People vs. MJB

Court: DLAD – Southfield
Hearing Officer Merian

The client was arrested for OUIL and since he refused the breath test, was also charged with the civil matter of "implied consent". [Additionally, during the subsequent investigation of the case it was found that the client had at least two prior convictions within the appropriate time period so he was ultimately charged with the felony OUIL 3rd Offense]. After meeting with the client we immediately filed an appeal of the implied consent matter, thereby demanding a hearing with the Secretary of State's Driver License Appeal Division.

At the hearing the arresting officer testified that he observed the suspect's car speeding, crossing over the center line, and traveling eastbound in a northbound. He stated that for these reasons he effectuated a traffic stop. The officer stated that upon contacting the driver he noticed a smell of intoxicants and that he slurred his speech. The driver was given several field sobriety tests which he failed. He also refused the preliminary breath test. The Officer testified that he arrested the client for OUIL and advised him of the chemical test rights. The Officer indicated that he had offered a breath test, but that this was refused, so a warrant was obtained to draw blood. The blood was drawn at a nearby hospital.

At the close of testimony we argued that the Officer had not met his burden of proof relative to the chemical test rights because he never testified what form he read from, and did not produce any form nor admit any form into evidence. The hearing officer found in a written opinion that the officer had failed to prove by a preponderance of evidence issue four, i.e., whether petitioner was advised of the chemical test rights under section 625a(6) of the Michigan Vehicle Code.

Consequently, the client did not lose his license as a result of refusing the breath test, nor were 6 points added to his driver license. Instead he remained driving on the "625g permit" (paper license).