A Quick Look At Michigan's Implied Consent Law

by: Matt Newburg

02/20/2018 07:52 AM EST

Michigan, like all other states, has what is called an “implied consent” law for drivers who are arrested on suspicion of drunk or drugged driving. Michigan’s law, MCL 257.625c, says that as a privilege of having a driver’s license, you give consent to a chemical test if you are lawfully arrested by an officer who has probable cause to believe that you are driving under the influence.

When it comes to implied consent, a law enforcement officer can choose whether you take a breath, blood or urine test, although breath and blood tests are the most commonly used. Note, however, there are exceptions for diabetics, hemophiliacs or people taking anticoagulants – they don’t have to take a blood test.

Keep in mind that Michigan drunk-driving laws also say that, even if you have not been arrested, you consent to taking a preliminary breath test (PBT) on the roadside. The officer will then use the PBT results to establish the probable cause that’s needed to show you were driving under the influence. While you can refuse to take the PBT, doing so will result in a monetary fine, and it probably won’t work to your advantage if the officer has another reason to believe you were drinking and driving (i.e., you failed the field sobriety tests).

It’s important to remember a few other things about chemical tests and PBTs:

1.     A PBT and a chemical test are different. PBTs are given on the roadside, during the traffic stop. Chemical tests are given at the police department or at a medical facility, once the driver has been arrested.

2.     Even if you submitted to a PBT on the roadside, you must still submit to the chemical test after the arrest. This is because Michigan law allows police to obtain a search warrant for a blood or urine test.

Refusing A Chemical Test

If you are arrested on suspicion of driving under the influence, the officer should inform you that you may choose to have an additional chemical test conducted by a person of your choice. Note that the results of all the chemical tests, including a test by a person of your choice, are admissible in court.

In addition, the arresting officer should inform you of the consequences of refusing a chemical test, including the fact that if it’s your first offense, your license will be suspended for one year and you will have six points added to your driving record. (Note: this penalty is separate from any other legal consequences resulting from the traffic stop.) However, if it’s your second arrest in seven years and you refuse a chemical test, another six points will be added to your driving record and your license will be suspended for two years.

If you refuse to take a chemical test, the officer must give you written notice that you have 14 days to request an administrative hearing with the Michigan Secretary of State (SOS). Keep in mind that, while the State of Michigan cannot force you to take a chemical test without a court order, the officer can, indeed, get an order requiring you to take a chemical test.

Implied Consent Driver’s License Suspensions

If your driver’s license is suspended under Michigan’s implied consent law – in other words, you refused to take a chemical test – the suspension may be appealed to the SOS Administrative Hearings Section.  

Michigan law (MCL 257.625f) limits the issues that can be addressed at an implied consent suspension hearing to the following:

1.     Whether the officer had reasonable grounds to believe that you committed a crime described in MCL 257.625c(1).

2.     Whether you were placed under arrest for a crime described in MCL 257.625c(1).

3.     If you refused to submit to a chemical test upon the request of the officer, whether the refusal was reasonable.

4.     Whether you were advised of your rights under MCL 257.625a.

To request a hearing, you must mail the request for hearing form within 14 days of the date you were arrested. If you fail to do this, your driver’s license will be automatically suspended.

Mailing the request for hearing form is important because it temporarily preserves your driving privileges. It also requires the SOS to schedule a hearing, where the arresting officer must appear and prove, by a preponderance of the evidence, the four above-referenced factors in an implied consent case. If the arresting officer does not appear, then the SOS is not obligated to take any action. If the arresting officer does appear, then he must show the decision to arrest you was lawful and valid.

Although you are not required to have an attorney at the SOS hearing, it is often beneficial to have someone by your side who understands the complexities of the administrative hearing process and who can argue on your behalf. The attorneys at Newburg Law have years of experience handling driver’s license issues. If you’ve been arrested on suspicion of drunk or drugged driving, or if your license has been suspended or revoked for other reasons, contact us today at 517-505-2323 or at [email protected]