If you are pulled over for suspected drunk driving, you are generally put through some field sobriety tests, concluding in a preliminary breath test (PBT) where you blow into a device and it checks your breath for blood alcohol levels. Then if the levels are above a certain amount, the officer will arrest you and take you to do a more formal blood alcohol test. This is either done though a breathalyzer called a Datamaster, or they draw  blood and send it in for testing.

If you do not wish to take the PBT or blow into the Datamaster, or allow blood to be drawn you have every legal right not to. The officer will then attempt to get a search warrant from the judge to allow him to have your blood drawn and checked. The potential criminal situation continues down that path.

What you might not be aware of is that there are driving penalties associated with refusing to take the PBT, Datamaster or allow your blood to be drawn. The Secretary of State has its own penalties associated refusing these procedures. In Michigan there is an Implied Consent law. Which means that as a driver, in order to drive, you are consenting to these tests should an officer reasonable ask for them.

The officer has at his discretion the decision to go forward with alerting Secretary of State of your implied consent refusal. Secretary of State will then suspend your license for a full year, with no restricted license available, in addition to 6 points being added to your license. This is mainly independent from the criminal charges, if your blood alcohol level was above a .08.

You do have an opportunity to fight this by appealing and having a hearing on the matter in front of (or most likely by video) a Secretary of State hearing administrator. There are four things that will be looked at

  1. If the officer had reasonable grounds to believe that you had committed a crime of operating a vehicle while intoxicated,
  2. Whether you were placed under arrest for this crime,
  3. If your refusal was reasonable, and
  4. Whether you were advised of your implied consent rights.

The burden is on the Government, in most cases the arresting officer, to prove that you violated the implied consent rule. The level of proof is by a preponderance of the evidence, which means anything over 50% sure that the implied consent rule was violated.

If you get an adverse ruling from the Secretary of State official you still have the opportunity to appeal to the Circuit Court where the offense took place. However, no new evidence can be presented, that judge will look at the evidence presented and transcript from the previous hearing and decide your case on either a hardship request or look at it for legal error.

Implied consent violations sneak up on you because people usually are not focused on possible Secretary of State action when looking a criminal charge in the face. However, we at Coltrane & Nye can help you.

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