You may be concerned about what happens when you are pulled over on suspicion of OWI. Or perhaps you had a close call during a DUI stop, and you are wondering about how a breath test works, and what happens if you refuse to take one. If you are charged with a DUI and concerned about DUI refusal, you should talk to a seasoned attorney about your circumstances right away. Delay may cost you to not get your driver’s license back for a year. At Michigan Defense Law, our team of Michigan DUI lawyers may be able to help.
When you are pulled over for a suspected DUI, or a traffic violation stop turns into a DUI stop, you may be asked to take a roadside preliminary breath test. This test can allow the police officer to confirm his suspicions. The results of the breath test are being collected as evidence that the police officer can use to establish probable cause for your arrest. You do not need to agree to take the test, but if you do not, you will be fined for a zero-point civil infraction. It is almost always smart to refuse the preliminary breath test (PBT). About the only time you should take the test is if you are certain that you are under the legal limit. Unfortunately, with body cameras and recording devices everywhere most police officers no longer have discretion to let someone go who is over the legal limit. Therefore, even though the officer tells you he just wants to be sure you are ok to drive, he really intends to arrest you if you blow above a .08.
The roadside preliminary breath test is administered with a portable device. These devices are not always accurate. The test given on the roadside is not admissible in court except in certain situations. There are also administrative rules that are supposed to be followed before administering these tests and often are ignored. For example, the police are supposed to make sure you did not have anything in your mouth for at least 15 minutes before giving you the PBT. We may be able to challenge the use of these test results as evidence to arrest you in some situations.
In Michigan, there is an implied consent law, which means that when you apply for and accept a Michigan driver’s license, you automatically give your consent to take a chemical test (breath, blood, or urine) if a police officer arrests you for suspected drunk driving. Failure to comply with the chemical test can result in penalties as imposed by the implied consent law.
Refusing to submit to a preliminary breath test (PBT) is different from refusing a chemical test under the Implied Consent law. Refusing a PBT only results in a civil infraction and a fine with no potential suspension of the driver’s license.
Typically, the resolution of an OWI charge leads to the dismissal of a PBT charge. However, if a driver declines a chemical test, like a breath or blood test, after being arrested, their license will be automatically suspended for one year. The only option to contest the refusal is by requesting and winning a hearing before a hearing officer of the Michigan Secretary of State.
If you are facing a license suspension due to a refusal to take a chemical test, it is critical to seek the help of a skilled Michigan DUI attorney. At Michigan Defense Law, our team of experienced Michigan DUI lawyers may be able to provide the necessary support, and guidance to navigate the legal system, protect your rights, and minimize the impact of the charges on your life. Call us at to schedule a consultation.
The legal limit for blood alcohol content is .08% for people 21 or older. After you are arrested, you may be taken to the station to undergo a more accurate breath test or another chemical test. These tests are either breath or blood tests. If legally arrested the officer can choose which test to give you. These tests are meant to measure blood alcohol concentration to figure out if you have ingested alcohol and are over the legal limit. A blood test may also be used to determine if you have drugs in your body and might be impaired by the use of a controlled substance.
Michigan has an implied consent law. When you get your license from the state, you agree that you have given your consent to a breath test if lawfully arrested for an OWI. The results of the test at the station may be used to establish the charges against you. If you refuse this test, you will get six points on your driving record, and your driver’s license will be suspended for at least one year up to a maximum of two years for second violations. After your license is suspended, you will not be able to drive; if you do and get caught, you can face further criminal charges. Additionally, you may not be able to get a restricted license, even to drive to work. That decision would be up to a circuit court judge and the only relief they can give is a restricted license based upon hardship unless a constitutional violation occurred in imposing the implied consent suspension. The entire process is separate from your drunk driving case and occurs in a different location before an administrative hearing officer at the Secretary of State. From there, if you lose, you may appeal to a circuit court. As a result, you may end up fighting multiple legal battles in three different courts as a result of the OWI and implied consent violation. This can be overwhelming for some people who have never been in trouble and are unfamiliar with the court system.
Furthermore, when you refuse to take the breath test, the police almost always get a search warrant from the court to draw your blood forcefully. To get a warrant, the police will need to have probable cause. In many cases, the police can establish probable cause by citing their observations of your behavior and signs of intoxication, such as erratic driving, bloodshot eyes, and the smell of alcohol on your breath, your performance on field sobriety tests and the PBT results If obtained, the warrant will require you to submit to a blood test. The results of your blood test may be used to establish the prosecution’s case beyond a reasonable doubt, and you are still stuck with the implied consent violation.
It is important to retain an attorney to look at what happened and determine what the strongest grounds for a defense would be after a DUI breath test refusal. If you are issued an implied consent violation you must demand a hearing within 14 days, or your license will automatically be suspended for one year and you will receive 6 points on your driving record. The paperwork they provide you after your arrest is not super clear. That is no excuse. If you were arrested for OWI and refused the initial request for a breath or blood test you should contact us immediately. Failure to act makes your situation worse and harder to deal with. On occasion, we have been able to negotiate global plea bargains that resolve the OWI case and the Implied consent violation together. This possibility is lost if you don’t act within the 14 days provided under the law. Many people cannot afford to have their license suspended because they need to go to work or school while using their own vehicle. Moreover, a DUI gives you a criminal record, with all the stigma that this carries. However, we may be able to raise constitutional and procedural defenses on your behalf. For instance, an officer needs to have probable cause for an arrest. If he did not, we may be able to get any evidence after the arrest related to DUI refusal suppressed.
If you are concerned about a DUI refusal, we are happy to answer your questions and you should discuss your situation with our seasoned attorneys. Michigan Defense Law represents clients in Oakland, Wayne, Macomb, and Washtenaw Counties. Contact us at or complete our online form.