Most Michigan drivers don’t know much about DUI / OWI procedures, the types of tests a police officer will administer to determine whether a driver is intoxicated, and how a DUI prosecution will proceed. But when a driver is pulled over under suspicion of drunk driving, they need to make an important decision: should I submit to breathalyzer testing?
Some drivers mistakenly believe that refusing the test means they cannot be convicted of a DUI / OWI. Others believe that they are required to submit to the test. And most drivers are unaware of the penalties for refusing to take the breathalyzer test.
So, really, there is no simple answer to the question, “Should I submit to breathalyzer testing?” To put you in the best position to understand the laws that apply to Michigan breathalyzer testing and to allow you to make an informed decision about whether or not to take the test, it is important that you have a basic understanding of Michigan DUI / OWI law and how it could apply to your situation.
Under Michigan’s implied consent law, by driving on a public highway, you have given the police consent to test your breath or urine for the presence of alcohol or drugs if they believe you are under the influence. Police must obtain your consent or a court order to administer a blood test. They must also have probable cause to believe you are under the influence and cannot randomly test drivers.
If you refuse a breath or urine test, you violate Michigan’s implied consent law and are subject to a one-year license suspension. You will receive a notice stating that you have 14 days to contest the finding that you refused the test by requesting an administrative hearing. The police officer can also confiscate your driver’s license, destroy it, and replace it with a paper permit. You can use the paper permit until the administrative hearing date.
Someone who is suspected of DUI / OWI will actually receive two different types of breathalyzer testing. The first is a preliminary test, sometimes called a PBT, that is administered at the side of the road. Police officers use this test to confirm their suspicions that you are under the influence of alcohol. This test does not test for the presence of intoxicating drugs.
You are not required to submit to the PBT, although you may receive a fine for a civil infraction.
The preliminary breath test is intended to help the police decide whether to arrest you. They will likely also administer Field Sobriety Tests (FSTs) to bolster their case.
Refusing both the PBT and the FSTs can benefit your case by depriving prosecutors of some key evidence that they will use to try to convict you of a DUI / OWI.
If you refuse the preliminary breath test or if the police officer suspects you are under the influence, you will be placed under arrest and taken to the police station, where you will be asked to submit to a second breath test.
Most Michigan police departments use the DataMaster Breathalyzer test. Law enforcement agencies believe this machine is more accurate than the preliminary breath test, and the results of this test can be introduced at trial as evidence of your alleged intoxication. If you refuse this test, you violate Michigan’s implied consent laws and face the following penalties:
And even if you refuse the breath test at the police station, police can obtain a warrant and require you to submit to the test. They can also request a warrant to test your blood.
While you are not required to submit to the breathalyzer test at the police station, there is little benefit to refusing it. And even if you are ultimately found not guilty of the DUI / OWI charge, you still face penalties for refusing the test, which can include a one-year driver’s license suspension.
Deciding whether or not to take a breath test in Michigan is complicated. Hopefully, it is not a decision you will need to make. But if you are pulled over under suspicion of a DUI / OWI, it is best if you have already thought about what you will do and whether you will submit to the breath test.
If you are ultimately charged with a DUI / OWI, Elmen Legal can help. I can act as your guide to the court system, provide advice, and serve as your advocate. And if you did submit to a breath test, I can mount an aggressive legal defense to challenge the test results and defend you against the charges.
At Elmen Legal, I am proud to represent people who have been charged with a Michigan DUI / OWI in Ann Arbor, Saline, Pittsfield Township, Chelsea, or Ypsilanti, in Washtenaw, Wayne, Monroe, Lenawee, Hillsdale, Jackson, Ingham, Livingston, and Oakland Counties.
Learn more about Michigan criminal defense attorney Robert Elmen, get answers to Frequently Asked Questions, and learn why clients choose to work with Elmen Legal. Then contact Elmen Legal or call (734) 707-8915 to schedule a free and confidential consultation to discuss your situation and how Robert can help.
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