Michigan OWI criminal defense lawyers Manley & Manley explain your rights
There are many different types of DUI tests – from breath tests to blood tests, field sobriety tests and more. While you are not required to comply with an officer’s request to take field sobriety tests and face only civil penalties if you refuse a roadside preliminary breath test, you are required to take a blood, breath or urine test at the police station if you are arrested for OWI.
The Michigan DUI defense attorneys at Manley & Manley have years of experience working with people facing DUI charges. We are well-versed in the Michigan laws involving different tests frequently used by police if they believe someone has been drinking and driving.
What types of DUI tests are given in Michigan?
Police officers in Michigan use several different DUI tests in an effort to determine if someone is driving under the influence of alcohol. There are eight main stages of testing administered by the police in a drunk driving arrest:
- Field Sobriety Tests
- Preliminary Breath Test (PBT)
- Implied Consent Testing (Chemical Breath Test, Blood Test or Urine Test)
- Blood Test After Implied Consent Refusal
- Blood Draw
- Breath Tests and Breathalyzers
- Blood Tests
- Urine Tests
If you were given any of these tests and have been charged with operating while intoxicated (OWI) in Michigan, contact one of our Michigan DUI defense lawyers as soon as possible. We have the knowledge and the expertise to handle your case and give it the attention it rightfully deserves. Schedule an appointment right now and discover what we can do for you.
Are DUI tests mandatory in Michigan?
This is one of the most frequently asked questions about DUI charges we often hear at our law firm. Here are the rules for each test:
- Field sobriety tests – Contrary to what many people believe, field sobriety tests are not mandatory. You are not required to take these voluntary tests, and you may want to politely refuse to take them if an officer asks you to step out of the vehicle.
- Preliminary breath test (PBT) – You have the right to refuse to take this test to determine your BAC at the scene. It is a civil infraction to refuse to take a PBT at the scene and you could be fined up to $150 plus court costs.
- Implied Consent Test – Once you’re at the police station, Michigan’s implied consent law kicks in. Much more serious consequences follow if you refuse to take a breath, blood or urine test at the station. This could result in a one (1) year mandatory license suspension.
- Blood Draw – If you refuse to take the Implied Consent test, the officer can get a warrant that requires you to provide a blood sample.
Are DUI tests in Michigan accurate?
Each of these tests has flaws that can produce incorrect results in certain circumstances. (Problems with each one of the tests are explained below.) In general, the most common reasons why such tests are inaccurate include:
- Operator error – Police officers sometimes make mistakes when administering a DUI test to a driver.
- Defective equipment – DUI test results will be incorrect if the equipment is broken or the settings are wrong on a breathalyzer or other DUI test equipment.
- Improper storage – Test samples often need to be stored at the correct temperature and other precise details. Otherwise, the test samples could become altered and no longer accurate.
Whatever the reason, it’s wise to discuss your circumstances with an experienced attorney in Michigan. Don’t wait to contact our firm. You only have a narrow window of time to challenge your DUI test results or take legal action if you refused a DUI breath test.
If you refused a breath, blood or urine test, for example, you have 14 days after your DUI arrest to request a hearing to appeal your automatic driver’s license suspension. Otherwise, your driver’s license will automatically be suspended for one year or more.
Why should I hire a lawyer if I took a DUI test in Michigan?
When you have an experienced attorney on your side, you can take an aggressive stance right from the start. Knowledgeable attorneys routinely conduct a detailed investigation, including carefully reviewing your DUI test results and consulting with experts in their field.
Attorneys Michael P. Manley and Frank J. Manley know Michigan’s DUI laws inside and out and have the case results to prove it. We are Flint natives who have been fighting for people facing DUI charges in Michigan for nearly three decades. If you have been arrested or are facing DUI charges in Michigan, contact us immediately for a free consultation.
Police officers in Michigan often want to administer one or more of these three common field sobriety tests to determine if a driver is drunk. Remember, field sobriety tests are strictly voluntary. You may refuse to take any of these field sobriety tests. There is no penalty for refusing to take one. The three common field sobriety tests are:
- Horizontal Gaze Nystagmus (HGN) – This test requires you to follow a light with your eyes without moving your head. Police officers who administer this test are looking for involuntary eye movements known as horizontal gaze nystagmus, in which a person’s eyes bounce or move erratically from side to side or up and down.
- One Leg Stand (OLS) – This test involves standing on one leg and raising the other foot 6 inches in the air and holding the raised foot in place for approximately 30 seconds. Many sober people are unable to perform this test because of poor balance, physical condition and other reasons.
- Walk and Turn (WAT) – This test requires people to walk heel to toe in a straight line. At a certain point, the person must then turn and walk back the same way. Like the one leg stand test, many sober people fail this test due to poor balance, fatigue and health-related reasons.
The preliminary breath test (PBT) is administered at the roadside to confirm the officer’s suspicion that you may have been driving under the influence. Taking a PBT test consists of blowing into a handheld device for a period of time. This is different from the chemical breathalyzer test (Datamaster) that is administered at the police station.
Refusing to take the PBT is a civil infraction that carries a fine of $150 plus court costs. If you are under 21 or have a commercial driver’s license (CDL), refusal carries more severe consequences.
PBT tests are generally used to establish suspicion, not to support a conviction. The PBT results can only be admitted in court under very limited circumstances. Moreover, these tests are notoriously unreliable due to equipment defects and operator error.
