Should I Refuse the Breath Test If Stopped for DUI in Michigan?

Why Does Michigan’s Law of Implied Consent Exist?

The first DUI laws went in the books all the way back in the 1950s when cars where just starting to become very common. Back then, there were no breath tests, so that law enforcement tool in a DUI investigation was not available to police officers. That only happened ten years later, in the 1960s. Technology has improved a lot since then, and the law has changed too, because the law of implied consent is younger than the first breath tests. Back in the “olden days” people could refuse a breath test in a drunk driving case without an possible sanction. That is no longer true, and today, there are serious consequences if you unreasonably refuse to to a breath test.

The Michigan Law of Implied Consent

Michigan’s implied consent law is designed to compel breath tests from people who have been pulled over under suspicion of DUI in Michigan. The idea, often repeated by hearing officers and judges, is that by taking your driver license you have consented to providing a breath or blood sample on the reasonable request of a police officer. This is not actual consent to take a breath test. Instead, it is implied that you have given your consent to a chemical test.

However, well established Fourth Amendment law demonstrates that implied consent, like the consent for any search, can always be withdrawn. Consequently, even in the face of this implied consent, if you’re being investigated for drunk or drugged driving, the police must nevertheless ask you to take a breath or blood test. And you have the right to say no.

This breath test requirement in a DUI investigation is implied consent, and this is why the law enforcement must read you rights then ask you if you consent to the search of your breath. Before answering this question you have a right to talk to an criminal DUI attorney. You can always say no, which is withdrawing consent.

This OWI defense attorney near me can advise you if you should take the test or not. If you’re wondering how you would find such a Michigan OWI attorney, you might think to do a web search for OWI lawyers near me or even best DUI lawyers in Michigan.

What Happens If I Refuse to Be Tested?

A roadside breath test is one of four things police use as part of standardized sobriety testing in a driving under the influence investigation. However, a PBT (preliminary or roadside breath test), which is really just one of four field sobriety tests commonly used, is not admissible in court. Also, a refusal of the roadside test will not result in a driver license sanction.

It is the test back at the station, taken after you’ve been arrested for a violation one of Michigan’s DUI laws, that is covered by the implied consent law. If you refuse to take this test, then the police can’t get your breath or blood without a warrant.

This is true regardless of if the criminal defense attorney near me you talked to told you to take the test or not. But your license will be suspended for at least a year, sometimes two, and 6 points will be added to your record. And in nearly 100% of the refusals, the police will just get a warrant anyhow and thereby get your blood by force. So, you can’t avoid being tested by refusing.

For more information on this topic, see Breathalyzer Refusal and Implied Consent

Does Everyone Have a Right to Refuse to be Tested?

No, but unless someone was seriously injured or killed because of an accident related to your OWI arrest, you have the right to refuse to allow the police to take a blood, breath, or urine sample from you. And if you are unconscious and/or otherwise incapacitated, either because you are unconscious, incoherent, or unable to consent for whatever reason (including being too intoxicated), you lose your right to refuse too.

This is one of the DUI laws in Michigan that will not result in jail time. And, and experienced DUI lawyer might even be able to keep you from losing your license too. In the best case scenario, your criminal DUI lawyer will help you avoid a DUI conviction all together.

Is There Anyone Who Should Refuse to be Tested?

Probably not. But it boils down to a balancing test. If you believe that a drunk driving conviction would be life changing, then maybe the hit you’ll take to your driving privilege and record is worth it. An intoxicated driving case is much more difficult for the state if there’s no breath or blood test.

What Are the Different Types of DUI in Michigan?

First, it’s important to understand that the police use many different acronyms to describe the crime of driving under the influence To begin with, DUI and OWI both mean driving under the influence. And to make this even more complicated there are different types of DUI, including the two theories of OWI, i.e., OUIL and UBAL.

Not all of these crimes require the police to have a breath or blood test. In fact, it’s not impossible, so even if the prosecutor has no breath or blood test because of your refusal you might still get convicted. And jail sentences are always possible after being convicted of any or all of Michigan’s various OWI charges.

Also, if you refuse the breath the police will still get your blood. So, you end up in a worse position because the government has generally more reliable evidence, that being a blood test, to use in their case. So, you’ve not really gained much.

What Will Happen to Me if I Refuse to Take a Breath Test After My DUI Arrest in Michigan?

If this is the first time this has happened to you, then you will not be able to drive for a full year because your driver license will be suspended. If you’ve violated this law before, then your license will be suspended. You can appeal this suspension, so long as you file your notice of appeal within 14 days of your DUI arrest. At the hearing the police officer will have the burden of prove and must prove that he or she had good reason to think you were drunk driving, that you were arrested for a DUI crime, that you were read your chemical test rights, and that you said no when asked if you’d take a chemical test.

If the police officer fails to prove all four elements, then you will win your appeal, and your license will not be suspended for one year. It will be as if it never happened. You may still face charged for your underlying DUI criminal case, and if you get convicted, then you could get a separate driver license sanction for that.

If you’d like to learn more about what happens at an implied consent hearing, and how a criminal drunk driving lawyer from the Barone Defense firm can help you win your implied consent appeal, then contact us for a free case review.

How Can You Win an Implied Consent Case?

There are many possible defenses to a violation of an implied consent case. First of all, the officer who arrested you might not show up. If this happens you win by default. Also, good cross-examination and a good argument from an experienced DUI lawyer can help show that the police officer didn’t meet one or more of the four requirements talked about above. If this happens, then you win, and your license will not be suspended.

In an Intoxicated Driving Trial, Will the Jury Know I Refused?

If the prosecutor brings it to their attention, then yes, and most good prosecutors will be sure of that. This is because the law in Michigan supports this, even if it might look like consciousness of guilt.

In Michigan, though, there is a standard jury instruction that tells the jury that they not consider the refusal in any way, and that the only reason it came into evidence is to prove that a test was offered. However, it’s impossible to “un-ring the bell” and the jury may nevertheless conclude your refusal was because you knew you were drunk.

How Do I Find one of the Best DUI Attorneys in Michigan?

Like pretty much anyone today, you’ll begin your search with a phrase like best DUI attorney near me. Then take that list, and start looking at credentials, training, book or chapters authored, teaching positions, reviews and sample cases. Handling it this way will help you find on the best DUI attorneys in Michigan. If you’d like to learn more about this topic, see our prior article on how to find a Top Rated DUI Lawyer in Michigan.

What Should You Do if You’re Facing a DUI Charge in Michigan?

If you are facing a drunk driving case in Michigan, call the DUI defense lawyers at the Barone Defense Firm for a free consultation. Our phones are answered 24 hours, and the criminal DUI attorneys at the Barone Defense Firm are considered to be among the best DUI attorneys in the State. In fact, the entire law firm is designed to provide legal representation to people like you who have been charged with OWI in Michigan. The Barone Defense Firm also represents clients throughout the State of Michigan.