DUI Survival Guide - Implied Consent 101
In Michigan, the implied consent law can really impact someone's ability to drive a vehicle. In sum, you can never be charged with drunk driving, have your case dismissed, win at trial or have your case reduced, but still lose your license an entire year.
Under MCL 257.625c, provides that a person who operates a motor vehicle 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.
A person arrested for one of the specified crimes must be read statutory chemical test rights by the police, under MCL 257.625a(6)(b), and then asked to take a chemical test of his or her blood, breath, or urine to determine the presence and amount of any alcohol, controlled substances, or both.
If the person refuses the police chemical test, the police may obtain a search warrant to obtain a blood sample and then have it tested for alcohol and or controlled substances.
Significantly, under the implied consent law, a person who refuses a proper police request for a chemical test will have his or her license suspended automatically by the Secretary of State unless he or she requests an implied consent hearing to contest the suspension within 14 days of his or her arrest.
The penalty for a first implied consent refusal is a one-year suspension of driving privileges. In addition, six points will be placed on the individual’s traffic record for any implied consent refusal.
I meet with many new clients who have no implied consent issue, because they agreed to take a blood or breath test, but the clients who have an implied consent issue, if the 14 days have passed, there is nothing I can do about that specific issue, but we do have the issue of a Circuit Court Hardship Appeal.
If we're within the 14 days of the implied consent law being triggered, I will file the appeal with the Secretary of State, and we will plan for a hearing down the road.
Frankly, most implied consent hearings end up with the client having the suspension upheld as the hearing itself is limited to four issues:
(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)].
If the officer does not show, the client wins by default and the suspension does not go into place. If the officer shows, the hearing is held on these four issues, and I have the chance to question the officer, and my client may testify as well. Most of these hearings have indirect benefits, which actually help our criminal case rather than win this actual hearing, but we have the backup of the Circuit Court Hardship Appeal to get a restricted license for the client.
The vast majority of implied consent hearings do not focus on the first two issues, so I want to focus on the last two issues.
The third issue is ripe for exploration at this hearing, which focuses on my client's refusal to submit, and whether it was a reasonable request.
At the hearing, we're looking to show that my client never refused to submit to a police request for a chemical test or that the refusal was reasonable, based on the totality of the circumstances existing at the time.
I've had clients agree to take chemical tests or the officer never actually asks, but rather gets a warrant first, and they submit the implied consent hearing paperwork to the Secretary of State. In these cases, we will try to make use of an video or audio of this conversation, or my client may need to testify to this conversation.
When it comes to the "reasonable" factor, a common issue is the "Operator Refusal" which occurs when the operator decides that the suspect is not making a sincere effort to provide a breath sample.
After the DataMaster DMT display reads “PLEASE BLOW,” a subject has two minutes to provide a breath sample. If an inadequate sample or no sample is received, the DataMaster DMT display screen will ask “Did the subject refuse?” followed by “YES” and “NO” buttons. The officer must then decide whether the suspect is making a sincere effort.
If the officer pushes “YES,” the instrument will print the word “REFUSED” on the evidence ticket and the test is completed. If the officer pushes “No,” the screen will indicate “INCOMPLETE” on the subject test line and the subject will be given another two minutes.
If no adequate breath sample is provided for the second time, the instrument will again ask whether the subject refused. If the officer pushes “YES,” the word “REFUSED” will be printed on the evidence ticket and the test will be concluded. If the officer still believes the subject is making a sincere effort and pushes “NO,” the instrument will print “INCOMPLETE TEST, THIS IS NOT A DAAD REFUSAL” on the evidence ticket (“DAAD” refers to the former Driver Assessment and Appeal Division, now known as the Secretary of State’s Administrative Hearings Section (AHS)).
A new testing sequence is then begun, with the subject given yet another two minutes to provide an adequate breath sample. If the subject fails to provide an adequate sample on this third try, the instrument will again ask “DID THE SUBJECT REFUSE?” But this time the DATAMASTER DMT training manual directs the officer to answer “YES,” and the instrument will print the words “OPERATOR REFUSAL, THIS IS A DAAD REFUSAL”.
If we have an operator refusal situation, we cannot allow the officer to simply state that them machine determined a refusal - a ticket that reads "INCOMPLETE" is not a refusal; the operator must offer a new test. Same holds true for the "INVALID SAMPLE". The current manual and previous editions make clear that “INVALID SAMPLE” is not a refusal for implied consent purposes and, further, that a refusal to submit to a second test after a reading of “INVALID SAMPLE” is also not a refusal, as the suspect is required to give only one breath sample.
Likewise, an “INTERFERENCE DETECTED” reading on the evidence ticket means that a chemical substance other than ethanol is being detected. In this event the test will be aborted. Again, this is not a refusal, nor is the refusal of a suspect to provide a second sample afterwards, if requested.
Requesting a lawyer during the process may also lead to a hearing officer ruling that a refusal was reasonable.
Former NYC & Michigan Prosecutor
Another avenue to show reasonableness is under MCL 257.625c(2) that states that “[a] person who is afflicted with hemophilia, diabetes, or a condition requiring the use of an anticoagulant under the direction of a physician is not considered to have given consent to the withdrawal of blood.”
For this reason, the refusal of a person afflicted with one of the named afflictions to submit to a police request for a blood test would be legally reasonable and should not result in the suspension of driving privileges at an implied consent hearing.
The fourth issue is - 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.
It's usually the officer's word against the defendant's which won't work, so it's best to hopefully have a video, or an officer who will admit that he went outside the rules and offered additional legal advice to the defendant. A chatty officer is a path to winning on this fourth issue.
Even though these rights may go in one ear and out the other ear of a defendant, or the client may not even understand English, the officer has done his job if he/she simply reads them word for word and says nothing else.