HOW TO FIGHT A CHEMICAL TEST REFUSAL AND KEEP YOUR LICENSE FROM BEING SUSPENDED
The penalty for refusing a breath alcohol test is harsh: a one year license suspension with no guarantee for a restricted. If someone has been arrested for suspicion of DUI Michigan law is designed to give the police the upper hand. They can demand you take a chemical test of their choosing, either a breath alcohol or blood test. If they suspect operating under the influence of drugs they will definitely request a blood test as that is the only way, currently, to find and measure drugs in your body like marijuana.
If a person is accused of a refusal, they have the right to fight it with the secretary of state. That can also be appealed to a circuit court judge. There are three ways to effectively fight a DUI chemical test refusal.
1. Challenge the lawfulness of the arrest
The police cannot arrest and then test anyone they want. They have to have a good amount of evidence that someone is under the influence before they can arrest and test. This level of evidence is called probable cause which is defined as an amount of evidence that would cause a reasonably cautious person to believe that evidence exists of a crime. Therefore, all of the evidence before the arrest must be analyzed including:
- the reason for the stop
- the administration and performance of field sobriety tests
- the administration and result of a preliminary breath test (pbt)
So, for instance, if someone was pulled over for speeding, then the officer failed to properly administer the field sobriety tests then did not properly administer a pbt, there could be a strong case that there was not enough probable cause to arrest thereby making the refusal not effective.
2. Question whether there was an actual refusal
Some officers will call a person’s actions a refusal which can often be fought effectively. For instance if a person is arrested for DUI and asks legitimate lengthy questions about the process, the officer may get annoyed and call that occasion as a refusal. This is not a refusal as it is not unreasonable for an arrested person, particularly if they have been drinking alcohol and their judgment being impaired, to ask questions even if they are lengthy. It is ok if a person is confused about the process and wants to take the time to make sure they are making the right decision. If the officer cites a refusal before an arrested person has actually refused, this can be effectively challenged.
3. Question the reasonableness of any refusal
If an arrested person asks for reasonable accommodations in return for agreeing to take the test and the officer declines, this can also be challenged effectively. For instance, if a person would like to speak to an attorney before taking the test and the officer refuses this reasonable request, courts have held that this refusal is reasonable and their license cannot be suspended. Similarly, if a person wants to go the bathroom first or makes any reasonable request before taking the test, this can also save someone’s license from being suspended.
If these arguments do not work, the arrestee can still get a restricted hardship license by asking a circuit judge.