Mark Mandell, Esq.
Following
the U.S. Supreme Court’s decision in Schmerber
v California, Michigan was able to enact the Implied Consent Act in 1967.
Originally, it required motorists to take a blood and/or urine test at the
request of police officer when they are arrested for drunk driving. In the time
since, the Act has expanded to cover a wide range of violations, including:
felonious driving, manslaughter, operating while visibly impaired (OVI), child
endangerment, and most recently operating a vehicle with any amount of
controlled substances.
Most
often, police departments prefer a breath test in order to avoid the
foundational requirements of a blood test. In some instances, such as a serious
personal injury accident, the breath test may be unfeasible, and so a chemical
test is requested by the police officer.
While
it is possible to refuse the officer’s request, it is important that you are aware
of the potential penalties of doing so if you are found to have a blood alcohol
content (BAC) over 0.08. Currently, there is an informal guideline called the
“One-Hour Rule,” in which a person has one hour to decide to refuse or submit
to the test. Waiting over an hour is considered a refusal. Whether or not a person is over the legal
limit, refusing the test allows the police officer to confiscate their picture
license. After which, the officer will most often seek a search warrant and
will ultimately get their evidence one way or another. If the person is found to be intoxicated,
their license will be immediately suspended.
The
alleged offender and their attorney have 14 days after the date of arrest to
request a hearing. If this is not done, the offender will immediately receive
1-year suspension on their license and 6 points on their driving record if he
or she is a first-time offender. If it is their second offence in 7 years, the
penalty will be a 2-year suspension on their license and 6 points on their
driving record. Both suspensions will take effect five days after the decision
has been mailed. Since these penalties are severe, prompt action is crucial.
The
hearing will take place 45 days after the arrest, barring an adjournment from
either party. There are only four relevant matters to the hearing: Did the
police officer have reasonable grounds to believe the alleged offender
committed a crime in which implied consent was warranted? Was he or she placed
under arrest for this crime? Did the officer provide the alleged offender with
their chemical test rights? And finally, did he or she reasonably refuse to
submit to a chemical test requested by an officer?
If the
alleged is found guilty, he or she will be subject to the same penalties above
depending on whether this is their first offence or not. A first-time offender
can petition the circuit court for a restricted license in order to travel to
and from work, probation, and school, among other destinations listed in MCL
257.319(17). In addition, the circuit court has the power to affirm, modify, or
set aside a suspension for a first-time violation case. A different decision
will be contingent on new evidence that could not have been reasonably produced
for the initial hearing, an error of law, or a material mistake of fact by the
hearing officer.
