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.
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