Do I have the right to a lawyer for a chemical test in Michigan? Implied Consent Triggered?7/7/2017
Many clients have asked me in the past if they were entitled to seek legal counsel when making the decision whether or not to take a breath or blood test - it would make sense that someone should have the proper legal advice when making such a big decision, but the law doesn't necessarily agree with that common sense.
In the context of a criminal prosecution, 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. The Holmberg case did recognize that the “more commendable” police practice would be to allow an individual a phone call to counsel before administering the chemical test. Significantly, in the civil context of the implied consent law, the court of appeals has ruled that, when the police arbitrarily deny an individual an opportunity to telephone his or her counsel before taking a breath test, the individual’s resulting refusal to take a Breathalyzer test was reasonable and the individual’s license should therefore not be suspended under the implied consent law. Ultimately, the issue is whether the driver’s refusal was reasonable based on the totality of circumstances existing at the time of the refusal. The argument to be made is that the client's refusal to submit to a chemical test was reasonable where the client was confused about the chemical test rights and the refusal was prompted by a coercive and arbitrary police policy or decision not to allow a telephone call to counsel to alleviate the confusion. I have many clients who refuse a test when offered, but then change their mind and want to take a test soon after - Most officers will allow the driver to take the test. Unfortunately, some will not. In these situations, the Administrative Hearings Section hearing officer must determine whether the recanted refusal constitutes any refusal at all, let alone an unreasonable refusal.
The more time that elapses between the client’s initial refusal and his or her subsequent consent and request to take the test, the more likely it is that the client will be found to have unreasonably refused. |
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