Michigan’s Implied Consent Statute means that by operating a vehicle in Michigan, you consent to certain types of DUI testing at the police station, including:
- Chemical breath test (breathalyzer)
- Blood test
- Urine test
Although you have agreed to participate in this testing, there are certain steps the officer must follow when making and administering the tests. For example, you must be informed of your legal rights under the Implied Consent Statute, including the penalties you will incur if you refuse to take a test. An experienced Michigan DUI attorney will analyze those steps and determine whether the testing was done legally.
What happens if I refuse to take a DUI test in Michigan?
If you refuse to participate in testing at the police station, the officer will report your refusal to the Secretary of State. This triggers a one-year “Implied Consent” suspension of your driving privileges. The one-year suspension goes into effect automatically unless you request a hearing with the Secretary of State to contest the suspension. A “Request for Hearing” should be attached to the Temporary Driving Permit issued by the arresting officer. You have to submit the request to the Secretary of State within 14 days.
This is a specialized hearing with limited testimony. It is very important that you have a Michigan DUI defense attorney who is familiar with the Implied Consent Statute appear with you to protect your rights.
In addition to the automatic one-year suspension, the officer can request a warrant for a blood draw. You will also receive 6 points on your driving record for refusing the implied consent test.
Under Michigan law, if you have been arrested and charged with driving under the influence of alcohol, you have legally consented to take a breath or blood test to determine if you are intoxicated. If you refuse to have a DUI blood test administered, the arresting police officer can obtain a court order to forcibly administer a DUI blood test.
If you refuse to have a DUI blood test and the test is then administered and you are found to be legally intoxicated, the following consequences can apply in Michigan:
- Driver’s license suspended for one year after refusing to take blood test the first time.
- Driver’s license suspended for two years after refusing to take blood test a second time in seven years.
- Driver not eligible for restricted driver’s license.
- Refusal to take DUI blood test can be used as evidence in court trial.
Refusing to take a DUI blood test in Michigan can have serious legal consequences. That’s why it’s critical that you talk to an attorney as soon as possible if you have been arrested or charged with DUI after refusing to take a blood test.
If you refuse to cooperate with an Implied Consent test at the police station, the officer can get a warrant that requires you to provide a blood sample. Your blood may be drawn at the police station or jail by trained law enforcement personnel, or in a medical facility by a licensed medical professional. Either way, the blood sample is sent to the Michigan Department of State Police Laboratory and analyzed for alcohol. Then, a lab report is sent back to the arresting agency. This is a slow process – it can take anywhere from three weeks to nine months or more for the results to get back to the arresting agency.
There are several ways a DUI attorney can challenge the results of a blood draw. Law enforcement officers are required to follow certain protocols when requesting and performing the blood draw. Even tests performed at the State Police Laboratory are not infallible, as mistakes made by personnel or defective equipment can alter results. There could also be storage or chain-of-custody issues involved in the transportation of the blood sample from the jail or medical facility to the State Police Laboratory. Having a lawyer on your side who understands testing protocols and procedures can make a significant difference in your case.
There are two types of breath tests used in DUI arrests in Michigan. The first is the preliminary breath test (PBT) that is administered at the scene. This test is used to establish suspicion and is only admissible in court under very specific circumstances.
The second test is the Chemical Breath Test (Datamaster) administered at the police station. This test can generally be admitted in court and used to actually charge you with DUI.
The attorneys at Manley & Manley understand how to challenge breathalyzer tests. Many factors can affect the result of a breath test. In addition to operator error, improper handling of evidence and defective equipment, breath test results might be inaccurate due to:
- Diet – Low carb, high protein diets like the Atkins Diet sometimes produce high BAC readings
- Diabetes – Acetone in the breath caused by hypoglycemia can produce false BAC readings
- Holding your breath – Higher BAC readings can occur, sometimes by as much as 20 percent
- Burping – False BAC readings have been recorded by people who burped within 20 minutes of taking a breath test, because small amounts of alcohol can be picked up
Our attorneys also know how to challenge procedural issues that could be associated with the breathalyzer test at the station, such as failure to inform you of your rights.
As the name of the test implies, a blood sample taken from you at a hospital or police station will be used to determine your BAC level. People tend to assume that blood tests are more accurate than they really are. Your Michigan DUI attorney should challenge these tests, because some results can produce falsely high BAC readings for several different reasons, including:
- People with diabetes or high ketones in the blood
- Alcohol swab on the skin before the needle is inserted
- Testing only the blood serum instead of testing the whole blood. Blood serum tests sometimes produce BAC results that are 25 percent higher
- Improperly stored blood sample
Urine tests are sometimes given by police in Michigan to determine a person’s BAC level. Ethyl glucuronide (Etg), a substance formed by the consumption of alcohol, should appear in a person’s urine soon after consumption of alcohol.
These tests are not always accurate. In some cases, urine tests produce false BAC readings. In particular, alcohol can sometimes take up to 2 hours to appear in a person’s urine. As a result, a person’s urine test might not accurately reflect how much alcohol was in his or her body at the time of the traffic stop. Nicotine, certain prescription drugs and other pharmaceuticals can also affect a person’s BAC in urine.
Because of the various factors that may be involved, it’s important to have a lawyer examine your test results and decide if you have a legitimate case if you’ve been charged with OWI due to a positive urine test.