Michigan Drinking and Driving

Testing for Bodily Alcohol Content (BAC), OWI, Super Drunk, Presence of Drugs
Michigan Implied Consent Law, Refusals of Chemical Tests

When a person is suspected of operating a motor vehicle under the influence or drugs, the police obtain a breath, blood or urine sample to determine the presence and extent (levels) of alcohol or drugs present in the person’s body. Criminal charges for operating while intoxicate or under the influence are pursued based upon the test results.

Under Michigan's Implied Consent Law, all drivers are considered to have given their consent to this test. The consequences for failing to provide a sufficient sample, resisting the testing process or intentionally attempting to delay the process are explained below.

If the test is properly administered, the results are admissible in evidence. In addition to utilizing the test result, the police officer and other witnesses may testify as to a person’s behavior and conduct relating to intoxication or impairment.

Just because the police have test results in their favor does not mean that a case is lost. ABDO LAW will advise you on the best course of action and we have had most cases reduced to lower offenses even in scenarios where the test scores are reliable and well over the legal limit. This includes reductions of offenses where drugs are present or when the Blood Alcohol Content (BAC) supports a “SUPER DRUNK”charge (BAC result of .17% or greater).

Measuring Alcohol: Bodily Alcohol Content (BAC)

BAC refers to the ratio of alcohol to blood in the bloodstream.

Zero Tolerance: A minor with a BAC of .02% may be charged with a zero tolerance drinking and driving violation.

Impaired Driving (OWVI): The offense of impaired driving (OWVI) may be pursued whenever the police believe that a person’s ability to was so weakened or reduced by consumption of intoxicating liquor and drove with less ability than would an ordinary, careful and prudent driver. Such weakening or reduction of ability to drive must be visible to an ordinary, observant person. The degree of a person’s intoxication may be established by the testimony of someone who saw the impaired driving. The test result is also admissible even if the result is below the limit of .08%.

Operating While Intoxicated (OWI): A BAC of .08% is considered legally drunk which will support a drunk driving charge (often abbreviated as DUI or OWI).

Super Drunk: A BAC of .17% or greater will support a charge known as “High BAC OWI” or “Super Drunk”.

Alcohol Absorption, Distribution and Elimination

One of the initial steps in any drinking and driving case handled by ABDO LAW is to determine whether the chemical test is accurate and was administered according to Michigan law. Several factors determine a person’s Blood Alcohol Content (BAC) including the number of drinks consumed, lapse of time, metabolism and body weight.

Alcohol absorption is the passage of alcohol into the blood. Generally, the more a person weighs, the larger the volume of body mass and the lower the BAC obtained from the consumption of a given amount of alcohol. Elimination is the removal of alcohol from the body. Elimination occurs at a constant rate for a given individual. Most people eliminate alcohol at the rate of 13 and 18 mg% per hour.

To view a BAC chart, please click here.

Driving Under the Influence of Drugs, Prescribed Drugs, Marijuana

Intoxication, impairment or under the influence may occur due to the consumption of alcohol, marijuana (including medical marijuana) illegal drugs, prescribed medications or a combination of alcohol and drugs. When drugs or marijuana are suspected, the police will seek a breath, blood or urine sample(s) of the driver for testing. Should an individual refuse to take a test, the police are able to obtain a search warrant for a blood test. All testing, including blood testing is subject to ridged standards of care which are the subject of attack at trial. When a person is tested for prescribed medications, the defense may call witnesses to testify as to the person’s sobriety or normal behavior before operating a vehicle. When marijuana is the drug that is found, the defense may assert that the THC levels are below standards to be considered “under the influence”. The State of Colorado has adopted a legal threshold for DUI/marijuana cases. In Colorado, the legal limit has been set at 5 nanograms of THC of the driving suspect. Michigan has no such law but the matter has been addressed by the appellate courts and is expected to pass legislation similar to Colorado.

Right to a Second Test of Your Own Choice

A person has a right to request a second test of his or her choice, and at his or her own out-of-pocket cost, provided that the person takes the test first offered by the police.

