a Michigan drunk driving offense, and refuse a chemical test, this refusal would not qualify under Michigan's Implied Consent Act.
The third issue is whether you refused to submit to the chemical test at the request of the officer. If you are found to have reasonably refused, it does not count as a refusal under the Implied Consent Act. Many defendants have challenged this issue, stating that they requested independent tests instead of the one offered by the police. The current law states that the defendant has a right to an independent test only after they have taken the officer's choice of test. If a defendant requests an attorney before taking any test, the police will usually allow the defendant an opportunity to make a phone call to an attorney regarding the breath test. Courts have ruled if the police do not grant this opportunity, and the defendant refuses, it is deemed a reasonable refusal.
A point of confusion is whether the defendant has a time limit to decide to take the breath test. The general guideline states that if the defendant takes more than an hour to decide to take the test, it is deemed a refusal. The examiner at the Implied Consent Hearing will evaluate the exact circumstances behind the refusal and decide whether your refusal was reasonable.
The last issue in the implied consent hearing is the police must prove that the defendant was advised of his or her chemical test rights. The officer is required to read these rights in their entirety. There are cases where the officer does not read the rights, but it's the officer's word against the defendant.
Police videos can be very helpful in determining whether the police complied with all four requirements.
DUI Attorney & Former Prosecutor Jonathan Paul