As a criminal defense lawyer, I am often asked the question, "Should I refuse a breath test if I have been pulled over and I have been drinking?"
Breath Testing and Drinking and Driving in Michigan
In Michigan, there are usually two chemical tests given during a stop for drinking and driving. The first test usually comes after field sobriety testing is offered and is called a Preliminary Breath Test or PBT for short.Refusing the PBT results in a $200 fine but it does not show up on your driving record.
You are under absolutely no obligation to perform any of the field sobriety tests. You are also not under any obligation to submit to the preliminary breath test either.
Michigan's Implied Consent Law
If the officer has deemed that he has probable cause to arrest you then the Implied Consent Law kicks in. In a nut shell, Implied consent says that if you are arrested for drinking and driving then you must submit to blood / breath / or urine testing. Failure to submit to the testing will result in a one year suspension of your driving privileges.If you do refuse the testing it is possible that you were right to refuse. You will have an opportunity to request a hearing before your license is suspended where you can challenge the refusal based on the following:
1. The officer did not have reason to believe you committed a DUI.
2. You were not under arrest.
3. The refusal was reasonable (medical or emergency reasons)
4. You were never given your rights
Even if the refusal is deemed in valid you can still appeal to the circuit court for a hardship appeal. At the circuit court level you will only have to establish that not having a license is hardship.
For more about the author, criminal defense lawyer, Aaron J. Boria visit his website here: borialaw.com
