Refusing the Breath Test in Michigan

If a motorist is stopped by the police and ultimately arrested for OWI in Michigan, the police will usually request that the person under arrest submit to a chemical breath, blood, or urine test.

With regard to breath tests, there are essentially two different types.  The first type is the Portable Breath Test (PBT) which is offered on the road side during the investigation.  The PBT is administered prior to the arrest and if a person refuses the to take the PBT, then he or she may be charged with a separate “civil infraction” which could result in a fine.

The second type of breath test is the BAC Datamaster test.  This testing device is usually located at the police station and is offered after the person is under arrest and has been taken into custody.  If the person refuses to take this breath test, then there may be certain driver’s license sanctions imposed by Secretary of State.

As previously stated, after the motorist is actually under arrest, the police have the option of requesting a breath, blood, or urine test.  The BAC Datamaster breath test is usually the test offered by police after an arrest because it is the easiest test to administer.  A person does have the right to refuse this breath test (also may refuse a blood or urine test if that is the test initially offered) but if the person refuses to take the requested test, then the police may obtain a search warrant and take the individual to the hospital for a blood draw to measure the person BAC (Bodily Alcohol Content).

Although the person has the right to refuse the requested test, there are still certain driver’s license sanctions which may be imposed by the Secretary of State for the refusal.  The actual legal term used by the state and courts to describe this type of refusal is an “Implied Consent” violation.  For a first “refusal” or “Implied Consent” violation, the Secretary of State will suspend that motorist’s driver’s license for a period of one year.  There are however, certain procedures available to appeal the suspension as well as procedures to obtain restricted driving privileges if it is a “first” implied consent violation.  These restricted driving privileges would include to/from/within scope of employment, to and from court ordered obligations, as well as a few other limited purposes.  The restricted driving privileges are not guaranteed and would depend on the discretion of the Circuit Court Judge assigned to the case.