Can a test refusal be used against you at an OWI trial in Michigan?

Yes, but only for a narrow purpose. In a Michigan OWI prosecution, evidence that the driver refused the post-arrest breath, blood or urine test is admissible "only to show that a test was offered to the defendant, but not as evidence in determining the defendant's innocence or guilt," and the jury must be told so.^[1] The model jury instruction says the refusal evidence was admitted "solely for the purpose of showing that a test was offered" and "is not evidence of guilt."^[2]

This page explains that rule, the instruction that goes with it, and where its limits are. It does not advise anyone whether to take or refuse a test; the consequences of each choice are set out in refusing a breath or blood test after arrest.

The statute: MCL 257.625a(9)

The full text of the rule reads:

"A person's refusal to submit to a chemical test as provided in subsection (6) is admissible in a criminal prosecution for a crime described in section 625c(1) only to show that a test was offered to the defendant, but not as evidence in determining the defendant's innocence or guilt. The jury must be instructed accordingly."^[1]

Three pieces of that sentence set its reach:

1. Which test. "A chemical test as provided in subsection (6)" is the evidential blood, breath or urine test given at an officer's request after arrest, not the roadside preliminary breath analysis.^[8][9]
2. Which cases. The rule applies in prosecutions for the crimes listed in MCL 257.625c(1): the section 625 offenses in subsections (1) and (3) through (8) (not the subsection (2) offense of allowing an intoxicated person to drive), the commercial driver's PBT-refusal and 0.04 offenses, and certain crash-related homicide and reckless-driving crimes.^[10][11]
3. Which purpose. The refusal may be shown only to explain that a test was offered, never as proof of guilt or innocence.^[1]

The jury instruction: M Crim JI 15.8

When refusal evidence is admitted, the jury hears this instruction, titled "Defendant's Decision to Forgo Chemical Testing":

"Evidence has been admitted in this case that the defendant refused to take a chemical test. If you find that the defendant did refuse, that evidence was admitted solely for the purpose of showing that a test was offered to the defendant. That evidence is not evidence of guilt."^[12]

The instruction's use note restates section 625a(9), including that "the jury must be instructed accordingly."^[12] The instruction was renumbered in February 2021 when the traffic chapter was rewritten; it was formerly M Crim JI 15.9.^[2][13] For the other OWI instructions, see the jury instructions for OWI.

Why a refusal might come up at all

A case in which a test was offered but no result is presented can leave a gap in the evidence. Section 625a(9) allows evidence of the refusal for one purpose, to show that a test was offered, while forbidding the jury from treating the refusal as evidence of guilt.^[1] The arrested driver is told before the test that a refusal means no test without a court order, though the officer may seek one, and that refusing will result in a license suspension and 6 points.^[14] None of those advisements says the refusal will be used to prove guilt, and the statute forbids that use.^[14][1]

The rest of the case is not limited by the refusal rule. The chemical-test provisions do not limit other admissible evidence on whether the person was under the influence or had an unlawful alcohol level, such as officer observations, driving behavior and video.^[15] For the categories of OWI evidence and how each is admitted, see the evidence in an OWI case.

A refusal does not stop a test by warrant

MCL 257.625d(1) says that after a refusal "a test shall not be given without a court order, but the officer may seek to obtain the court order."^[3] The Court of Appeals has said that when blood is taken under a search warrant, the issue of consent is removed and the implied-consent statute does not apply.^[4] Warrant law, including the US Supreme Court's decisions on blood draws, is covered in search warrants for blood.

Refusal at trial vs refusal at the license hearing

The trial rule and the license consequences are separate proceedings with separate rules:

Question	Criminal trial	Secretary of State
What the refusal is used for	Only to show a test was offered; not evidence of guilt.[1]	The officer sends a written report stating reasonable grounds, the refusal, and that the person was advised of the consequences.[16]
Deadline	Follows the criminal case schedule.	The person may request a hearing within 14 days of the date of the officer's notice; failing to do so results in suspension.[5]
Consequence	Jury is instructed under M Crim JI 15.8.[2]	For a non-commercial driver, 1-year suspension, or 2 years for a second or subsequent refusal within 7 years.[6]

The hearing is explained in the implied consent (refusal) hearing, and the consent rules in Michigan's implied consent law.

Roadside tests are a different subject

Section 625a(9) speaks to the evidential test. The roadside tests have their own statutes:

• Preliminary breath test. For drivers other than commercial drivers, refusing a lawfully requested PBT is a civil infraction; for commercial drivers, it is a misdemeanor punishable by up to 93 days and a 24-hour out-of-service order.^[17][18] PBT results themselves are admissible only for an arrest challenge or narrow rebuttal.^[19] Taking a PBT does not excuse the later evidential test.^[20]
• Oral-fluid pilot test. In counties in the State Police pilot, refusing a lawfully requested preliminary oral-fluid test is a civil infraction.^[21] Those results have the same limited trial uses as the PBT.^[22]
• Field sobriety tests. No verified source in this guide states a rule on whether declining field sobriety tests can be mentioned at trial, so none is given here.

See the roadside preliminary breath test for more.

Common misunderstandings

• "A refusal can never be mentioned in court." It can be, but only to show a test was offered, with a limiting instruction.^[1][2]
• "A refusal proves the driver knew he or she was over the limit." The statute bars using the refusal as evidence of guilt or innocence.^[1]
• "Refusing means there is no test evidence at all." The officer may seek a court order, and a warrant-based blood test is outside the implied-consent statute.^[3][4]
• "The refusal only matters if the case goes to trial." The Secretary of State suspends the license under MCL 257.625f for a refusal unless a hearing is requested within 14 days of the officer's notice, a process separate from the trial.^[5][6]

For what a jury trial involves in district court, see jury trials in OWI cases.