In Michigan, when you operate a motor vehicle, you consent to certain rules. The rule book in Michigan, specifically under 2014 PA 315, provides that a person who operates a motor vehicle on a public highway or other place open to the general public or generally accessible to motor vehicles within this state, including an area designated for the parking of vehicles, is considered to have given consent to chemical tests of his or her blood, breath, or urine to determine the amount of alcohol, controlled substance, or another intoxicating substance, or any combination of them, if the person is arrested for one of the enumerated crimes in the statute, including the principal drunk driving offenses along with several other major driving offenses, and the officer has reasonable grounds to believe the driver was operating a vehicle in violation of section 625 of the Michigan Vehicle Code.
What does all that mean? It means when you drive and you refuse you provide a chemical test sample, the officer can seek a warrant and force you to provide a sample, which is typically a blood draw at the hospital. This law is in place so people can’t escape providing important evidence in their DUI case; without a chemical test, prosecutions of drunk driving cases would be a lot less effective. If arrested for a DUI in Michigan, the officer must read the Defendant his/her chemical test rights, and be asked to take a chemical test; this test can be blood, breath or urine. This test can look for alcohol, drugs or both. Along with this mandated test, the Defendant may request his/her own test. If the Defendant refuses the test, they will be forced to have blood drawn via court order, and have an automatic one year suspension of their driver’s license along with six points added to their driving record. This happens no matter the outcome of the criminal case. The Secretary of State has their own power to do this to your license merely based on the refusal. The only way to possibly prevent this suspension is by requesting an implied consent hearing within 14 days. The request information and form are attached to the temporary license provided by the police officer at the time of release from jail. The officer will be subpoenaed to this hearing where the hearing officer will evaluate four issues; the rules of evidence do not apply, and the criminal standard of reasonable doubt is not in place. Here are the four issues which can be explored at this hearing. You only need to win on one to win the hearing. Anytime a client finds themselves in this position we file the hearing request and prepare to win. Unfortunately many clients contact me when it’s too late, and do not realize the consequences of the situation. (a) Whether the peace officer had reasonable grounds to believe that the person had committed a crime described in [MCL 257.625c(1)]. (b) Whether the person was placed under arrest for a crime described in [MCL 257.625c(1)]. (c) If the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable. (d) Whether the person was advised of the rights under [MCL 257.625a(6)]. The burden is on the police officer to show compliance with all four issues. While that appears to be a favorable occurrence, the standard of proof is a lot lower than criminal cases. The standard of proof at the hearing is a preponderance of the evidence (51 vs 49 percent). If the officer doesn’t show within 20 minutes of the scheduled time, the matter is dismissed; if the client does not show, the suspension goes into place on default. So how do I approach implied consent hearings? Well the first part is obtaining all of the evidence; the videos, audio, dispatch, police reports, accident reports etc. Sometimes an implied consent hearing happens before a client is even charged, because blood was drawn, which could take months to get results for the prosecutor to charge with, but the Secretary of State goes forward with the hearing. We’re looking to attack all four issues if possible, but typically you’re lucky to find an issue with one rather than all four. The first issue is “whether the peace officer had reasonable grounds to believe that the person had committed a crime described in” MCL 257.625c(1) of the Michigan Vehicle Code. This doesn’t mean a crime actually had to be committed, but rather than officer had a reasonable believe that one had been committed; a pretty low standard. Typically the officer will provide enough testimony to win on this issue. One situation where my client can win on this issue is if the officer had very little to base his arrest on. If the officer’s testimony is thin, there’s a chance of prevailing on this issue, but it’s usually not the most fruitful. The second issue that the police officer must prove at an implied consent hearing is that the person was placed under arrest for one of the crimes specified in MCL 257.625c(1). What I am looking for on this issue is the officer to testify to the crime of arrest; simply stating an arrest was made is not enough, because there are many reasons to arrest that are not under the implied consent law. If you’re arrested for reckless driving this is not under the implied consent law. Further, the person who refuses the chemical test must actually be under arrest when asked; if they are not yet under arrest then the law doesn’t apply. This situation is possible to identify by watching the videos and listening to the audio. Further, the arrest must