Getting pulled over for drunk driving in Michigan is a painful experience, and the penalties if convicted of operating while intoxicated (DUI/OWI) are severe. People will often try to keep law enforcement from gathering evidence by refusing to take a portable breathalyzer test (PBT) or chemical test after arrest.

Many drivers are under the impression that avoiding the test will prevent the officer from making the charges stick. After all, aren’t the results of the chemical test the basis for a conviction? Many also believe that the penalty for refusal is less consequential than the OWI. But this action can also carry serious penalties in Michigan, including six points off a person’s driver’s license and license suspension for one year.

Understanding implied consent laws

Implied consent laws exist in all fifty states under the legal theory that driving on a public road is a privilege, not a right. By driving on a public road, the driver must abide by traffic laws, and so must also accept the measures that law enforcement needs to take in order to enforce those laws. Part of enforcement is being required to take a chemical test or PBT if the officer suspects the driver is impaired.

In Michigan, if the driver refuses the initial sobriety test or PBT before arrest, he will be charged with a civil offense that includes a $100 fine but no points off his license. In this way he can temporarily frustrate an officer’s attempts to gather enough evidence for an arrest on probable cause for OWI.

Refusing the second test

If the officer makes an arrest for OWI, the suspect is taken to the station for a second breathalyzer or Datamaster chemical test. Refusal of this test will result in points off and license suspension. Even if the suspect was not drinking, the refusal alone carries these penalties. In Michigan, the driver has 14 days to appeal this decision.

Depending on the unique circumstances of each case, it is possible to build a defense that may include proving that the officer unlawfully stopped and arrested the driver, or that the field sobriety tests were incorrectly administered. PBT’s can sometimes give a false-positive blood alcohol concentration (BAC) due to residue from an inhaler or mouthwash. Even the officer’s initial suspicion of OWI, that the driver had bloodshot eyes or slurred speech, could be due to medication.

Having the aid of an experienced and aggressive criminal defense attorney in metropolitan Grand Rapids is an important first step in fighting the charges and limiting the damage done in the event of a conviction.