The penalty for refusing a breath alcohol test is harsh: a one-year license suspension with no guarantee for a restricted license upon completion. 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 test anyone they want. They have to have a solid 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 results of a preliminary breath test (pbt)
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 Preliminary Breath Test (PBT), there could be a strong case that there was not enough probable cause to arrest thereby, making the refusal ineffective.
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 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 okay 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 to 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.
HARDSHIP RESTRICTED LICENSES FOR REFUSAL SUSPENSION
If a license is suspended for six months because of a chemical test refusal, a hardship restricted license can be requested. It must be performed at the circuit court in the county in which the licensee resides. A petition for a restricted driver’s license must be filed, in which the Attorney General will then respond. The Court will usually grant the license, provided they are assured that there will not be any continued drunk driving. Generally, a substance abuse evaluation is necessary.
It is a good idea to negotiate with the assistant attorney generals assigned to the case before the court date to receive their stipulation. That will make the process a lot smoother and increase the chances of success. It is also necessary to demonstrate a real hardship, which means showing that there are no reasonable alternatives. Such defenses for this include public transportation not being available and that a licensed household member cannot help.
A restricted hardship license can be granted for the entire six-month term and can have reasonable restrictions including:
- Driving to, from and during the course of employment,
- reasonable hours,
- no set hours, and
- driving to all court ordered obligations including community service and probation.
Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer providing high quality legal representation in the area of state and federal criminal defense for 19 years. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case, and is prepared to take on complex legal issues with success. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.
Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He is also an active member of the National Association of Criminal Defense Attorneys and has also graduated from their National Criminal Defense Trial College in Macon, Georgia.
Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012, 2013 & 2014 for DUI/DWI and criminal defense by DBusiness Magazine and Hour Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2017 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”