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Monday, September 6, 2010
By Michael Nichols
A big misconception among people is that when the police officer says that he is going to report you to the Secretary of State for refusing a chemical test following an arrest for violation the Michigan-OWI-OUIL-DUI-laws,[1] you have no chance to win your license back. That is not quite true.
If an arresting officer decides that you “refused” a chemical test, the officer has certain steps to take and things to prove if he wants the Secretary of State (SOS) to suspend your license for the implied consent violation.[2] Remember, it does not matter which type of chemical test the officer asked you to take. The officer has the ability to choose whether he wants a breath, blood or urine test. The typical test is breath or blood. A breath test can be the most difficult area when it comes to trying to prove that the arrested citizen “refused.” The officer can deem that the citizen “refused” the breath test by writing “operator” at the bottom of the pink ticket that the breath test instrument produces, even if you agreed to take the test and attempted to provide a breath sample into the machine but the machine would not produce a reading. Remember, even if you submitted to the portable preliminary breath test at the roadside, you must submit to the chemical test after you were arrested.
The officer is obligated to then notify the SOS by submitting a written report of a refusal within 14 days. The officer must also give a copy of the refusal that he is sending in to you. If the officer fails to do that then the SOS is not obligated to take any action against the arrested citizen’s license. If the officer provides to you the DI-177 form entitled “Refusal of Chemical Test” you must sign the back of the form, include your driver license number, confirm your address and notate: “all” where it asks you to indicate which issues you are fighting. So long as you mail that notice by the 14th day after you are arrested, you will accomplish 2 things. Sending in your notice of appeal preserves your driving privileges for the time being. It also obligates the SOS to schedule a hearing at which the officer who arrested you must appear and prove by a preponderance of the evidence the “4 issues” of an implied consent case. Those 4 issues include:
1. Whether the officer reasonably believed the person was violating MCL 257.625 (the OWI statute);
2. Whether the officer arrested (validly) the person for OWI;
3. Whether the officer read the arrested citizen the “implied consent” rights;
4. Whether the arrested citizen unreasonably refused the chemical test.
There are some points to keep in mind – if you go to the SOS hearing, with or without an attorney, that hearing is not necessarily the final word. If it is your 1st implied consent violation, you can then go before the circuit court on a “hardship appeal.” The hardship appeal means that you are telling the court that it would be an undue hardship to revoke your license for 1 year and that you need a restricted license.
Another point to keep in mind is that the officer has to prove that his arrest decision was valid. In other words, that he had enough information so that a reasonably cautious person could conclude that the crime had been committed. So, what information is enough? If the citizen refused the pbt, the officer is left with supporting the arrest decision based on “sufficiently trustworthy” information from the sobriety tests and other observations. Rarely is an officer able to properly administer the standardized field sobriety tests as developed by the National Highway Traffic Safety Administration. Some hearing officers will not give much attention to arguments from citizens who claim that the officer did not have enough sufficiently trustworthy information because of a sloppy OWI investigation at the roadside. However, some will and you have the right to develop a record for the circuit court judge to review. The reason is because you may take either a hardship appeal to the circuit court or an appeal based on a mistake by the hearing officer in the law. The bar is set pretty high for the citizen on the legal attack of the hearing officer’s decision. However, there are situations where it works out.
One recent example was when the police officer who arrested a citizen failed to appear for the implied consent hearing. However, the officer who assisted in the OWI investigation did appear. The citizen had come to me for help. Now, this was a 2-car property damage accident in Lansing at 5:40 am on a Saturday. The officers were both at the end of their shift. They divided up the work so that the assisting officer prepared the police report and also took the citizen to the breath test room and deemed him to have refused. The SOS sent the notice for the hearing to her. When she arrived, she read from the police report. I objected.
The hearing officer made her testify from her personal knowledge. She testified that the citizen refused the pbt, smelled strongly of intoxicants and that he failed several sobriety tests. The citizen had not been charged criminally at this point in the case. The reason is because the citizen was taken to the hospital for a blood test based on his so-called refusal of the breath test. The results of the blood analysis were not returned from the Michigan State Police lab for several weeks because in part, the blood sat in the Lansing Police Department evidence room for over a week. This created a whole different set of issues for the trial but the trial never happened. Here’s why:
After the implied consent hearing it was my impression that the assisting officer was actually the arresting officer. The assisting officer answered direct questions from me about whether she did certain things such as check the subject’s eyes for equal track during the administration of the horizontal gaze nystagmus test (HGN). The HGN is 1 of 3 SFSTs under the NHTSA protocol in which the officer checks the subjects eyes for involuntary jerking of the eyeball. I did not order the transcript of the hearing because the citizen’s funds were very tight. Lesson learned.
The citizen was eventually charged criminally. There were several reasons to file a motion to suppress the evidence because the officer violated the citizen’s constitutional rights by arresting him without a warrant and without sufficiently trustworthy information to make a warrantless arrest for the crime of OWI. There was no PBT because the citizen refused.
Prior to the evidentiary hearing on the motion to suppress, the videos from each officer’s car were provided. After listening carefully to each one, it became clear that 18 minutes after their arrival on the scene of the accident, the officers conferred and the assisting officer indicated that she could not smell alcohol. The arresting officer then administered 2 sfsts and attempted to have the citizen conduct a 3rd, called the walk and turn. She then arrested him without even offering him a PBT because neither officer had one with them.
The assisting officer appeared for the hearing before a district judge in Lansing. The arresting officer did not so I made sure to be present in the conference room when the assistant prosecutor showed the assisting officer the video. She knew that she was trapped. Her mistake was not telling the assistant prosecutor about her prior testimony. Instead, she let him call her to the stand where she set her own trap. I advised the assistant prosecutor of the prior testimony AFTER the hearing because it was too late for him to unring the bell. I ordered the transcript from both the implied consent hearing and the hearing that we just had on the motion in the criminal case on an expedited order. That cost the citizen a lot of money.
2 days later we were scheduled before the circuit court on the hardship appeal. The timing could not have been better. After I advised the circuit court judge and the other assistant prosecutor representing the SOS, the judge advised me that she would sign an order for a temporary license on an ex parte basis while we waited for the transcripts that were necessary to have a full hearing.
There is a case called Stanek v Hare that requires that the arresting officer has to appear at the SOS hearing and submit herself to cross examination from the driver about her observations. Driving may be a privilege but it’s a vested privilege. On August 17, the prosecutor’s office dismissed the criminal case. On August 25th, the circuit court judge on the license case granted the citizen full driving privileges based on the Stanek case.
The issue of the validity of the officer’s arrest decision is not the only issue. Often, the citizen is confused about the implied consent rights and asks for an attorney. If the officer refuses to give the client even a chance to speak with an attorney, the reasonableness of the refusal can turn into a defense that will help save your license.
[1] In this context, OWI/OUIL/DUI all refer to a violation Michigan statute MCL 257.625. “OWI” = Operating While Intoxicated; “OUIL” = Operating While Under the Influence; “DUI” = Driving Under the Influence.
[2] This law is MCL 257.625c. It’s called “implied consent” and states that as a privilege of having a license, drivers agree to give their consent to a chemical test if they are suspected of OWI and on the road.