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What Happens If You Refuse to Submit to a Breath Test?

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What Happens If You Refuse to Submit to a Breath Test? implied consent michigan

If you refuse to submit to a breath test after being arrested for a DUI, you’re violating Michigan’s “Implied Consent Law.”

This is a civil infraction punishable by two (2) years of a suspended license and six (6) points on your driving record, if found guilty.

Below, we outline Michigan’s Implied Consent Law, exceptions to the law, and how you can potentially avoid this.

Facing an Implied Consent refusal violation? Want to keep your drivers license? Request a free consultation now. 

If You Refuse to Submit a Breath Test During the DUI Stop

During your traffic stop, the police officer likely requested you to perform certain tests.

These tests, called field sobriety tests, are used to give the police officers “reasonable suspicion.”

This is so they can request that you submit to chemical tests to determine your blood alcohol content (BAC). 

There are two types of tests that provide an officer with a measurement of your BAC, which are explained below:

Preliminary Breath Tests (PBT)

As you may recall, the first test is called a Preliminary Breath Test (PBT). 

This test is often performed at the traffic stop with a hand-held, portable device. 

You may recall yourself blowing into a straw attached to the device for 5-10 seconds.

After that, the machine produced a number that supposedly measured your BAC.

In Michigan, if this number is above 0.08 (the legal limit), then the officer has “probable cause” to arrest you for drunk driving. 

Facing an Implied Consent refusal violation? Charged with DUI or unhappy with your current attorney? Request a free consultation now. 

Standardized Field Sobriety Tests

However, before asking you to submit to a PBT, the officer must’ve performed at least three (3) Standardized Field Sobriety Tests.

In addition to these tests, the officer might’ve asked you to perform other so-called “tests,” such as: backwards alphabet or counting backwards from one random number to another. 

However, these are not admissible and shouldn’t be used solely to prove intoxication. 

If your performance on these tests provided “clues” of intoxication, the officer then can ask you to submit to a PBT.

Whether you took the PBT or refused, the officer then arrested you on suspicion of DUI.

Whether you’re arrested because of the PBT results, or for failing the field sobriety tests and refusing to submit to the breath test, the officer then had probable cause to require you to submit to further chemical tests. 

Facing an Implied Consent refusal violation? Want to keep your drivers license? Request a free consultation now. 

Michigan’s Implied Consent Law: The Chemical Test

Michigan’s Implied Consent Law requires drivers to submit to chemical analysis of their blood alcohol content (BAC) in the event of a drunk driving arrest. 

According to the law, by being a licensed driver in the state of Michigan, you consent to a chemical breath test after a DUI arrest.

Typically, officers ask arrested suspects to blow into a “datamaster” device at the station

This device measures the alcohol content of exhaled air by running it through an infrared device. 

Additionally, a urine or blood test can test the BAC. 

You reserve the right to request a specific type of test (i.e., breath, blood, or urine) if you have certain medical conditions, including:

  • Diabetes
  • Asthma
  • Hemophilia

This is because certain tests are easier or safer for those with these conditions to submit to than another. 

Generally though, if you refuse to submit to a breath test after arrest on suspected drunk driving, you’ll receive a civil infraction.

While this violation carries no jail time, it requires an immediate two (2) year suspension of the driver’s license.

Additionally, you’ll get six (6) points on your driving record, which is the highest number of points under Michigan law. 

Other traffic violations with this amount of points include manslaughter involving the use of a motor vehicle and fleeing and eluding a police officer.

Therefore, your car insurance rates will drastically increase.

This is in addition to whatever sentence given to you if you’re convicted of a DUI.

Facing an Implied Consent refusal violation? Want to keep your drivers license? Request a free consultation now. 

Preparing for the Administrative Hearing

If you’re charged with drunk driving and refused the breath test, it’s important that you contact a lawyer immediately. 

They can present the best possible defenses and save your driver’s license.

You only have 14 days to appeal the implied consent refusal suspension with the Secretary of State (SOS). 

An experienced DUI lawyer can prepare you for the SOS administrative hearing.

Additionally, they can negotiate with the prosecuting official to dismiss the implied consent refusal charges. 

At this hearing, the hearing officer will determine whether the police officer’s request was lawful or not. 

That is: was there probable cause to believe a crime was committed? 

Police must advise a suspect of the implied consent law, their rights to have their choice of type of chemical test, and the consequences of failing to comply. 

Therefore, a skilled lawyer will examine the arrest and booking videos to see if the police complied with the law. 

Even if the SOS determines that the suspension is valid, you can still file a Circuit Court Hardship Appeal for the license suspension. 

A hardship appeal is an application to the Circuit Court for a court-ordered restricted license.

If granted, this will allow you to go to and from work, school, medical appointments, and other essential locations. 

Typically, a court-ordered license has a curfew. However, this will tailor to your schedule. 

Oftentimes, judges require intense court supervision. 

This includes random testing, and in some cases, attending support group meetings, as a condition of the restricted license.  

Facing an Implied Consent refusal violation? Want to keep your drivers license? Request a free consultation now. 

What To Do If You Refused to Submit to a Breath Test

An experienced and proven DUI attorney will thoroughly review all the facts and circumstances related to all of the following: 

  • the initial traffic stop
  • pre-arrest investigation
  • post-arrest chemical test procedures

This is all to find (and successfully present) your best defense. 

Even if you refused to submit to a breath test, a skilled attorney will help you get a court-ordered license.

Facing an Implied Consent refusal violation? Want to keep your drivers license? Request a free consultation now. 

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Barton Morris
Barton Morris has been providing high-quality legal representation in the area of state and federal criminal defense for more than 20 years.
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