DUI Breathalyzer Refusal - Avoiding a Suspended License

February 1, 2013

If you are facing a Suspended License for having refused to take the Breathalyzer test as part of a DUI Arrest, I can get you back on the road. Beyond all the considerations involved in how and why a person receives an "Officers Report of Refusal to Submit to a Chemical Test," the bottom line is that some people wind up facing some form of a "breathalyzer refusal." This is the more serious refusal to take a breath test at the Police Station. Unlike the refusal to take a Preliminary Breath Test (PBT), which can only result in a Civil Infraction, a real Breathalyzer Refusal is written up on a person's Michigan Temporary Driving Permit as "Officer's Report of Refusal to Submit to Chemical Test."

If you have received this, you have 14 days to request a Hearing before the Secretary of State' Driver Assessment and Appeal Division (instructions are on the back side of your Temporary Driving Permit) or else your License will be Suspended for a year. If the 14 days have passed, your License will be (or may have already been) Suspended for a year. In the real world, this generally only matters in 1st Offense cases. If a person is facing a 2nd Offense within 7 years, or a 3rd within 10 years, unless they beat the whole DUI charge, their License will be Revoked, anyway, so "fighting" this really amounts to little more than a short delay of the inevitable.

Coprbeath 2.1.jpgIt goes without saying that, in cases where the 14 days haven't yet passed, I look these over rather carefully to make sure the refusal can "stick." Sometimes, it is worthwhile for me to be retained to show up and contest a refusal. Most of the time, however, it's a waste of money, and unless there is information to be gained through the cross examination of the Police Officer that may prove useful in the underlying DUI case, this can serve as a textbook example of throwing good money after bad.

If the DUI case appears solid and there is really no basis to challenge the refusal, I'll simply tell my Client to show up for the Hearing at the Secretary of State Branch Office on the off chance that the Officer does not, in which case the whole thing is dismissed and the person's License is secure. If the Officer does show, and unless I have determined that there is a real problem in the case, the outcome is pretty much predetermined.

Remember, the vast majority of refusals are upheld because, in the vast majority of cases, there is no adequate legal excuse for failing to take the test, as required by law. This is part of Michigan's implied consent law, and the requirement that a person submit to a chemical breath test is set in stone. The ONLY way to win one of these cases is to prevail on one of the 4 issues set forth on the reverse side of the Officer's Report form. Not to be funny about it, but in answer to a question I'm asked often enough, being drunk doesn't count as an excuse.

Let's skip forward - unless you win at the Secretary of State (and really, good luck with that), you're going to need to get your License back, and I can do that. I can take the matter to Court and have a Judge override your Suspension and get you back on the road. This is true whether you did nothing, and just let the state Suspend your License, or you went to a Secretary of State Hearing and lost. Either way, I can undo the Suspension of your License...

Although the Law limits the available relief in one of these Appeals to a Restricted License, this allows a person to drive to, from and during the course of work, to and from school, to and from any necessary medical treatment, to and from any support group meetings (like AA) and to and from anything required by the Court as part of the person's DUI case. This beats the daylights out of having to bum rides for a year...

In order to win back a License that has been Suspended for refusing to take a breath test at the Police Station, a formal Petition must be filed in the Circuit Court for the County where the Arrest took place. The Michigan Secretary of State must be served with the paperwork, as well as the Attorney General. At least 20 days' Notice must be provided in advance of a scheduled Hearing.

I put a bit more into this than just drafting and filing paperwork, setting up a Hearing, and then dragging my Client to Court. I want to make sure we win, so I get enough biography from my Client to make sure that happens.

I cringe when I learn that someone doesn't realize that they can appeal a License Suspension for a Breathalyzer refusal. It can be done, and I do it all the time. In fact, in over 2 decades of practicing Law, I've never lost one of these appeals. Then again, I've never done one without putting in the time and effort to do it right. As with so many things in life, success is the result of good preparation.

If you are facing or dealing with a License Suspension for refusing to take a breath test at the Police Station, that doesn't mean you have to accept losing your License. I can get you back on the road