Last updated on November 2, 2021

What Are the Consequences for Refusing a Breath or Blood Test?

Interviewer: You talked about driver’s license consequences from breath test refusals?  Do you see many cases where people will refuse either a breath or a blood test?  If so, what happens when someone does that?

Attorney Tafelski: Well, that’s a good question.  I’d say it’s common but not frequent.  What happens is sometimes these people are confused and they don’t know what to do.  Other times, the police officers may be very short with them and not give them an opportunity to change their minds once they have said they don’t want to take a breath test.

Michigan Enforces the Implied Consent Law

Under Michigan law, it’s called the implied consent law.  Under that law, by accepting a driver’s license, you’re agreeing that you will take a breath test if you’re ever arrested for drunk driving and that you will cooperate in doing that.  If you refuse to do that, then your license will be suspended for one year.

If You Violate the Implied Consent, You Have 14 Days in Which to Request a Hearing

If a person refuses that, they write them up for an implied consent violation and then they have to within 14 days file an appeal with the Secretary of State.  That appeal will then be sent for a hearing and they’ll keep their license in the meantime.

You Can Contest the Violation of the Implied Consent during the Hearing

Then we’ll have a hearing in front of an administrative law judge where you have to either demonstrate that the police officer did not read you your implied consent rights, that your refusal to take the test was reasonable, or that there was a constitutional violation of your rights, or that they did not have reasonable grounds to arrest you in the first place.

This Is a Separate Action from the Criminal Case

If you are unsuccessful with that, then your license is suspended for a year.  The only thing you can do is file a hardship appeal through the circuit court where the judge there can grant you a restricted driver’s license for that one year.  Basically, as soon as that happens, you have to take action, and it’s an entirely separate case.  Even if your drunken driving case gets dismissed, your implied consent case still continues.  It’s a whole separate case once that happens.

You May Only Have One Opportunity to Take a Breath Test

Interviewer: You mentioned that one of the reasons that people are marked as refusing is when if they say, “I don’t want to do this test,” but then they change their minds, they’ll still be considered refusing?

Attorney Tafelski: If the person is asked to take the test and they say no, then the officer will consider that a refusal.  Then that officer has to go and get a search warrant for your blood.  However, there’s a case file that says if within a reasonable period of time the person changed their mind and communicated that to the officer that would be a defense to the implied consent violation.  Now, exactly how much time is “reasonable”?  That’s a case by case basis and a situational basis.

A Medical Condition May Be Considered a Reasonable Breath Test Refusal

If they’re physically unable, let’s say they have a lung problem or an illness; in that case the officer should have taken you for a blood draw instead of a breath test.  If he insisted on a breath test, that would be a defense that you could raise in the implied consent hearing specifically that you were unable to do the test.

You weren’t refusing to cooperate, in other words that that was a “reasonable” refusal.  Now, you need to be able to prove that.  You will need to be able to prove that you really physically can’t do it, but it’s possible.

Interviewer: What kind of conditions causes people physically to have problems during the breath test?  Do they have acid reflux or they’re hyperventilated or they have small lung capacity?

There Are Medical Issues That Prevent Individuals from Undergoing a Breath Test

Attorney Tafelski: You might have certain types of medical conditions that affect your breathing, your lungs and your ability to take a deep breath and have a sustained long blow into the tube.  You might be sick at the time.  If the person is having active reflux or throwing up or even hiccups that don’t stop, the officer should not administer the breath test.

They’re not issues that the normal person is going to be aware of or going to know to raise to the attention of the police, but that is something that a trained lawyer would be looking for in these cases.

The Michigan Police Prefer to Administer Breath Tests

Interviewer: What’s preferred in Michigan?  Do the police administer mostly breath tests or do they prefer blood tests?

Attorney Tafelski: They almost always will do breath test. When they don’t, it’s usually because they suspect that there may be drugs involved as well and so they want to get a blood test to test for both drugs and alcohol, or because they’re having some kind of problem with their machine at the station.  Generally, 90% of the cases, they want to do a breath test.

Posted in: DWI
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