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Refusing to Submit to the Breath Test

The Law Office of Joseph F. Awad, P.C. specializes in defending you in Michigan DUI charges. Aggressive and Experienced, Attorney Awad will fight for your rights.

What to do if you refused a breathalyzer test in Michigan

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If you are arrested for drunk driving, you will be taken to the police station for booking.

Once you are there, the police officer will ask you to submit to a breath, blood, or urine test to determine your blood alcohol level. In most cases, you are asked to take a breath test. If you refuse to submit to the test they ask you to take, then a REPORT OF REFUSAL form will be sent to the Secretary of State, telling them that you refused to take the test. You will have only fourteen days from the day of your alleged refusal to contest the allegation. If you fail to contest your alleged refusal, the Secretary of State will add 6 points to your driving record and suspend your driver license for a one-year period!

This action can be taken against you even before you go to court to address your drunk driving charge. Since the State (and not the court, itself) would take this drastic action against you, what takes place in court could play little or no role in what happens to your license when you refuse the officer’s request to take a breath test. As a matter of fact, it is even possible to be found NOT GUILTY in court and still have your license suspended for one year by the State for allegedly refusing the breath test!

Because of the extreme consequences for refusing to take a chemical test, you must fight this every step of the way.


If the appeal is received by the Secretary of State in a timely fashion, no action will be taken against you. Instead, a hearing date will be sent you, where you and your lawyer can defend against the officer’s allegation that you refused to take the breath test he or she offered you. The name of this hearing is called an IMPLIED CONSENT HEARING. At the hearing, only four issues matter:

  1. Did the police officer have reasonable grounds to believe you committed the crime of drunk driving or another related offense? (See MCLA 257.625( c ) (1) for the other offenses that are included in this issue)
  2. Were you placed under arrest for drunk driving (or another drunk-driving related offense listed in MCLA 257.625( c) (1))?
  3. Did you reasonably refuse to submit to the chemical test offered to you by the officer?
  4. Were you advised of your chemical test rights?

If the OFFICER fails to prove any one or more of the four issues listed above, you will win the hearing and no action will be taken against your license. Keep in mind that the officer carries the burden of showing all four of these issues. It is not your job to prove these four issues have not been met. You are not required to disprove anything! You must only attempt to show that the officer has failed to meet one or more of the four issues he is required to show at the hearing. On the other hand, if the officer does prove, by a preponderance of the evidence, (namely, 51%) that all four of these issues has been satisfied, you will lose your license and have six points placed on your record. You must challenge every one of these issues, through your lawyer’s questioning, in order to avoid losing your license for one year.


You and your lawyer should be familiar with the possible legal issues that can be used to defend you at the hearing. Some of the tips and tactics below should be considered when preparing to fight your alleged refusal. What follows is only a partial list of possible tips and tactics that can be used in your defense. To get a more thorough analysis of your case and possible defenses for your “refusal” hearing, make sure to contact an experienced attorney.


Your lawyer should consider the following possible techniques at the refusal hearing. Your attorney should always refer to the only four issues relevant at the hearing in preparing your defense.

  1. Did the police have reasonable grounds to believe you committed the offense of drunk driving?
    DEFENSE TIP: Determine whether the officer who pulled you over was the same officer who arrested you. If the police are working in teams, sometimes the police officer who initially stops you turns his case over to another officer, who in turn makes the arrest and offers the breath test. If the officer who reported your alleged refusal is not present at the hearing, you can argue that the officer who arrested you had no “reasonable grounds” to believe you committed the offense of drunk driving, since he or she did not observe your driving patterns.
    DEFENSE TIP: Your lawyer should pick apart your performance on the field sobriety tests. If you did a good job on your field tests, your lawyer can challenge the officer’s decision to think you committed the offense of operating while intoxicated.
    DEFENSE TIP: Did the officer determine that, for a period of time before offering you a preliminary breath test, you did not belch, regurgitate, smoke, or place anything in your mouth before taking the breath test? If not, your lawyer can challenge the reliability of the breath test you took on the side of the roadway before being arrested for drunk driving. If the breath test result cannot be relied upon, perhaps there was no basis for the officer to arrest you in the first place.

