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Implied Consent Hearings

Under Michigan law, your use of roads and highways is held to show your implied consent to provide breath alcohol testing. MCLA §257.625c. Thus, there are consequences for your refusal to submit to the testing, that you have “impliedly consented” to giving.

If you have refused breath alcohol testing, you have 14 days from the date of the arrest, within which to request a hearing before a Secretary of State Hearing Officer. Failure to request that hearing within 14 days will result in a 1 year suspension of driving privileges, plus six points on the driving record. A second refusal within 7 years is punishable by a 2-year suspension, plus six points.

There are four, and only four issues discussed at an “implied consent” hearing:

  1. Whether the officer had reasonable grounds to believe you were driving under the influence;
  2. Whether you were in fact arrested for this offense;
  3. Whether you refused to submit to the test, upon the officer’s request AND whether that refusal was reasonable; and
  4. Whether you were advised of your chemical test rights under MCLA §257.625a(6)

Of course, there is much more detail and nuance that goes into each of these categories. For example, what constitutes a “refusal”? What makes a refusal “reasonable”?

Other Important facts about “implied consent” hearings:

  1. The burden of proof is on the officer, although you and I will have the burden of proof as to any affirmative defenses; the standard is “preponderance of evidence”, and not “beyond reasonable doubt”
  2. Because these hearings are often held via video link, appointment times are STRICTLY enforced. I make sure my clients show up 20-30 minutes early.
  3. The hearing once requested must be scheduled within 45 days of the arrest. One adjournment may be granted, and then for no longer than 14 days.

Facing an implied consent hearing?

Avoid mistakes and driving suspension.

Learn more about Michigan DUI Laws & Protections.

Michigan recently enacted enhanced penalties for first time drivers, whose blood alcohol level exceeds .17%. Under Michigan’s new “Super Drunk” law, including mandatory one-year alcohol rehabilitation, a one-year license suspension, the first 45 days of which is a so-called “hard suspension”, meaning no driving at all; during the remaining 320 days, the driver can seek restricted driving privileges, but only if monitored by a breath alcohol ignition device (or “breath interlock device”), installed and maintained in the vehicle, at the expense of the driver... Continue reading.

Using the Widmark formula, as breath alcohol testing machines do internally, and mechanically, you can calculate the anticipated blood alcohol level one would expect from consuming a certain amount of beer, wine, or hard liquor. One can also calculate how many drinks of different types of intoxicant, it would take to elevate one’s blood alcohol level to a given number. Constants are built into this well-accepted formula, to account for physiological differences between men and women, and between heavier and thinner people... Continue reading.

If this is a first time offense, YOU SHOULD COMPLY WITH BREATH ALCOHOL TESTING. You will likely be able to retain your driving privileges, and there is no reason to risk a 1 year suspension of your license.
.. Continue reading.

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