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Refusing OWI Testing

Michigan drivers who refuse to provide a blood, breath, or urine sample in the context of a drunk driving investigation will be penalized under Michigan’s implied consent laws. These penalties, which include the suspension of your license and points added to it upon its restitution, are administrative in nature. In other words, they are completely unrelated to your criminal OWI case. Under a change to the law, however, you may receive criminal penalties for refusing to blow into a breathalyzer at the roadside.

When you get arrested for OWI, you will find yourself fighting on two fronts: your criminal case and your administrative license suspension case. A skilled and experienced Michigan OWI attorney can help you achieve a good outcome on both fronts.

At Davis Law Group, our goal is to reduce the strain of facing an OWI charge while providing an effective defense to our clients’ criminal and administrative cases.

What Happens If I Refuse a Preliminary Chemical Test at the Roadside?

Michigan’s preliminary chemical test laws may be activated by one of two situations:

  • A police officer notices you driving erratically, and pulls you over on the suspicion that you are operating while intoxicated
  • A police officer pulls you over for another valid reason (traffic infraction or mobile checkpoint), and during the interaction gains the suspicion that you are intoxicated

Basically, once the officer has reasonable believe you are intoxicated, the law requires that you cooperate with the officer as they take steps to determine whether you are intoxicated. At the roadside, the officer may ask you to:

  • Perform field sobriety tests, which are a series of tasks that supposedly only sober people can successfully complete
  • Submit to a preliminary, roadside breathalyzer test

You may refuse to do either, but you will be charged with a civil infraction if you refuse to take the breathalyzer. Although Michigan’s legislature considered making it illegal to refuse a field sobriety test, that provision didn’t make it into the final law. By refusing to submit to either preliminary test, you will reduce the amount of evidence the prosecutor may use to convict of OWI. However, it is likely that the police officer will arrest you for OWI if you refuse to cooperate at this stage of the investigation.

What Happens if I Refuse to Give a Sample Once I’m Arrested?

If the police officer gains probable cause to believe that you are intoxicated while operating a vehicle, they will arrest you for OWI. Probable cause may be gained from the results of a roadside breathalyzer or field sobriety test, or the officer’s subjective observations. Once you’re in custody, the authorities will request that you submit a breath, blood, or urine sample to determine whether you are intoxicated. The result of these tests will be used later on to prove that you are guilty of OWI.

If you refuse to give a sample, you will be reducing the amount of evidence that the prosecutor can use against you. But, on the other hand, your refusal may result in the following penalties:

  • First refusal – One-year driver’s license suspension and six points added to your license
  • Second refusal – Two-year driver’s license suspension and six points added to your license
  • Third refusal – Five-year driver’s license suspension and six points added to your license

Can I Challenge the Suspension of My License?

When you refuse the test, the police will send a report of refusal to the secretary of state. You will have 14 days to contest the decision, otherwise your license will automatically be suspended. If you contest in time, your license suspension will be put on hold and you will be given the opportunity to make your case at an administrative implied consent hearing covering the following issues:

  • Did the arresting officer have reasonable grounds to believe you were guilty of OWI?
  • Were you placed under arrest for OWI?
  • Did you refuse to submit to a chemical test?
  • Were you properly advised of your right to refuse the test and the consequences of doing so?

It’s the officer’s job to prove that the answers to all four of these question are more likely to be “yes” than “no.” If you and your lawyer can point out inconsistencies or gaps in the officer’s testimony, you may be able to prevent the suspension of your driver’s license.

Often, drivers can win the hearing when the alleged refusal was based on the breathalyzer machine not getting a good enough sample to produce a test result. The officer will have a tough time showing that you didn’t make a good faith effort to provide an adequate breath sample, especially if you were cooperative at other stages of the investigation. Another way to win this hearing is to get the officer to admit that he or she didn’t have a valid reason to pull you over and to investigate you for OWI, which negates probable cause.

Call Davis Law Group Today

At Davis Law Group, we have extensive experience assisting our clients at the implied consent hearing. Not only may you be able to successfully retain your driver’s license, this hearing is a good opportunity to get the arresting officer’s statements on the record, which can be useful if your case goes to trial. If you’ve been charged with OWI or if your license has been suspended after your refusal to take a chemical test, call Davis Law Group today at for a free and confidential consultation of your case.