Michigan drivers are deemed to have given their consent to a breath, blood or urine test if arrested by a police officer on suspicion of OWI. "This concept of 'implied consent' has long been the law in Michigan" says OWI-OUIL-DUI expert Mike Nichols of East Lansing. If you are arrested, whether the arrest was valid or not, the officer may use the so-called 'implied consent act' to request that you submit a breath, blood or urine sample. Nichols, the author of the Michigan OWI textbook for lawyers, says: "if you refuse, the state takes your license away for 1 year."
If you refuse a chemical test, you have 14 days from the time of the refusal to demand a hearing before the secretary of state's designated hearing officer. The officer has to prove 4 things: 1. that he had reasonable grounds to stop you; 2. that he placed you under arrest validly; 3. that he read you the 'implied consent' rights and; 4. that you unreasonably withheld your consent. The officer only has to demonstrate these 4 prongs by a 'preponderance of the evidence.' "It is a low burden for the officer to carry at the hearing," Nichols said.
If you lose at the Secretary of State hearing, you still have options. You can seek a 'hardship' license from the circuit court judge or you can appeal the hearing officer's legal conclusions. The hardship appeal is more like a request based on your need to drive for work or for court and you will only be allowed to drive for those reasons during the 1 year suspension. "The appeal of the hearing officer's application of the law is called a 'record appeal,'" Nichols said. If you are successful on the legal appeal, your full license is restored. If you seek an appeal of the hearing officer's legal conclusions, you may seek what is called an "ex parte" (without the other party being heard) order from the circuit judge to keep your driving privileges in place pending the full hearing on your legal appeal. "Two times in the last week circuit judges have agreed to keep the 'status quo' in place so that the client would not be irreparably harmed by losing driving privileges that ultimately are restored based on a legal defect in the secretary of state's proceedings," added Nichols.
Mike Nichols teaches law students and other lawyers on the law of implied consent. If you need a lawyer to unturn every stone, contact him at 517.432.9000 or by e-mail at mnichols@nicholslaw.net |