I would strongly encourage you to have an experienced DUI lawyer attend this hearing with you.  If the implied consent is upheld, you will have 6 points added to your license and your license will be suspended for a year.  

The officer will show up and testify, you will have the opportunity to cross-exam them.  You will have the chance to testify, and the officer can cross-exam you - if you have a lawyer, your lawyer would do the questioning and help prepare you.

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)].

Part (a) means the cop can't arrest you for a DUI based on a hunch; they need probable facts and observations such as driving operation of the vehicle, some sign of intoxication or impairment, usually officer observations, field sobriety tests, incriminating statements and PBT test.  

Part (b) means the cop can't arrest you for possession of marijuana, resisting arrest or any other non-DUI offense, because the implied consent would not be triggered for those offenses.

Part (c) means the person arrested said something other than "YES" to taking the chemical test - wishy-washy responses, delays, unclear responses are all considered refusals by every hearing officer that I've appeared before in Michigan

Part (d) means the chemical test rights were read by the officer usually off a standard form.

In my experience, I've found part (a) to be the most fruitful for taking testimony, while part (b) is fruitful for tricking the cop when multiple charges are part of the case.  Parts (c) and (d) are tricky to win because cops have been trained to stick with the standard protocol and don't deviate from the standard operation.  

As a former Oakland County and New York City prosecutor, I've been on both sides of DUI deals for the past 10 years.  Everything from DUI cases barely over the legal limit, to serious felony drunk driving charges, all come down to the choice between resolution and trial; most get resolved, but some go to trial.  

One particular creative solution that our law firm has used comes with the implied consent issue, and using that as a negotiating tool when most defense lawyers, and prosecutors wouldn't even think to discuss it. 

When a client has a one-year suspension and six points hanging over their head regardless of the outcome of their criminal case, the floor is certainly lower on the ultimate result.  I've beaten drunk driving cases in the criminal courtroom, but my client still lost their license, because they refused the chemical test.  We ultimately went the circuit court hardship appeal route, and got the license back, but there's a way to avoid that.  

Prosecutors and cops work together on cases, and have an open line of communication; this applies especially when working with a city or township prosecutor, and not the county.  It may be possible to make the implied consent part of the deal you work out.  Although the prosecutor has no say over the hearing, they can certainly tell their officer not to show, and allow you to win by default as part of the deal, or the defendant can withdraw their appeal and lose the the implied consent issue on purpose as part of a deal.

Our firm has found that pulling back the implied consent appeal and working out a better DUI criminal case deal, but then streamlining the hardship appeal process at the circuit court is a very good option, and something that other attorneys wouldn't even think to do.  

If you're dealing with both an implied consent issue and a criminal charge, let's discuss options to keep your license, and dismiss and or reduce some of your criminal charges.  

In Michigan, if you refuse a chemical test, the officer will submit an implied consent refusal to the Michigan SOS, which will take away your license for a full 365 days if you do not appeal it.  If you appeal it within 14 days, you get a hearing at your local SOS office where the cop comes in and testifies to the hearing officer on the four points. 

(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)].

I recently held a hearing where the facts allowed me to corner the officer into admitting that my client was placed under arrest for resisting arrest before he even did the field sobriety or PBT testing to make an arrest for drunk driving.  

I did a limited cross-examination focused on this one issue, and got EXACTLY what I wanted from the cop; he said - yes, I arrested him for resisting arrest.  This was perfect, because it was directly against point (B) as it is NOT a drunk driving offense listed by law, and the implied consent would not apply to resisting arrest. 

Despite my plan working, the hearing officer heard the same thing, and said WHAT, officer so and so, didn't you then also arrest him for drunk driving later on.  The cop was able to fix his mistake and he met his burden - the hearing officer was allowed to do this, but I wish he didn't because it should be up to the police officer to do his job. 

My client will now appeal for hardship with the circuit court and we will hopefully get him back on the road again.  

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.  
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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. ​

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. 
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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.

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.  ​