  2. Were you placed under arrest for the crime of drunk driving (or other alcohol-related driving offense?)
    DEFENSE TIP: Oftentimes, a person who is later suspected of drunk driving will be initially arrested for a totally different offense. If you were arrested for something other than a drunk-driving related offense, your lawyer can argue that your arrest does not satisfy the criteria required by the law. If your arrest was not for an alcohol-related driving offense, you should win your appeal. For example, if you were arrested for Possession of Marijuana and then taken to the station and asked to submit to a breath test for the presence of alcohol, you may argue that your initial arrest does not satisfy the legal requirement that your arrest be for a drunk-driving related offense. If your lawyer can show this, you should win your appeal.
    DEFENSE TIP: It is not enough that you be arrested, per se. Your lawyer should also determine whether or not your arrest was valid. The courts have determined that if your arrest was not valid, then the arrest does not comply with the law required by the Implied Consent Statute (a.k.a., the chemical test refusal law). Therefore, your attorney should carefully examine the procedure used to arrest you. For example, if you were arrested in an area where the arresting officer has no jurisdiction, you can argue your arrest was invalid. If your arrest was invalid, you should win your appeal, since an invalid arrest is as though “no arrest” even occurred.
    TIP: If you were arrested for a totally separate crime and only charged with a drunk-driving offense later on, then your initial arrest does not satisfy the legal requirement required by the officer to succeed at the breath test refusal hearing. Remember, for an alleged chemical test refusal to stick, the officer is required to actually arrest you for an alcohol-related driving offense. So, if you were actually charged with drunk driving much later than your arrest, the actual arrest is not valid, and your appeal should be granted by the hearing officer.

  3. Did you reasonably refuse to submit to a chemical test requested by the officer?
    DEFENSE STRATEGY: As the accused in this case, this issue usually provides your attorney the most leverage to win your case. If you can provide a legitimate reason why you refused to take the chemical test, no action will be taken against your driver license. Remember, it is not enough that the officer show only some, but not all four issues. The officer must prove that all four issues have been met in order for him or her to succeed against you at the hearing. Your attorney must investigate your case thoroughly to ensure this issue is not overlooked.
    If you were not given the opportunity to discuss with an attorney your decision whether to submit to a chemical test or to refuse the test, the hearing officer should rule in your favor. It is not enough to hint to the officer that an attorney should be consulted before you decide. You must spell out your request very clearly in order for the hearing officer to find that you did indeed request the chance to discuss your decision with a lawyer. Be very careful here! The law does not require that you actually contact an attorney; you must only be given a reasonable opportunity to discuss you decision with a lawyer.
    This means that if you request a chance to call a lawyer, giving you a phone book and a working phone may be all the police need to do to show they gave you a chance to talk to a lawyer. If, in the middle of the night, you cannot reach an attorney, you are out of luck. You cannot refuse to submit to the chemical test simply because you attempted to reach a lawyer but couldn’t do so. Giving you the chance to talk to a lawyer is the only thing required by the police. Remember, the police are only obligated to give you this chance if and only if you very clearly request the opportunity to speak to a lawyer regarding your decision whether or not to take the breath test.
    WHAT TO LOOK FOR: If you did in fact request an attorney, failure to provide you the chance to discuss your decision with a lawyer should mean that your refusal to take the officer’s test was reasonable. After all, if you wish to seek the advice of a lawyer but are deprived of the chance to make that critical phone call, your reluctance to take this unfamiliar test is understandable and should not be held against you by the Secretary of State hearing officer.
    STRATEGY TIP: If the police give you a chance to call some attorneys, make sure that they allow you enough time to make a reasonable effort to actually reach a lawyer. A false opportunity to call a lawyer should not be considered reasonable. For example, if the phone you were given to use is not working, or if you were not given enough time to try to place the call to a lawyer, then your refusal to submit to a breath test may still be considered reasonable; a phone book and phone may not be an automatic pass for the officer. Make sure your attorney is especially cautious in cases where the police prematurely consider you to have refused the breath test before attempting to contact a lawyer first. For instance, if you request the chance to talk to a lawyer, the officer may do his job, in part, by giving you a phone book and access to a phone.
    But, if the very same officer who hands you the phone immediately starts preparing a search warrant to draw your blood, your lawyer should be able to prove that the officer never really gave you the chance to speak to a lawyer at all, and instead, presumed your “refusal” to submit to the test by preparing a warrant to force you to draw blood. In these grey area cases, an experienced attorney should be able to show that your alleged refusal to take the chemical test was reasonable, thereby saving you from losing your ability to legally drive a car.

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If you have been charged with drunk driving, you need an attorney with the right breathalyzer knowledge! Don't feel bad for what happened, discover what you can do about it.

Read Additional Breathalyzer Test Information

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Attacking Breath Test Results
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