What a PBT and Implied Consent Mean in Michigan

Two breath tests, two different laws

If you were pulled over and asked to blow into a handheld device, then arrested and asked to blow again at the station, you were given two different tests. They have different names, different legal rules and very different consequences for refusing. Most of the confusion about "the breathalyzer" in Michigan comes from mixing them up.

The first is the preliminary breath test, or PBT. The second is the evidentiary chemical test, which is the breath, blood or urine test the officer requests after an arrest. Michigan's implied consent law applies only to the second one. This page is general information about Michigan law, not advice about your case. The facts of your own arrest matter, so talk to a lawyer about them.

Michigan does not use the word "DUI" in its statute. The offense is operating while intoxicated, or OWI, under MCL 257.625(1). The pages on the Grand Rapids drunk driving defense and on implied consent cover the firm's side of these cases; this page explains the two tests and the rules behind them.

The roadside PBT: what MCL 257.625a(2) allows

Under MCL 257.625a(2), an officer who has reasonable cause to believe you were operating a vehicle on a public road or in a public parking area, and that alcohol or drugs may have affected your ability to drive, may require you to submit to a preliminary chemical breath analysis. The officer may arrest you "in whole or in part" on the result under MCL 257.625a(2)(a).

For most drivers, refusing a lawful PBT request is a civil infraction under MCL 257.625a(2)(d). That is a ticket, not a crime, and it does not by itself suspend your license. There are two exceptions. A driver under 21 who refuses a PBT also gets 2 points under MCL 257.320a(1)(v). A person driving a commercial motor vehicle who refuses commits a misdemeanor punishable by up to 93 days in jail under MCL 257.625a(5), plus a 24-hour out-of-service order under MCL 257.625a(3).

The PBT result has limited use in court. Under MCL 257.625a(2)(b), it is admissible in an OWI prosecution only to help a judge decide a challenge to the validity of the arrest, or to rebut certain testimony about whether your alcohol level was rising or falling. It is not the number a jury hears as proof of guilt. The roadside PBT article in the OWI guide goes deeper, including the 15-minute observation rule.

One more point matters. Taking the PBT does not finish your obligations. Under MCL 257.625a(2)(c), a person who takes a PBT "remains subject to" sections 625c through 625f, which govern the test after arrest.

Implied consent: the test after arrest

MCL 257.625c(1) says that a person who operates a vehicle on a public highway or other place open to the public is considered to have given consent to chemical tests of blood, breath or urine, if that person is arrested for OWI, OWVI, OWI causing injury or death, the under-21 offense, OWI with a child passenger, or the any-amount drug offense. The consent attaches at arrest, not when you got your license.

The test is given at the request of an officer who has reasonable grounds to believe you committed one of those crimes, under MCL 257.625a(6)(d). Before the test, MCL 257.625a(6)(b) requires the officer to advise you of five things:

• If you take the officer's test, you have the right to demand that a person of your own choosing give you one of the chemical tests as well.
• The results are admissible in a judicial proceeding and will be considered with other evidence in deciding guilt or innocence.
• You are responsible for obtaining a chemical analysis of a sample taken at your own request.
• If you refuse, a test must not be given without a court order, but the officer may seek one.
• Refusing will result in suspension of your license and the addition of 6 points to your driving record.

What a refusal of the station test sets in motion

A refusal does not mean no test. MCL 257.625d(1) says a test shall not be given without a court order after a refusal, "but the officer may seek to obtain the court order." The United States Supreme Court held in Birchfield v. North Dakota (2016) that police may take a breath test without a warrant after a lawful drunk driving arrest, but need a warrant for blood. After a refusal, an officer can apply to a judge for a warrant to draw blood.

The officer must also report the refusal to the Secretary of State under MCL 257.625d(2) and give you written notice under MCL 257.625e that you have 14 days from the date of the notice to request a hearing. The notice must say that failing to request one will result in suspension. The 14 days run from the notice, not from the court date.

If you do not request a hearing, or you request one and do not prevail, MCL 257.625f(1)(a) requires the Secretary of State to suspend your license for 1 year, or 2 years for a second or later refusal within 7 years, and MCL 257.320a(8) adds 6 points. The hearing covers only four issues listed in MCL 257.625f(4): reasonable grounds, arrest, whether the refusal was reasonable, and whether you were advised of your rights. The implied consent hearing article explains how it runs.

At trial, MCL 257.625a(9) allows the refusal to be mentioned only to show that a test was offered, not as evidence of guilt, and the jury must be instructed on that. The sibling guide on refusing a breath test, PBT versus evidentiary test sets the two refusals side by side.

What to do with this information

Find the paper the officer gave you. If you refused the station test, it is the notice that starts the 14-day period, and the Secretary of State's current form, "Request for Hearing: Implied Consent Violation," must be postmarked or submitted electronically within that period. If you refused, or a test showed an unlawful alcohol level, MCL 257.625g(1) directs the officer to take your license and issue a temporary paper permit, which you should keep with you.

Write down what you remember about the roadside tests, what the officer said before the station test, and the times. Whether the five advisements were given is one of the four hearing issues, and memory fades fast. The implied consent law article lists the cases that shaped these rules if you want the full picture.

A lawyer matters most here when the 14-day deadline is close, when a blood warrant was obtained, or when you are not sure which test you refused. The hearing and the criminal case run on separate tracks with separate deadlines, and a lawyer can request the hearing, obtain the officer's report and video, and tell you how the refusal affects your OWI case. The office of Attorney Shawn Haff in Wyoming and Grand Rapids handles OWI cases in the West Michigan district courts and offers a free consultation at 616-438-6719, answered 24 hours a day.