Basics of an Implied Consent Violation
Michigan’s Implied Consent Law comes into play when a driver is pulled over for drunk driving, arrested, and the driver refuses the DataMaster Breathalyzer test or a consensual blood draw. Refusing the breath or chemical test will result in an implied consent violation and a one-year driver’s license suspension. Michigan allows a hardship appeal to the Circuit Court for a driver’s first implied consent violation/suspension. Lawyers, the Police, and the Secretary of State call this an Implied Consent Violation. Every driver in Michigan, as a condition of receiving their driver’s license, provides consent for the Police to test the driver for alcohol, upon a showing of reasonable grounds. After a driver is arrested for a DUI, the police will read the driver’s chemical rights from a standardized form. A copy of the rights are located here, at the end of the form is the exact language read to the driver:
If the driver’s answer is “no,” then the police officer will seek a warrant to search the driver’s blood. A first offense implied consent violation results in an automatic one-year suspension. Losing driving privileges for an entire year is difficult, however, there is a Hardship Appeal available to the driver. In Traverse City Michigan, your typical driver’s license sanction after a first offense drunk driving is one month of suspended driving privileges, followed by five months of restricted driving privileges, for a total of six months. Similarly, the driving sanction for a conviction of impaired driving, the lesser included offense of regular drunk driving, is three months of restricted driving privileges. Finally, the driving sanction for super drunk driving is either a one-year suspension of driving privileges or a 45-day suspension followed by 320 days of restricted driving privilege with BAIID installed in the automobile. Time is of the essence with an Implied Consent Violation. The driver only has 14 days to request and submit the form for a hearing to review the implied consent violation before the Secretary of State. A link to the form follows:
Why it is important to request a hearing for an implied consent violation.
If the driver is facing a first offense drunk driving and has an implied consent violation, then not requesting and attending a hearing will limit the available issues to appeal to the Circuit Court. In addition, a driver may win at the S.O.S. hearing and not have any suspension. If a driver does not hold the Secretary of State hearing, they are pinning all their hopes on a Hardship Appeal in the Circuit Court.
The Implied Consent Hearing with the Secretary of State
There are four issues to be determined at the hearing:
1. Whether the peace officer had reasonable grounds to believe the driver committed a crime described in MCL 257.625c(1)[
2. Whether the driver was placed under arrest for a crime described in MCL 257.625c(1)[drunk driving].
3. If the driver refused to submit a chemical test upon the request by the peace officer, whether the refusal was reasonable.
4. Whether the driver was advised of his/her rights under MCL 257.625a.[the chemical test rights]
The hearing is normally very brief and the only witness is the arresting police officer. The following are some of the fact patterns that allow a successful defense at an implied consent hearing. 1) The police officer doesn’t read the chemical test rights. 2) The police officer relies upon someone else’s observations but fails to call the other witness to the hearing. 3) The DataMaster test records a refusal for the driver, but the driver never stopped trying to provide a good breath sample. It is important for the reader to realize that what is reasonable depends on the facts and circumstances of the case. Each case is different, there is no substitution for an attorney’s opinion of the case after determining all the facts.
The Hardship Appeal to Circuit Court
For either an unsuccessful hearing for an implied consent refusal or no hearing at all, a driver is still able to appeal to the Circuit Court based on hardship for the driver. The Petitioner/Appellant must show a hardship due to the loss of driving privileges. The inconvenience will not cut it. Area’s of hardship may include the following: 1) Difficulty with work; 2) Lack of public transportation; 3) Inability to provide caregiving, and 4) home geographic difficulty. An important element of the hardship appeal is for the driver to continue with drug and alcohol counseling, AA, mental health counseling etc.. The continuation of these conditions of probation will assure the prosecutor that the public would be safe if the Judge reduces or eliminate the implied consent suspension.
How Implied Consent Violations discriminate against the poor
A large percentage of drunk driving defendants cannot afford legal representation. When this happens, the local courts will appoint a criminal defense attorney to represent an indigent defendant. Court-appointed attorneys will not represent an indigent defendant at a Secretary of State implied consent violation hearing, it is not something the local courts and counties will pay for. As a result, many people that should hold a hearing do not because of the cost. I will represent the indigent for a reduced fee.
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About the Author:
Matthew Benedict is a driver’s license restoration attorney practicing law in all of northern Michigan, including Ludington, Mount Pleasant, Manistee, Gaylord, Kalkaska, Petoskey, St. Ignace, Traverse City, and Sault Ste. Marie.
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