In The News

Thursday, June 20, 2013

Always Ask for a Lawyer When Offered a Chemical Test – The Impact of “Hall vs State” at Secretary of State License Hearings

By Michael Nichols
Categories: Wendy M. Schiller-Nichols, Drunk-Driving, OWI

Michigan’s Implied Consent Act states that everyone is “deemed” to have consented to a chemical test. However, that does not mean that the officer is allowed to prevent you from seeking advice from an attorney when you have been arrested on suspicion of drugged or drunk driving. Wendy Schiller-Nichols found a defense for a client in Eaton County to a ‘refusal’ charge before the Secretary of State when the officer “refused” to let the man try to contact an attorney after his OWI arrest.

Schiller-Nichols won the driver’s license appeal before the Secretary of State in Lansing for her client, who otherwise would have lost his license for year.  If you refuse to take the breath test at the police station (referred to as the Datamaster or Datamaster DMT), then your driving privileges will be revoked for 1 year.  You have 14 days to request a hearing with the Secretary of State. Once you make the request on a timely basis, the officer has the burden of proving by a preponderance of the evidence that 1. You were reasonably stopped/detained for suspicion of drunk or drugged driving; 2. You were validly arrested; 3. You were read your chemical test rights; 4. You unreasonably refused, (MCL 257.625f).

Wendy Schiller-Nichols’ client was arrested for Operating While Intoxicated, Resisting Arrest and leaving the scene of an accident causing personal injury.  The client refused to take the breath test that was offered on the street (PBT) and the breath test at the police station (DMT).  He requested a hearing with the Secretary of State.  Attorney Wendy Schiller-Nichols appeared and politely talked to the officer to see if he would agree to dismiss the refusal. However, this Deputy was adamant that he would not agree to a dismissal because the client was very difficult during the whole arrest process. 

Wendy Schiller-Nichols ran the hearing and after testimony by the Deputy, she successfully argued that her client did not understand the chemical test rights and requested to speak to an attorney, thus his refusal was reasonable. The Hearing Officer agreed.  The Deputy testified that when asked about an attorney, he responded that he did not have to allow the man to talk to an attorney because a driver consents to the breath test when he receives his driver’s license.  Wendy Schiller-Nichols argued that, in this case, it was similar to Hall v State, wherein the Court of Appeals stated that in some situations, a person can be considered to have reasonably refused the breath test when the person requests an attorney.  Wendy Schiller-Nichols argued that all the Deputy had to do is allow her client 15 minutes to call an attorney.  No harm would have resulted to the Deputy’s investigation because the client had already been in custody for approximately 3-4 hours.  Further, the client was not requesting to talk to an attorney to waste time. 

For the attorneys who fight for their clients, know the law and are not afraid to win, contact the Nichols Law Firm at 517.432.9000 or e-mail Wendy at wsnichols@nicholslaw.net


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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.