Michigan Implied Consent Suspensions
What follows are several excerpts from chapter 9 of Patrick T. Barone and William C. Head’s “The DUI Book.” All case law footnotes have been removed. The book is available for purchase. Most of our clients are given a complimentary copy when they retain the Barone Defense Firm.
9.1 Explanation of implied consent laws in Michigan. Breath testing in OWI cases began in the United States in the late 1930s. Not surprisingly, “chemical” testing (referring to blood, breath or urine testing of any chemicals within these biological samples taken from a subject) quickly gained the favor of the law enforcement establishment. Michigan enacted its first OWI law in 1917, and the first alcohol testing law in 1949. Just as quickly, however, drinking drivers learned to refuse to submit to such tests.
To overcome these refusals, the concept of implied consent was adopted, wherein Michigan embraced the fiction that a person who drives a motor vehicle on their highways is deemed to have consented to the chemical testing of his or her body fluids upon being arrested for an OWI offense. All laws originally permitted the person’s “implied” consent to be withdrawn (in other words, if asked to take a test by a police officer, the person could say “no”). However, when this happened, license loss penalties (or loss of the privilege to use the highways of the state where you refused) would be imposed. In 1970, Michigan passed its first implied consent law.
The types of warnings or advisements that are required under the implied consent statute include: (i) If you take a chemical test of your blood, urine, or breath administered at the request of a peace officer, you have the right to demand that a person of your own choosing administer one 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 your innocence or guilt; (iii) You are responsible for obtaining a chemical analysis of a test sample obtained at your own request; (iv) If you refuse 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; and (v) Refusing a peace officer’s request to take a test described in subparagraph (i) will result in the suspension of your operator’s or chauffeur’s license and vehicle group designation or operating privilege and in the addition of 6 points to your driver record.
In Michigan, police officers must substantially comply with the statutory warning or advisement requirements in order for implied consent penalties to be invoked. Warnings of the consequences of refusal typically must be clear and unequivocal. Inadequate or improper implied consent warnings may result in no driver license sanctions being imposed at the administrative hearing. In addition, if you submitted to the State’s chemical test, then the jury decides, after hearing all of the evidence at your trial and receiving an instruction or instructions from the judge, the appropriate remedy for this violation of your rights.
9.7. What are the driving restrictions or loss of license penalties for refusal? Significant penalties typically exist for refusing to take the breath, blood or urine test when officially and properly requested to do so by the law enforcement officer. The specific automatic penalties depend on whether this is your first arrest for OWI. The automatic suspension upon your refusal is one year for a first refusal and 2 years for a second refusal within 7 years. These are “hard” suspensions, meaning you cannot lawfully drive during the one or two year suspension period. However, a first implied consent suspension of your driver’s license can be appealed on a “hardship” basis to the Circuit Court. If the appeal is successful, then partial or restricted driving privileges can sometimes be restored to you.
9.17. How does implied consent law affect the administrative license suspension hearing in your case? The issues to be resolved at implied consent administrative hearings are limited by statute to the following: (1) Whether the peace 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 you refused to submit to the test upon the request of the officer, whether the refusal was reasonable; and (4) Whether you were advised of your implied consent rights.
While the burden of proof at an implied consent hearing is always on the state to prove by a preponderance of the evidence that a violation of the implied consent rules occurred, this burden is typically met by introducing the report, statement, or testimony of the arresting officer. If your attorney can compel the attendance of the officer at your hearing, it is important that your attorney vigorously cross-examine the arresting and testing officers and get a transcript of the sworn testimony from the hearing officer, because it is often the only evidentiary hearing allowed prior to trial. Liberal discovery may be permitted in implied consent administrative cases, and the testimony or other evidence produced here might provide a winning defense strategy for your attorney.
9.18.1. Appeals from an Adverse Ruling from an Administrative Court. In Michigan, the hearing officer’s decision may be appealed to the courts, but a de novo hearing is not allowed. The court hearing the appeal must review the case based on the record established at the implied consent hearing. There are two types of appeals from these implied consent hearings, hardship appeals and legal appeals. For a “hardship” appeal, your attorney is simply arguing to the Circuit Court that not having a driver’s license is a hardship for you, and he or she asks the Court to exercise its discretion in ordering the Secretary of State to return a partial or restricted driving privilege to you. On the other hand, a “legal” appeal is one where your attorney argues that the decision of the hearing officer was incorrect, as a matter of law when he or she found that you violated Michigan’s implied consent law. If this appeal is successful, it may result in a restoration of your unrestricted driving privilege.
9.18.2. Winning or Losing the Administrative Hearing Will Not Affect the Criminal Case Afterward. Many of the issues determined at the implied consent hearing are identical to those faced in the criminal trial of the OWI offense. However, because the implied consent proceeding is deemed to be a civil proceeding and because of the differences in the burden of proof in the two proceedings, the doctrines of res judicata and collateral estoppel have consistently been held not to be applicable to the proceedings. Neither the prosecutor nor you are usually bound in one case by a finding in the other. Thus, if the hearing officer at the implied consent hearing finds that your stop or arrest was legally valid, this has no absolute effect on your underlying criminal case, which will nevertheless continue uninterrupted.