be valid; if through cross-examination we can exploit an illegal arrest, a client can prevail on this issue. The statute states that the third issue that must be proved at an implied consent hearing is if the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable.” MCL 257.625f(4)(c). This is fact specific, and could involve someone outright refusing or someone who attempts to take the test, but either the machine or the operator determine that the Defendant is not making a sincere effort to blow into the machine. An interesting situation arises when a client refuses but shortly thereafter says they will indeed take the test. Most officers will allow it as it is a lot easier to do a breath test vs going to a hospital for a blood test and to acquire a warrant in the middle of the night for a judge. This is called curing the refusal and the hearing officer will hear all sides of the story to determine the reasonableness of the refusal if the officer doesn’t allow the curing. Some common themes that arise with the third is choice of test. Under current Michigan law, the Defendant cannot choose which test to take. So if a Defendant says, yes I agree, but I will only take a urine test, that will be a refusal if the officer wants to do blood or breath. The choice is with the officer only. Another theme is right to counsel; Michigan courts have long held that the defendant has no right to counsel before or during a police-administered chemical test inasmuch as the testing procedure is not considered a critical stage in the criminal proceedings. Although this seems like a closed issue; courts have said that if a Defendant requests to call a lawyer as long as it’s a reasonable request and does not delay the process, a phone call is allowed; if that is denied then the refusal may not be reasonable and the case can be tossed out. Ultimately, the issue is whether the driver’s refusal was reasonable based on the totality of circumstances existing at the time of the refusal. If a client has hemophilia, diabetes or a condition requiring the use of an anticoagulant under the direction of a doctor then the Defendant does not need to consent to the withdrawal of blood. It would be reasonable under the law for this person to refuse, and the sanctions would not apply. The fourth and last issue the police must prove at an implied consent hearing is that the Defendant was advised of the chemical test rights stated in MCL 257.625a(6)(b), which provides that a person arrested for one of the crimes enumerated in MCL 257.625c(1) must be advised of all of the following: (i) If he or she takes a chemical test of his or her blood, urine, or breath administered at the request of a peace officer, he or she has the right to demand that a person of his or her own choosing administer 1 of the chemical tests. (ii) The results of the test are admissible in a judicial proceeding as provided under this act and will be considered with other admissible evidence in determining the defendant’s innocence or guilt. (iii) He or she is responsible for obtaining a chemical analysis of a test sample obtained at his or her own request. (iv) If he or she refuses the request of a peace officer to take a test described in subparagraph (i), a test shall not be given without a court order, but the peace officer may seek to obtain a court order. (v) Refusing a peace officer’s request to take a test described in subparagraph (i) will result in the suspension of his or her operator’s or chauffeur’s license and vehicle group designation or operating privilege and in the addition of 6 points to his or her driver record. These instructions are listed on the back of the Officer’s Report of Refusal to Submit to Chemical Test and Michigan Temporary Driving Permit, which is handed to you. An officer will typically read it word for word and let you look at it; the officer will usually put his initials on the paperwork to indicate it was read. When I am reviewing this issue, I review the form itself, and the audio and video, which may have recorded the reading of the rights. What I’m looking for in this situation is for the video or audio to show that the instructions were not read properly or the conversation between my client and the police officer contained inconsistent or improper information. Sometimes a Defendant asks for additional information or advice; the officer is trained to not engage in these requests, and just stick to the script, but many officers don’t do that. If the officer says the wrong thing or misleads or confuses my client outside the chemical test rights then we may have a winner on issue four. The Michigan Vehicle Code mandates a driver responsibility fee payable to the Secretary of State, on notice of a conviction, for drivers convicted of certain offenses. This fee is in addition to any other penalties. The driver responsibility fee for drunk driving offenses are
