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Tuesday, March 30, 2021
By Michael Nichols
Categories: Drugged Driving
First - think back to whether the refusal was before you were placed in handcuffs or after. The pre-arrest refusal of the hand-held breath test device is not a big deal. This is the thing that is commonly called a PBT or "Preliminary Breath Test." That is nothing more than a fine under Michigan law.
The arrest triggers what is known as the implied consent law. This law is found at MCL 257.625c and enforced through MCL 257.625f. What it does is requires that you as a driver, operating a vehicle in Michigan on your Michigan driver license, or a license from another state as recognized by the full, faith and credit act to give consent to the search of your person if you are arrested for drunk driving in Michigan. Technically, this case is a civil case with the officer as the "plaintiff" and you as the "respondent" but because you are forced to start the process by filing the petition for a hearing, you are categorized as "petitioner" and the department of state is the "respondent."
A lawyer may tell you that you are "screwed" - not necessarily. You have 14 days to fill out that form the officer gave you so do not lose it. Submit it - or your lawyer should submit it - to the Secretary of State (SOS). That triggers the officer's "proof responsibility." He has to show 4 things under Michigan law at MCL 257.625f and People v Keen. This is regardless of whether the officer's theory is that you are under the influence of marijuana, alcohol, other prescription or illegal drugs or a combination.
Here is where there is a split of procedures. Some police departments and local prosecutors will negotiate a dismissal of the refusal in exchange for a plea on the criminal case. The approach to refusals is that the refusal is the product often of a person who just is unclear on what the law requires, scared, often with clouded judgment from alcohol and would otherwise be compliant.
Remember - if you are found responsible for a refusal - it is 6 points on your license and a 1 year suspension of your driving privileges. You have the ability to appeal the SOS determination to the circuit court where the case happened or file a Petition and ask for a legal appeal.
The bottom line: navigating these refusals is important and tricky. Depending on where you are arrested, the circuit judge's policies on these is important to grasp and keep in mind because that judge is probably the court of "last resort" on your driving privileges if you have a refusal "charge." It is a civil, not criminal matter but still vital to your ability to win your life back after an OWI arrest.