OWI Per Se and Implied Consent: Michigan OWI Laws


In Michigan, there are two ways for the prosecutor to prove the crime of Operating While Intoxicated (OWI) beyond a reasonable doubt. First, the prosecutor can show the jury that your ability to operate a motor vehicle was “substantially lessened by the consumption of alcohol.”

The second way, which is unlawful blood alcohol level, all the prosecutor needs to show is that 1) you were driving a motor vehicle and 2) that your blood alcohol level was above the legal limit at the time you were driving. The legal limit in Michigan is .08.

The second theory is known as “OWI Per Se” because the prosecutor does not need to relate the blood alcohol level to the driving, and the prosecutor does not need to prove that your ability to operate the motor vehicle was substantially lessened by the consumption of alcohol. Under this theory, the prosecutor must introduce evidence of your blood alcohol level, and the prosecutor must prove that the result from the test is reliable. The jury may use that result alone to find a person guilty beyond a reasonable doubt.

Implied Consent Violation

If you operate a motor vehicle under the influence of alcohol and are arrested, you will be required to take a chemical test to determine your blood alcohol content (BAC) level. Michigan has an Implied Consent law, which means that by having a driver’s license, you have given your consent to submit to this chemical test. Refusing the chemical test can have consequences.

Refusing to take a BAC Test in Michigan

If you refuse a test, your license will be automatically suspended for one year and six points will be added to your driving record. If you are arrested a second time in seven years and refuse the test again, your licenses is suspended for two years and six points will be added to your driving record. The suspension will occur regardless of whether you are actually convicted of a DUI.

Driver’s License Suspension and Getting it Back

If your license is suspended because you refuse to submit to the chemical test, you may appeal the suspension to the Traffic Safety Division, where you may have an attorney represent you. This hearing is separate from any criminal charges that may result from your arrest. At Grabel & Associations, an attorney may be able to argue that it was reasonable under the circumstances for you to refuse and potentially get your license back.

At your hearing in front of the Traffic Safety Division, your attorney may be able to argue that the police officer didn’t give clear and unequivocal warnings of the consequences of Breathalyzer refusal. Your attorney may also be able to appeal your suspension to circuit court in order to obtain a restricted license that will allow you to legally drive to school, work, court appearances, and doctor’s appointments.

Implied Consent Law doesn’t apply to Preliminary Breath Tests

It is important to know that the implied consent law only applies to the Breathalyzer test that is administered at the police station; it does not apply to the preliminary breath test (PBT) that is given on site when you are pulled over. However, it is a civil infraction to refuse a PBT, but the consequences are not as severe. Refusing the chemical test at the police station triggers the implied consent law, and even if you refuse, the police may be able to obtain a search warrant that requires you to submit to a blood or urine test if they can show a judge that they have probable cause to believe that you were operating a motor vehicle under the influence.

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