Note that 2014 PA 250 added MCL 257.732a(11) to reduce and phase out the fees starting October 1, 2015: (b) A fee assessed under subsection (2)(a) or (b) shall be reduced as follows: (i) For a violation that occurs on or after October 1, 2015, 100% of the fee shall be assessed for the first year and 50% for the second year. (ii) For a violation that occurs on or after October 1, 2016, 100% of the fee shall be assessed for the first year and no fee shall be assessed for the second year. (iii) For a violation that occurs on or after October 1, 2018, 50% of the fee shall be assessed for the first year and no fee shall be assessed for the second year. (iv) For a violation that occurs on or after October 1, 2019, no fee shall be assessed under subsection (2)(a) or (b). Failure to pay the fees will result in the suspension of the offender’s license. MCL 257.732a(5). A payment plan for fees above $500 is allowed under MCL 257.732a(4). The Secretary of State may authorize payment by installment for a period not to exceed 24 months. MCL 257.732a(4). Alternatively, the driver may engage in community service. Id. If payment is not received or an installment plan is not established after the time limit (30 days) required by the Secretary’s second notice, the Secretary must suspend driving privileges until the assessment and any other fees prescribed under the Michigan Vehicle Code are paid. Under MCL 257.319(18), a person with a restricted license is allowed to drive in the course of his or her employment or occupation and to and from any combination of the following:
(i) The person’s residence. (ii) The person’s work location. (iii) An alcohol or drug education or treatment program as ordered by the court. (iv) The court probation department. (v) A court-ordered community service program. (vi) An educational institution at which the person is enrolled as a student. (vii) A place of regularly occurring medical treatment for a serious condition for the person or a member of the person’s household or immediate family. (viii) An ignition interlock service provider as required. You must “carry proof of his or her destination and the hours of any employment, class, or other reason for traveling and [must] display that proof upon a peace officer’s request.” MCL 257.319(18). There is no provision in the statute that defines proof of destination. To comply with the intent of the statute, it is recommended that anyone using a restricted license for work purposes should have a letter from the employer stating hours and territories and places visited. A college student should carry his or her class registration papers. Carrying a probation order should speak to probation visits, community service, and court-ordered alcohol or drug treatment. If driving for medical treatment purposes, your client should carry the doctor or medical facility’s phone number to confirm the appointment. The arresting officer must confiscate the Michigan license of a driver who allegedly either (1) refused a request for a chemical test at the time of the arrest or (2) took a chemical test that was offered by the officer or performed under a court order and that reveals an unlawful alcohol content. Out-of-state driver’s licenses are not subject to confiscation. The officer then issues a temporary driving permit to the driver. MCL 257.625g(1). As used in this provision, unlawful alcohol content means the following:
(i) If the person tested is less than 21 years of age, 0.02 grams or more of alcohol per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. (ii) If the person tested was operating a commercial motor vehicle within this state, 0.04 grams or more of alcohol per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. (iii) If the person tested is not a person described in subdivision (i) or (ii), 0.08 grams or more of alcohol per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1, 2018, 0.10 grams or more of alcohol per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. Michigan driver's license points are only entered for the highest infraction. For example, if you are cited for multiple offenses of Careless Driving (3 points), Operating While Intoxicated (6 points) and Limited Access Speed 6-10 Over (1 point), you can only receive 6 points on your license.
If you accumulate 12 or more points within 2 years, this will cause a re-examination by the Michigan Secretary of State. At this hearing, you may have your license revoked, suspended or restricted along with other terms imposed on your driving ability. If your license is suspended or restricted, this decision can be appealed to the circuit court, but a license revocation cannot be appealed by your attorney. Here are point breakdowns for common offenses, pulled directly from the secretary of state website. Your attorney will be able to give you a more in-depth breakdown of your particular offense, and the impact on your license. Six Points: Manslaughter, negligent homicide, or other felony involving use of a motor vehicle. Operating under the influence of liquor or drugs. Failing to stop and give identification at the scene of a crash. Reckless driving. Unlawful bodily alcohol content of 0.08 or more. Refusal to take a chemical test. Fleeing or eluding a police officer. Four Points: Drag racing. Operating while visibly impaired. Under age 21 with any bodily alcohol content. 16 mph or more over the legal speed limit. Failure to yield/show due caution for emergency vehicles. Three Points: Careless driving. Disobeying a traffic signal or stop sign or improper passing. 11 through 15 mph over the legal speed limit. Failure to stop at railroad crossing. Failure to stop for a school bus or for disobeying a school crossing guard. Two Points: 10 mph or less over the legal speed limit. Open alcohol container in vehicle. All other moving violations of traffic laws. Refusal of Preliminary Breath Test (PBT) by anyone under age 21. License lost due to a drunk driving conviction?
