I have represented many people facing a drunk driving charge. Within the general pool of first offense, drink drivers are the people that refuse a chemical test after being arrested. In Michigan, once arrested, the police read a standardized form explaining the client’s chemical rights. This usually occurs once the client is placed under arrest and is sitting inside the police vehicle. The police officer chooses the test, either a DataMaster breathalyzer or a blood draw, which tests for bodily alcohol content. The chemical rights form instructs the client that if they refuse the chemical test, then the Michigan Secretary of State will suspend their license. What the chemical rights statement doesn’t do is express the suspension related to an implied consent violation. The sanction is a one-year suspension of driving privileges; which is more severe than the six-month sanction for a standard drink driving conviction. When the client realizes that they have made the consequences worst for themselves by refusing, the first question is how do you get the implied consent suspension dismissed?
Law and Procedure
The first thing that the client needs to understand is that there are two governmental bodies at work during a DUI and implied consent violation. There are the local courts; the county prosecutor, judges, and defense attorneys processing the Operating while intoxicated charges. The local courts process the criminal charge. The client’s driving privileges are administered by a different governmental body, the Michigan Secretary of State. Long ago the Michigan legislature decided that the Courts need not deal with driving privileges, the Secretary of State handles operator license sanctions. The second bit of information the client needs to understand is how fast the Secretary of State handles an implied consent violation. Once a client refuses a chemical test, the police complete a form that is immediately sent to the Secretary of State. The client has 14 days to request a hearing before the Secretary of State to determine if the client unreasonably refused the chemical tests. If the client doesn’t request the hearing, then the one-year suspension will be ordered and the notice mailed to the client. The client’s only remedy is to file for a hardship appeal in the Circuit Court. However, if the client requests the hearing, then the secretary of state will schedule the hearing in the near future. The important thing to know is that the Secretary of State moves much faster than the local courts. If the client requests the hearing before the initial two weeks run, then it may be possible to negotiate a dismissal for the implied consent suspension.
R 257.305(4) states:
A police officer party or a prosecuting attorney may withdraw a report filed under section 625d of the act or section 80188, 81138, or 82144 of the natural resources and environmental protection act. If the police officer party or a prosecuting attorney withdraws a report under this subrule, then the department shall not take action under 625f of the act . . . A police officer party or a prosecuting attorney shall make a withdrawal in writing and shall file the withdrawal with the division office in Lansing or with the hearing officer.
What this administrative rule indicates is that a police officer party, the arresting police officer, or a prosecuting attorney, may file a written withdrawal of the report created and filed immediately after an implied consent refusal.
There is no magic formula to negotiate an implied consent dismissal. Prosecutors and their personalities vary between counties. Some prosecutors may be receptive to the idea dismissing an implied consent suspension when their case is not very strong, or when the hardship due to the suspension will be severe. Other prosecutors just state they have no control over what the Secretary of State does related to driver’s licenses, which is not true, they can intervene under R 257.305. My point is that under the right circumstances, it may be possible to negotiate the dismissal of an implied consent suspension.
About the Author
Matthew Benedict is a driver’s license restoration attorney in Traverse City, call today for an appointment. 231-883-4170