Warrant for Blood Test, Sample Available to Defense for Independent Lab Testing

In Michigan, upon refusal, the police may obtain a warrant for a blood sample to test for alcohol, marijuana, illegal drugs or prescribed drugs. Blood samples for blood alcohol content (BAC) are typically based upon blood serum. Alcohol levels based upon blood serum testing tend to be higher than samples of whole blood. This can be misleading. When the police obtain a blood sample, they are required to obtain 2 vials. The second vial is available for independent testing should our defense team have any doubts as the test result or testing procedure utilized by law enforcement officers.

Implied Consent Law: Requirement to Provide a Breath, Blood or Urine Sample

Pursuant to Michigan’s Implied Consent Law, a person that is suspected of an offense for operating while intoxicated, impaired or under the influence of drugs will be required to take a chemical test to determine the presence of alcohol or drugs. In most Macomb County cases, alcohol is measured by the use of breath testing equipment (such as the DataMaster) which measures alcohol vapors expelled when air is exhaled from the lungs. This testing equipment provides a printed report which provides information including the time of testing, the results, the intervals between tests and whether the sample was invalid. Blood tests, as well as urine tests, are utilized in most cases to test for illegal drugs, prescribed drugs and marijuana. Under Michigan's Implied Consent Law, all drivers are considered to have given their consent to provide a breath, blood or urine sample or face Secretary of State sanctions upon refusal.

Refusals of Chemical Test, Administrative Hearing, License Sanctions

A refusal of a chemical test will be reported to the Driver License Appeal Division (DLAD) by the reporting law enforcement officer associated with the underlying drunk driving case. A party that contests the refusal is required to request an administrative hearing within 14 days. ABDO LAW always recommends that the request for hearing be filed in every refusal situation.

Request for Hearing Form and hearing issues: At the implied consent hearing, the law enforcement/police officer will be required to establish compliance with the Secretary of State rules for administering a chemical test and that the person unreasonably refused the test. A person who loses the hearing, fails to request a hearing or fails to appear for the hearing faces mandatory sanctions of six (6) points and one (1) year license suspension. A second implied consent suspension within seven (7) years will require six (6) points and two (2) years license suspension with limited right to appeal the suspension.

Technical Refusal of Breath Test

The police officer may charge a party with a refusal under circumstances when a party is not fully cooperating to give a sample. This frequently occurs when a person is asked to provide a breath sample. The breath test (Data-Master) operates to measure the alcohol vapor which is expelled from the blood through the lungs when a person exhales. A technical refusal occurs when a person fails to provide an adequate sample. This is done when the person tries to defeat the test by giving a “side air blow” or blows softy into the ampoule or straw. Arguments can be made at the implied consent hearing when a person has a breathing disorder or suffered injuries which made testing difficult.

Appeals to the Circuit Court after Losing Implied Consent Hearing

As I explained, the issue regarding a chemical test refusal is first heard by a Secretary of State administrative hearing officer. When a party loses an administrative hearing pertaining to the implied consent law, he or she may appeal the matter to the circuit court in the county where the offense occurred. For example, if the underlying offense occurs in any Macomb County city or township, the license appeal is filed in the Macomb County Circuit Court.

License appeals can be based upon the grounds of hardship (necessity) or on the merits (a flaw in the hearing officer’s decision). Necessity means that the person needs a license for employment or education and does not have a mass transit system or person within the household to provide transportation. The court may grant a restricted license (for employment, education) to an applicant who prevails in an appeal based upon hardship/necessity. An appeal by a party who is on a second implied consent suspension is only entitled to an appeal on the merits, not an appeal based upon hardship. Contact ABDO LAW if you find yourself in this position.

ABDO LAW provides legal representation for clients charged with any drinking and driving offense in all courts located in Macomb, Oakland and Wayne Counties and at hearings when there is a refusal of a chemical test (Implied Consent Hearing). We are also prepared to file an appeal to the circuit court should a client face license sanctions based upon a refusal.

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