If you've been arrested for a DUI in Michigan, it's likely that your driver's license has been confiscated.The police are required to confiscate your license if you fail a chemical test (0.08 or above) or refuse to submit to a chemical test pursuant to a court order. If you fail a breath test, you will be given a DI-177B license, which is a temporary driving permit. If you submitted to a blood or urine test and the results are not available yet, you will be given a temporary license, but if the results come back under a 0.08, you will be re-issued your ordinary license. If you refused to give a sample, you will be issued a temporary driving permit along with a form (DI-93) that is a request for an implied consent hearing, which should be sent to the Driver Assessment and Appeal Division (DAAD). You have 14 days from the date of your arrest to request an implied consent hearing from the DAAD, which allows you to make the police prove four issues at a hearing. If you do not request a hearing within 14 days this will cause an automatic one year suspension of your driver's license, and a two year suspension if this was your second refusal within seven years. Once the implied consent hearing is requested, it must be scheduled within 45 days, and be resolved within 77 days. With these particular scheduling procedures, it's likely that you will appear in court for the misdemeanor charges before attending the implied consent hearing, which is to your benefit. Having a pre-trial prior to the implied consent hearing will allow your attorney to receive discovery including all police reports generated from your arrest. A first refusal results in a one-year Michigan driver's license suspension, and a second refusal in seven years results in a two-year suspension of your license. At the hearing there are four issues. The answer must be yes to all four issues in order for it to be a valid refusal. 1 - Did the police officer have reasonable grounds to believe the defendant committed a crime listed in MCL 257.625c(1)? (Covers must drunk driving offenses) 2 - Was the defendant placed under arrest for one of these crimes? 3 - Did the defendant reasonably refuse to submit to a chemical test requested by an officer? 4- Was the defendant advised of his or her chemical test rights? First time offenders can petition the circuit court for a restricted license, but repeat offenders cannot. The refusal under the Implied Consent Act is a civil infraction, which has no affect on the criminal proceeding, but it is also not discharged if you are acquitted on the Michigan drunk driving charges; it's a totally separate charge. In addition to license suspension, refusing a chemical test could result in six points on your license. So you can be acquitted of drunk driving, but still get six points on your license for refusing a chemical test. There is no plea bargaining at the implied consent hearing, but if the officer does not show, you will keep your license. The defendant has the opportunity to testify at the implied consent hearing, but does not have to take the stand. The defendant's testimony should only address the four issues at hand. If you fail to appear in court or fail to pay fines or costs, the court will inform the secretary of state who must then suspend your Michigan driver's license; the license will not be reinstated until the court informs the secretary of state that the matter has been resolved. Appealing the DAAD? If your license has been revoked by the Secretary of State, you can appeal for reinstatement with the Driver Assessment and Appeal Division (DAAD). The DAAD is the only avenue to appeal a revoked or denied license due to multiple Michigan drunk driving offenses. If your license is currently revoked, there is no immediate action to take. If you have entered a sobriety court, you may have been issued a restricted license. The DAAD is the governing body that approves the removal of an interlock device under the Michigan Super Drunk Law. If you are serving your first revocation, and your one-year non-appealable revocation has passed, you may be eligible to appeal the subsequent denial of the license to the DAAD. If this is your second revocation, you must wait a five-year period before being able to appeal a subsequent denial. During your mandatory suspension, the DAAD will send you a package containing material that is meant to guide you through the early steps necessary to improve your chances of winning an appeal. The packet is geared toward substance abuse, and it gives you the ability to setup an appointment with a substance abuse therapist or agency for an interview and evaluation. When you go to your interview, you should bring a copy of your driving record from Michigan, and any other statement which you have lived in the past ten years. You should also bring letters of sobriety, therapy, treatment and your substance abuse evaluation form, which was mailed in your packet. The standards for a repeat drunk driver to receive a restricted license in Michigan are the following: - The person seeking appeal must show by clear and convincing evidence that any alcohol and substance abuse problems are under control and likely to remain under control - The risk of repeating past abuse is low or minimal risk. - The risk of repeating the act of drunk driving is low or minimal risk - The person seeking appeal has the ability and motivation to drive safely and within the law - You must prove that you have abstained from the use of alcohol or controlled substances for everywhere from 6 to 12 months At the hearing you should have a witness who will testify to your sobriety; the more contact this person has had with you, the better witness they will make. You should be ready to discuss the steps you have taken to find sobriety in great detail. If you are denied a Michigan restricted license, the hearing officer may want you to seek further treatment before driving. If you are successful in receiving a Michigan restricted license, you must have an ignition interlock device on your vehicle. Once you have the restricted license, you can eventually apply for an Administrative Review, which is a hearing to be granted full driving privileges. Sometimes it is advisable to have a face-to-face meeting for this review, but it is not mandatory. For this hearing, you will also need to submit community proofs from three sources that speak to your sobriety. Only one administrative review is allowed per year. You should have an attorney represent you during this process Michigan Drunk Driving - What is Sobriety Court and what are the benefits of getting into it?2/22/2016
When reviewing sentencing alternatives in a Michigan DUI case, one option is a Michigan sobriety court. Sobriety courts vary across the state with different requirements and different eligibility requirements; some courts only take repeat DUI offenders, some take DUI first offenders.
