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Monday, June 27, 2016
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.