Can You Refuse a Breathalyzer Test?
December 15th, 2020
If you are stopped under suspicion of drunk driving, can you refuse a Breathalyzer test?
The short answer is “yes - you can.” But, like many things, it’s not that simple.
What Is a Breathalyzer Test?
If you are stopped in Michigan under suspicion of Operating While Intoxicated (OWI), police will ask you to submit to a Breathalyzer test.
Michigan uses two types of Breathalyzer test: a portable test known as a PBT (Preliminary Breath Test) that police use at the side of the road, and the DMT DataMaster Breathalyzer test that is administered at the police station.
Can I Refuse the Breathalyzer Test?
If police officers suspect that you are under the influence of alcohol, they will use the PBT to confirm their suspicions. You can refuse the PBT.
By refusing the PBT, you prevent police officers from collecting evidence that could be used to convict you of OWI. However, there is a fine for refusing the PBT. No points will be assigned to your driving record, and there are no sanctions for refusing the PBT.
You can still be arrested under suspicion of OWI, even if you refused the PBT. Even if you refuse the PBT, you will likely be arrested and taken to the police station where you will be asked to submit to a Breathalyzer test. Currently, Michigan uses the DMT DataMaster for breath alcohol testing.
You can also refuse the Breathalyzer test. But, under the doctrine of implied consent, you will face penalties including a license suspicion of up to two-years, and having six points assigned to your driving record. You can still be charged with and convicted of an OWI, which carries penalties in addition to those imposed for refusing the Breathalyzer test. And, the police will obtain a search warrant that will require you to submit to a blood test.
What Is Implied Consent?
When you obtained your driver’s license, you agreed to submit to a breath test if you were ever pulled over on suspicion of OWI. This is called implied consent. Law enforcement cannot force you to submit to a Breathalyzer test. But, if you refuse, your license will be suspended for up to two years, you will have six points assigned to your driving record, and police will request a search warrant that will require you to submit to a blood test. And you can still be charged with and convicted of OWI.
If you are arrested under suspicion of an OWI, you can refuse both the PDT and the Breathalyzer test. However, you face a license suspension and six points on your driving record, plus penalties for an OWI conviction in addition to penalties imposed for refusing the Breathalyzer test.
Ultimately, it is not advisable to refuse a Breathalyzer test. The police will seek a search warrant requiring you to submit to a blood test that can provide evidence necessary to secure a conviction. In addition, you will face penalties for both an OWI conviction as well as the refusal to submit to the Breathalyzer test. But there are other ways to fight a Michigan OWI charge.
Can Breathalyzer Test Results Be Challenged?
Even if you submitted to a Breathalyzer test, an experienced OWI defense attorney can challenge the results of the test. Your attorney can challenge:
- Whether the Breathalyzer testing machine was properly calibrated
- Whether the test was properly administered
- The frequency with which the machine was tested and calibrated
- The accuracy of the test sample
- Errors in the machine log
- The impact of your medical history on the test results
- Chain of custody
- The amount of time between when you were driving and when the test was administered
Are There Other Ways to Challenge a Michigan OWI Charge?
In addition to challenging the results of a Breathalyzer test, there are other ways an experienced criminal defense attorney can fight the charges against you. An OWI defense lawyer can challenge:
- whether Field Sobriety Tests (FSTs) were conducted properly
- whether the police officer had probable cause to stop you in the first place
- whether law enforcement had probable cause to believe you were under the influence of alcohol
What Are the Penalties for a Michigan OWI Conviction?
If you are convicted of a Michigan OWI, you face the following penalties:
|Jail Time||Fines||Community Service Hours||IID*||Vehicle Immobilization|
|First Offense||Up to 93 days||$100 to $500||Up to 360||Yes||Yes|
|Second Offense||5 days to 1 year, 30 days probation||$200 to $1,000||60 to 180||Yes||Yes|
|Third Offense||1 to 5 years, 30 days to one year probation||$500 to $5,000||60 to 180||Yes||Yes|
*Ignition Interlock Device
Charged with OWI In Michigan? Elmen Legal Can Help
If you or someone you care about has been charged with an OWI in Michigan, Elmen Legal can help. During our first meeting, I will help clarify the charges against you and the potential penalties you could face. Then I’ll protect your rights in court, fight for a favorable plea bargain, and represent you at trial if necessary.
I know that people come to me when they’re facing difficult circumstances. That’s why I take a caring and compassionate approach to practicing criminal defense law. I offer personalized attention and accessibility that you won’t find at a big firm. And I aggressively defend my clients and their rights.
If you or someone you care about has been charged with an OWI in or around Ann Arbor, learn more about my DUI / OWI defense practice, read reviews from other clients and answers to Frequently Asked Questions, then contact Elmen Legal today.
Categories: Drunk Driving / OWI