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What is an Implied Consent Hearing?

August 30, 2013 Criminal Law and Procedure

Michigan’s Implied Consent Act requires that motorists who are arrested for drunk driving submit to a chemical test. Motorists in essence give “implied consent” to submit to a chemical test when afforded the privilege to drive in Michigan.

A chemical test usually involves a person breathing into a machine called a DataMaster, which measures blood alcohol content.

Refusal to submit to a chemical test will result in the confiscation and destruction of your driver’s license by the arresting officer.

The implied consent hearing must be scheduled within 14 days. Failure to schedule within 14 days makes the penalties for refusal permanent.

Related: U.S. Supreme Court Requires Warrants For Blood Draws From Drunk Driving Suspects

Refusing to take a chemical test has serious consequences. A first time refusal results in a one year license suspension, and a second refusal within a seven year period will result in a two year license suspension. In addition, six points will be entered onto the driver’s master record.

A first-time offender can, however, petition the circuit court for a restricted license under certain circumstances.

To challenge a license suspension, an implied consent hearing is necessary.

The burden of proof at the hearing is on the police officer who arrested the driver. There are only four issues at the hearing;

1.  Did the police officer have reasonable grounds to believe the person committed a crime listed in MCL 257.625c(1) (Crimes involving drunk and drugged driving or a traffic offense resulting in death or injury).

2.  Was the person arrested for one of the crimes listed in the above statute.

3.  Did the person reasonably refuse to submit to a chemical test requested by the officer.

4.  Was the person advised of his or her chemical test rights.

Matters outside of these four issues are deemed irrelevant and will have no bearing on the ultimate outcome of the hearing.

Implied Consent Hearings are civil proceedings, not criminal. The burden of proof is a preponderance of the evidence, as opposed to proof beyond a reasonable doubt as in a criminal matter, a much higher standard.

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The most dynamic issue at the hearing is whether the person reasonably refused to submit to the test. This issue has more room for argument than the other issues, and is the grounds on which an implied consent hearing is most likely to be won for the driver.

Though these hearings are difficult to win, there are several strategic benefits to holding them.

First, a driver who made a first-time refusal will be able to petition the circuit court for a restricted license.

Second, the hearing provides an opportunity to gain insight into the case that will be made against the future defendant in the drunk driving case. When the police officer tells the story of the traffic stop he or she will often give a more detailed account of the events than will be revealed in the police report that is given to the defense in discovery during the criminal case.

Related: What Is A Killebrew Agreement?

And third, by cross-examining the police officer, defense counsel will be able to assess the officer’s credibility and see what kind of a witness the officer will make at a possible trial.  For these reasons, an implied consent hearing may be a valuable tool for defense counsel to utilize prior to going into the criminal case.

Contact ArborYpsi Law at 734-883-9584 or at to speak with attorney Sam Bernstein.

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