When Is Withdrawal of Implied Consent Reasonable?

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When Is Withdrawal of Implied Consent Reasonable?

Is there ever an instance where the withdrawal of implied consent is reasonable?

It is well settled that Michigan law requires any person arrested for suspected drunk driving submit to a breath or blood test at the request of the arresting officer to determine the driver’s bodily alcohol concentration or BAC. The same is true in the case of suspected intoxicated driving where a blood test is sought to determine the presence of any controlled or intoxicating substance.

However, there is something that is not well known by the general public and many lawyers.  After submitting to the requested blood test, the suspect has the right to withdraw his or her consent to any testing of the blood sample.  Withdrawing consent does not violate the Michigan Implied Consent Law. A recent case involving a Duke Law Group client illustrates the point.

The client was arrested for suspected drugged driving and submitted to a blood draw at the request of the arresting Michigan State Police Trooper. Two days after his arrest he engaged Michigan DUI Defense attorney Edward Earl Duke to represent him in the underlying criminal charge.

Upon his engagement and learning the facts of the case Mr. Duke sent the arresting trooper and the Michigan State Police Forensic Testing Laboratory a Notice of Withdrawal of Consent to any testing of the subject blood sample. The Trooper then obtained a search warrant for the testing of the blood sample, after which he completed a DI-93 Officer’s Notice of Refusal form approximately 18 days after the traffic stop and arrest.

The Michigan Secretary of State scheduled an AHS hearing upon receipt of the client’s appeal of the refusal. At the hearing the Trooper argued that he requested that a chemical test be performed, not that a chemical blood draw be performed. Consequently, the Trooper argued that the subsequent withdrawal of the consent to test the blood sample constituted a refusal under the implied consent statute.

In response, Mr. Duke argued that the implied consent statute is intended to preserve a breath, blood or urine sample at the time of the arrest and that the purpose was satisfied when the client submitted to the blood draw.

Mr. Duke further argued that submitting to the blood draw does not mean that any suspect cannot challenge the deficiencies in the Michigan State Police Laboratory’s certifications by withdrawing his consent to any testing of the sample without a warrant.

Indeed, he argued that finding that a refusal occurred in this situation would be akin to finding a refusal any time an individual attacks the validity of a chemical test sample after the sample has been obtained.

In addressing Mr. Duke’s arguments the Hearing Officer noted that:

Section 625(f)(1) indicates that licensing sanctions are to be imposed ‘[i]f a person who refuses to submit to a chemical test pursuant to section 625d does not request a hearing within 14 days after the date of the notice pursuant to section 625e….’ Section 625d indicates that the relevant analysis is whether ‘a person refuse[d] the request of a peace officer to submit to a chemical test offered under section 625a(6)…’ Section 625a(6)(v) indicates that ‘refusing a peace officer’s request to take a test described in subparagraph (I) will result in the suspension of his or her operator’s or chauffeur’s license...’”

The hearing officer then proceeded to note that the relevant issues during an implied consent hearing are those that occur at the time of the arrest. He noted that the quoted sections of the statute indicate that the relevant analysis is whether an individual refused a request to take a chemical test.

He agreed with Mr. Duke that his client did submit to the Trooper’s request to take a chemical test. No search warrant was obtained on the evening of the arrest and no DI-93 refusal form was completed for more than two weeks after the arrest.

Consequently, the Hearing Officer granted Mr. Duke’s client’s appeal and ordered that his operator’s license shall not be suspended based on an alleged refusal to submit to a chemical test.

The moral of the story is that anyone arrested for suspected drunk or drugged driving should immediately engage the services of a top rated Michigan DUI defense attorney to preserve their rights and to guide them through the complexities of the administrative and criminal procedures.

Implied Consent and the Fourth AmendmentDRUG CONVICTIONS LIMIT FEDERAL STUDENT AID