Michigan's implied consent law

Michigan's implied consent law, MCL 257.625c, says that a person who drives on a public highway or other place open to the public or generally accessible to vehicles is considered to have consented to chemical tests of blood, breath or urine, if that person is arrested for an OWI-family offense.^[1] The consent attaches on arrest, the arrested driver must be advised of five statutory rights, and a refusal leads to license sanctions rather than a forced test without a court order.^[6][3][5] This page covers what the law requires; what happens after a refusal is on refusing a breath or blood test.

Who is covered, and when

Implied consent applies to a person who operates a vehicle on a public highway or other place open to the general public or generally accessible to motor vehicles, including a parking area, who is then arrested for a violation of section 625(1), (3), (4), (5), (6), (7) or (8), section 625a(5), or section 625m.^[1][7] In plain terms, those are OWI, OWVI, OWI causing death or serious impairment, the under-21 offense, OWI with a child passenger, the any-amount drug offense, a commercial driver's PBT refusal, and the commercial 0.04 offense.^{[8][9][10][11][12][13][14][15][16]}

It also applies after an arrest for moving violation causing death or serious injury, reckless driving causing serious impairment or death, or manslaughter or murder resulting from operating a vehicle, if the officer had reasonable grounds to believe the person was operating in violation of section 625.^[2]

A common error: the Secretary of State's driver manual says drivers consent when they apply for or renew a license, but the statute ties consent to operating a vehicle where the OWI law applies.^[17][7]

The arrest is the trigger

In People v Borchard-Ruhland (1999) a trooper asked an injured crash driver at the hospital for a blood sample before any arrest; she agreed and was not given the chemical-test advice because she was not under arrest.^[6] The Michigan Supreme Court held that "the clear language of the implied consent statute requires an arrest as a triggering event," so its provisions did not apply, and that the validity of her consent is judged under the Fourth Amendment and Const 1963, art 1, § 11.^[6]

The roadside preliminary breath test is separate. It may be required before arrest on reasonable cause, and taking it does not satisfy the later evidential test.^[18][19] See the roadside PBT.

What the officer must tell you

The evidential test is given at the request of a peace officer with reasonable grounds to believe the person committed one of the listed crimes.^[20] Under MCL 257.625a(6)(b), a person arrested for one of those crimes must be advised of all of the following:

1. If the person takes the officer's chemical test, he or she has the right to demand that a person of his or her own choosing administer one of the chemical tests.^[3]
2. The results are admissible in a judicial proceeding and will be considered with other admissible evidence in determining innocence or guilt.^[3]
3. The person is responsible for obtaining a chemical analysis of a sample obtained at his or her own request.^[3]
4. If the person refuses, a test must not be given without a court order, but the officer may seek to obtain one.^[3]
5. Refusing will result in suspension of the operator's or chauffeur's license and vehicle group designation or operating privilege, and the addition of 6 points to the driver record.^[3]

Whether the driver was advised of these rights is one of the four issues at a refusal hearing.^[21] Section 625a does not prescribe a form for the advisement or address whether a driver may consult a lawyer before deciding, so this page states no rule on either.^[3]

Which test?

The statute covers chemical tests of blood, breath or urine.^[1] The officer requests the test.^[20] Breath testing at the station is done on an instrument approved by the State Police, currently the Intoxilyzer 9000.^[22] Blood may be drawn at an officer's request only by a licensed physician or a qualified person acting under a physician's delegation in a medical environment.^[23] See the station breath test and blood tests.

Exceptions for blood draws

A person who has hemophilia, diabetes, or a condition requiring an anticoagulant under a physician's direction is not considered to have given consent to the withdrawal of blood.^[4] That does not rule out other tests or a warrant.^[24] In People v Hyde (2009), police told a diabetic driver he had to give blood under implied consent; the Court of Appeals rejected the argument that the evidence would inevitably have been found through a warrant.^[25]

The independent test

A person who takes the officer's test must be given a reasonable opportunity to have a person of his or her own choosing administer one of the chemical tests within a reasonable time after detention, and the person charged is responsible for getting that sample analyzed.^[20] The statute gives this right to a person who takes the officer's test.^[20] The Court of Appeals held in People v Green (2015) that a defendant cannot choose a particular State Police forensic scientist, and a trial court cannot order the State Police lab to retest its own evidence.^[26] More is on the right to an independent test.

Consent, refusal and warrants

If a person refuses, a test shall not be given without a court order, but the officer may seek one.^[5] When blood is taken under a search warrant, consent is no longer the issue and the implied consent statute does not apply.^[24] The US Supreme Court has held that breath tests may be taken without a warrant incident to a lawful drunk-driving arrest, but blood tests may not, and that motorists cannot be deemed to consent to a blood test on pain of committing a crime.^[27][28] The consequences the statute tells the driver about for refusing the evidential test are a license suspension and 6 points.^[3][29]

When a driver agrees to a test, courts look at whether the consent was voluntary. In People v Stricklin (2019), the Court of Appeals held that a driver's fear of losing his job because of a refusal suspension did not make his express consent to a blood draw involuntary.^[30] In People v Woodard (2017), it held that revoking consent after a lawful draw does not stop the analysis of the sample.^[31]

What a refusal leads to

For a noncommercial driver who refuses and does not request a hearing within 14 days, the Secretary of State suspends the license for 1 year, or 2 years for a second or later refusal within 7 years.^[29] Six points are added.^[32] A refusal in any vehicle also suspends commercial driving privileges for 1 year.^[33] At trial, a refusal may be mentioned only to show that a test was offered, with a jury instruction that it is not evidence of guilt.^[34] The hearing is described on the implied consent (refusal) hearing, and the warrant process on search warrants for blood.