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What happens if I don't consent to a DUI breath test?

Imagine that you are driving home one night when the dreaded red-and-blue lights start flashing behind you. It’s a police officer pulling you over.

The officer says you were swerving and it’s clear he thinks you are over the legal limit for driving. He pulls out a Breathalyzer and tells you to blow into it. Should you?

Any reader who has a driver’s license might find themselves in this scenario someday. Under Michigan law, having a driver’s license implies that the bearer of the license must consent to a breath test. However, the consequences of declining to take the test change depending on where the attempted test takes place.

During a traffic stop, refusing a breath test is a civil infraction, not a crime, because the implied consent law only applies to breath tests administered at the police station. Refusal on the street is not, on its own, probable cause to arrest you.

On the other hand, declining to submit to a breath test at the station could lead to police obtaining a search warrant against the inside of your body. If they get the warrant, they can draw your blood without your consent. Thus, declining the test may not accomplish anything, unless you are later able to show that the judge lacked sufficient cause to issue the warrant.

In addition, refusing the test triggers a year-long driver’s license suspension. But defendants do have the right to an administrative hearing on the matter, at which their defense attorney can argue whether police violated their rights, and possibly save their license.

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