Refusing a Breath Test in Michigan: PBT Refusal vs. Evidentiary Test Refusal

Which test did you refuse?

If you said no to a breath test during a drunk driving arrest, the first question is which test it was. The handheld device at the roadside and the instrument at the police station are governed by different sections of the Michigan Vehicle Code, and the consequences are far apart. One is a ticket. The other can take your license for a year even if the criminal case is later dismissed.

This page compares the two refusals. It does not suggest that you should take or refuse any test; it describes what the statutes say happens after each choice. It is general information about Michigan law, and the right move in any real case depends on its facts, so talk to a lawyer about your own case. The firm's page on Michigan implied consent explains how the office approaches a refusal case.

Michigan charges operating while intoxicated, or OWI, under MCL 257.625(1); the term "DUI" is not used in the statute. The sibling guide on what a PBT and implied consent mean explains the two tests themselves.

Refusing the roadside PBT

Under MCL 257.625a(2), an officer with reasonable cause may require a preliminary chemical breath analysis before arrest. If you refuse a lawful request, MCL 257.625a(2)(d) makes that a civil infraction for most drivers. A civil infraction is not a crime, it carries no jail, and section 625a does not attach any license suspension to it. Two groups are treated differently.

• Drivers under 21: the refusal is still a civil infraction, but MCL 257.320a(1)(v) adds 2 points to the driving record.
• Commercial motor vehicle drivers: refusing the PBT is a misdemeanor punishable by up to 93 days in jail under MCL 257.625a(5), and the officer must issue a 24-hour out-of-service order under MCL 257.625a(3).
• Everyone: refusing the PBT does not prevent an arrest. Under MCL 257.625a(2)(a) an officer may arrest based in whole or in part on a PBT result, but the general arrest rules still apply without one, and the officer can rely on driving, field sobriety tests and other observations.
• Everyone: taking or refusing the PBT does not change your position on the later test. MCL 257.625a(2)(c) says the person remains subject to sections 625c through 625f.

Refusing the evidentiary test after arrest

After an arrest for OWI or a related offense, MCL 257.625c(1) treats you as having consented to a chemical test of blood, breath or urine. Before the test, the officer must read you the rights in MCL 257.625a(6)(b), which include a warning that refusing will result in a license suspension and 6 points. If you refuse, five things follow under the statute.

First, MCL 257.625d(1) says a test shall not be given without a court order, "but the officer may seek to obtain the court order." The United States Supreme Court held in Missouri v. McNeely (2013) that the natural dissipation of alcohol does not by itself excuse the warrant requirement for blood, and in Birchfield v. North Dakota (2016) that a warrantless breath test is allowed incident to arrest but a warrantless blood test is not. An officer can apply for a blood-draw warrant after a refusal, so a refusal can produce both a license sanction and a blood result.

Second, the officer reports the refusal to the Secretary of State under MCL 257.625d(2) and, under MCL 257.625g(1), confiscates your license and issues a temporary paper permit if you are otherwise eligible. Third, the officer must give you written notice under MCL 257.625e that you have 14 days from the date of the notice to request a hearing, and that failing to do so results in suspension.

Fourth, if no hearing is requested or you do not prevail, MCL 257.625f(1)(a) requires a 1-year suspension, or 2 years for a second or later refusal within 7 years, and MCL 257.320a(8) adds 6 points. A refusal in any vehicle also suspends commercial driving privileges for 1 year under MCL 257.319b(1)(c)(iv). Fifth, at trial MCL 257.625a(9) allows the refusal to be mentioned only to show that a test was offered, "but not as evidence in determining the defendant's innocence or guilt," and the jury must be instructed on that. The OWI guide covers this in refusing a breath or blood test and refusal evidence at trial.

The 14-day hearing and what comes after it

The hearing is held by the Secretary of State's Office of Hearings and Administrative Oversight, and the request form must be postmarked or submitted electronically within 14 days. Under MCL 257.625f(4), the hearing officer decides only four questions: whether the officer had reasonable grounds to believe you committed a listed crime, whether you were arrested for one, whether your refusal was reasonable, and whether you were advised of your rights under MCL 257.625a(6). Whether you were actually intoxicated is not one of them. The implied consent hearing article covers the burden of proof and what happens if the officer does not appear.

If you lose, MCL 257.625f(7) imposes the suspension, and MCL 257.323(1) lets you petition the circuit court in the county where you were arrested within 63 days, or 182 days for good cause. For a first refusal, MCL 257.323(3) allows the court to take testimony and affirm, modify or set aside the suspension.

A restricted "hardship" license during a refusal suspension comes only from the circuit court under MCL 257.323c, and only if you state under oath, and the court finds, that you cannot take public transportation to work, school or treatment and have no one able to drive you. The court cannot order one if you had a refusal suspension within the preceding 7 years, had more than 24 points in the 2 years before the suspension, or need it for a commercial vehicle, under MCL 257.323c(2) through (4). The sibling guide on getting your license back places the refusal suspension next to the other license sanctions.

What to do now

Find the written notice the officer gave you and the date printed on it. Count 14 days from that date, not from your arrest or your court date, and treat the earlier of the two as the deadline if the dates differ. The Secretary of State's form is called "Request for Hearing: Implied Consent Violation," it requires an original signature, and it can be submitted online or mailed to the address printed on the current form.

Keep the temporary permit from the officer with you. Under MCL 257.625g(3), if the case is prosecuted it lasts until the charges are resolved or the license is suspended, restricted or revoked. Write down what the officer said before asking for the test and whether anything made the test hard to complete, because the "reasonable refusal" and "advised of rights" questions turn on those details.

A lawyer matters for your own case when the deadline is close, when a blood warrant was executed, or when the refusal and the OWI charge together threaten your job or a commercial license. The license hearing and the criminal case are separate proceedings, and each has its own record and deadlines. The office of Attorney Shawn Haff in Wyoming and Grand Rapids handles OWI cases and implied consent hearings for drivers in West Michigan and offers a free consultation at 616-438-6719, with the phone answered 24 hours a day.