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!
YOU MUST SUBMIT AN APPEAL WITHIN FOURTEEN DAYS OF YOUR ALLEGED REFUSAL TO AVOID LOSING YOUR LICENSE FOR ONE YEAR AND HAVING SIX POINTS ADDED TO YOUR DRIVING RECORD.
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.
SUCCEEDING AT THE LICENSE REFUSAL HEARING
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.