In The News

Monday, June 27, 2016

Officer Deviates from Implied Consent Rights - Refusal Charge Dismissed

By Michael Nichols
Categories: OWI

An MSU Police Officer failed to follow the strict reading of the Implied Consent warnings under Michigan law. As a result, a Michigan man and client of the Nichols Law Firm avoids a one-year suspension of his driver’s license after attorney Stephanie Tzafaroglou obtained a dismissal of the Implied Consent violation filed against him.

Alleged violations of the Implied Consent Act are prosecuted under MCL 257.625f. The police officers have to prove 4 prongs under the law, including that the driver unreasonably refused to grant consent to a breath or blood estimate.

At a hearing on June 22nd with the Michigan Secretary of State, the police officer testified that she deviated when advising the client of his Implied Consent rights. Video evidence of the exchange verified that the officer did not come close to advising the man of his rights. The police officer told the client multiple times that she “would” get a search warrant to obtain a blood sample. She also advised that a refusal would result in an automatic suspension of his driver’s license and 6 points would automatically be placed on his driving record.

In reality, the police officer must ask a judge to issue a search warrant. The judge then can grant or deny the search warrant. Further, a driver cited with an Implied Consent violation has the right to have an evidentiary hearing with the Secretary of State where a Hearing Officer determines whether a suspension or points will be imposed due to an Implied Consent suspension.

Additionally, the officer cited the client for an Implied Consent refusal after the client submitted multiple breath samples on the Datamaster DMT breath test instrument. The client submitted multiple breath samples, some as long as 14 seconds, but the DMT instrument would not accept his breath sample. Because the police officer could not establish that the client refused to submit to a chemical test or that he intentionally provided an insufficient breath sample, the Secretary of State dismissed the Implied Consent violation against the Nichols Law Firm client.

Obtaining the video of the administration of the breath test was crucial to the successful outcome in this case. The video made obvious to the Hearing Officer the lengthy breath samples provided by the client and the incorrect advice provided the police officer. If you need an attorney who will remain committed to results and turn over every stone in your case, please contact the Nichols Law Firm at (517) 432-9000 or stzafaroglou@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.