A Michigan sobriety court is an intensive probation program, which includes a mix of daily breath testing, daily Alcohol Anonymous meetings and counseling. Some sobriety courts will lessen the testing and requirements if the participant is doing well in the program. Along with these requirements, probation officers conduct home visits, which are random searches for alcohol in the defendant's residence. Entering a Michigan sobriety court allows for a restricted license after 45 days as long as an interlock device is installed in the vehicle. With the interlock device installed, the individual will be able to driver under the normal Michigan restricted driver's license exceptions. The time frame for having restrictions will be the time it takes to complete the Michigan sobriety court or the period of time that the driver's license would have been revoked for either one or five years. If you fail to comply with the sobriety court, you will receive the original required revocation of your license. As a participant in a Michigan sobriety court, you must pay all of your cost fines and costs or your restricted driver's license will be suspended. During your enrollment in sobriety court, your Michigan driver's responsibility fees do not need to be paid immediately, but must be paid upon completion of the program. As a participant, you are also exempt from any mandatory vehicle immobilization or forfeiture as long as you remain in good standing and successfully complete the program. Under a new pilot program adopted in Michigan, the court must immediately notify the Secretary of State if a Michigan sobriety court participate is removed from the program, the court becomes aware that a participant operates a car not equipped with an ignition interlock device or has tampered with the device, and if a participant has been charged with a new Michigan drunk driving charge. Entering a Michigan sobriety court is not easy for the participant or the family of that person. The participant cannot have any alcohol in their home, which means nobody in the home can have or own alcohol, and the family must deal with random searches for probation officers. Entering a Michigan sobriety courtwith an interlock device on the family car may cause issues for other driver's, and if another driver blows a positive blood alcohol content into the interlock device, most courts will deem that result a positive test for the defendant. Entering a Michigan sobriety court is on a voluntary basis, and it is common for the participant to sign a contract giving up certain rights as a condition to enter the program. Michigan sobriety courts are an excellent option for someone charged with drunk driving; the program offers great support and help, which can have a lasting impact on their life. One downside to a Michigan sobriety court is that a judge will allow you to enter the program, but hold jail-time over your head. If you fail to complete sobriety court, most judges will impose the maximum jail sentence even though you were very successful in the program for a number of months. If you've been charged with drunk driving in Michigan, and a Michigan sobriety court is an option, you must thoroughly discuss this option with your attorney before proceeding. The implied consent law became effective in Michigan on November 2, 1967. The law provides that any driver operating a motor vehicle on state highways in places open to public view or in places generally accessible to motor vehicles must consent to a chemical test for bodily alcohol content (BAC) if he or she is arrested for certain violations.
A driver’s refusal to voluntarily take a chemical test may result in the suspension of his or her license by the Secretary of State. It is thus possible for a driver to be found innocent of a drunk driving offense and still lose his or her license if he or she refuses to take a chemical test. If the driver consents to the breath test, he or she has satisfied the requirements of the implied consent law and need not consent to any other kind of chemical test, including blood or urine tests. (Saliva tests are no longer given.) A driver must submit to the police-administered breath test before pursuing a test of his or her own choice. If you've refused the chemical test, you will have 14 days to appeal this suspension, and have a hearing to determine whether or not you indeed refused, and if your license will be suspended for a year. |
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