Have you ever heard of implied consent? Nope, we’re not talking about consent to sex, or anything like that here. This type of consent has nothing to do with your date this past weekend (unless of course you drank too much on your date, and got pulled over on your way home!)
Implied consent in Michigan refers to the fact that if you’re driving on a road in Michigan, it means you’ve already consented to submit to a chemical test of your blood, breath, or urine to determine your blood alcohol content (BAC)
Wait, what? I have to consent to a BAC test simply because I drove?
Okay, let’s start at the beginning. If you’re driving in Michigan, and a cop pulls you over because they suspect you’re driving under the influence (DUI) of either alcohol or drugs (drugged driving), they’re going to want to test you. What does that mean? Well, there are several options available, but this is what’s going to happen at the time of your arrest:
- The officer is going to pull you over because they ALREADY SUSPECT that you’re under the influence. When you stop and talk to them, they’re looking for clues to support what they already suspect.
- If the officer suspects that you’re drunk or high, you they get any indicator that you’re under the influence (like smelling pot in your car, or alcohol on your breath) they’re going to ask you if you’ve been drinking, or have been taking any drugs.
- Obviously, you would say no! But they probably won’t take your word for it. And this is where the testing comes in….
Under Michigan law, you have to submit to a BAC test!
So right now you’re probably confused, because you’re sure someone told you that you DON’T have to submit to a BAC test in MIchigan, right? Yup, we thought so. Let’s try to clear this up, shall we?
- Michigan law says that the officer can ask you to submit to a preliminary BAC test, which is the test that the cop administers right there on the side of the road. This is done using a small, handheld piece of equipment that most Michigan police officers carry in their patrol cars. It’s called a PBT or preliminary breath test.
- It could be also be standard field sobriety testing involving following basic instructions (like walking in a straight line and touching your nose).
- Now pay attention because this part is important – YOU MAY REFUSE TO SUBMIT TO THIS ROADSIDE FIELD SOBRIETY TEST! There are no penalties for refusing to participate in these field tests.
- You can also refuse to blow into the small PBT machine that the cop carries in his police car. Refusing is simply a civil infraction with a fine. No points. No criminal charges for refusing.
- And finally, just because you refused the preliminary test on the side of the road, doesn’t mean you’re allowed to refuse the formal BAC test that the officer (or a certified clinician) will administer back at the jail, or in a hospital, after your arrest! That’s where the implied consent comes in. You are presumed to consent to the BAC test which is administered usually by using DataMaster equipment. Some other states use a Breathalyzer but Michigan uses a different machine called the DataMaster.
So in short, while you can choose to refuse the roadside test, you CANNOT refuse the later BAC, which you will be required to do either at the jail or at a local hospital.
So what should you do if you’re pulled over for drunk driving in Michigan?
Well, there’s still a lot we want to cover on this subject, but for now, the best answer we can give you in answer to this question, is that you can start by calling us! Once an experienced drunk driving defense attorney is by your side, you’re in good hands. You can safely explain everything to your attorney, and rest assured that you will be receiving the best possible legal counsel and representation available. We have handled hundreds of drunk driving cases over the decades and we can help you too.
Call us at 866 766 5245 (866 7No Jail) as soon as you’re ready to hire an attorney to begin fighting for you. We’re here to help, 24 hours a day 7 days a week. And please join us next week so we can wrap up this subject and clear up any misconceptions you may have about implied consent in Michigan.