I refused the test, now what happens?
Breath Testing
Michigan’s implied consent law requires that you take a breath blood or urine test upon the lawful request of a police officer. If you refuse, then you will be charged with an implied consent law violation, and will face possible license suspension for one year. Six points will also be added to your driving record. If you have a prior refusal in the past 7 years then your license will be suspended for two years.
The best way to know if you’re being charged with an implied consent violation is by looking at your paper license. It will either be a DI-177 or a DI-93. If it’s a refusal then your paper license will say “DI-93” in small letters in the upper left hand corner, and indicate on it “report of refusal.” If your paper license does not contain this information, then you are not being charged with an implied consent violation.
If you are charged with an implied consent violation, then in order to save your license you or your attorney will need to make a demand for a hearing, which is called an appeal, within 14 days of your arrest. A failure to do so will result in the applicable license suspension being imposed. You will learn of this suspension by mail.
If you or your attorney do make a demand within 14 days, then there will be no license suspension unless and until you conduct and lose your appeal hearing.
At the implied consent hearing the police officer will appear and will testify about your refusal. If the police officer does not show up, you win by default, and your license is not suspended. If the officer does show up, (and they almost always do), then he will have the burden of proof. You appearance at this hearing is not mandatory.
There are only four issues that can be raised at the implied consent hearing. They include the propriety of the stop and the arrest, whether or not the implied consent rights were properly read to you and whether or not you reasonably refused. If you can show that the police officer has not met his burden as to any of these issues, then you will win the hearing, your appeal will be granted. This means that your license will not be suspended.
On the other hand, if the police officer meets his burden of proof relative to all four issues, then your license will be suspended, and the period of suspension will be either one or two years. If yours is a first implied consent violation, then the suspension will be for one year, and you have the right to appeal the suspension, on a hardship basis, to the circuit court. This appeal could result in having restricted driver license privileges restored. If yours is a second implied consent suspension within the requisite period, then your license will be suspended for two years, and there is no hardship appeal. Either way you will have a right to a legal appeal.
Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!
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This post was written by...
baronedefensefirm – who has written 204 posts on Michigan Drunk Driving Law Firm.
Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.
