A frequently asked question pertains to the consequences of refusing a breath test after a potential DUI traffic stop. The answer to this question is twofold and requires an analysis in the distinction between the Preliminary Breath Test (commonly known as the “PBT”) and the Bodily Alcohol Concentration/Content Datamaster Test (commonly known as the “BAC Test” or simply “Datamaster”).
Preliminary Breath Test (PBT)
A Preliminary Breath Test (PBT) is a handheld device which is used to determine whether alcohol was involved from a breath sample. This test is offered by the officer at the scene of the traffic stop and usually administered at the vehicle. The refusal to take a PBT is much less significant than the BAC Datamaster refusal. This charge does not involve any criminal charges or any loss of a driver’s license. Refusing a PBT is a civil infraction and may involve a fine up to $150. However, the penalties for someone under the age of 21 who refuses a PBT involve having 2 points added to their driving record.
BAC Datamaster Test
Refusing this test carries much more significant penalties than the PBT refusal. The Datamaster involves a machine used to take chemical test that determines your bodily alcohol content (BAC) and is performed at the police station. Under Michigan’s Implied Consent Law, all drivers are considered to have given their consent to this test. If you refuse this test, six points will be added to your driving record and your license will be suspended for one year. If you are arrested a second time in seven years and again unreasonably refuse the test, six points will be added to your driving record and your license will be suspended for two years. A conviction for a Datamaster refusal is separate and distinct from the impending Operating While Intoxicated criminal charge.
A Datamaster refusal by a driver will be written up as an “Officer’s Report of Refusal to Submit to a Chemical Test” on their Michigan Temporary Driving Permit. If you have been charged with a BAC Datamaster refusal, time is of the essence. The Temporary Driving Permit provided by the police officer will provide you with your rights and a place for you to sign your name and request a hearing with the Secretary of State. You have 14 days to request an administrative hearing to challenge the alleged refusal.
At the hearing it will be determined whether the police officer had probable cause for the initial stop,whether the officer read you your chemical breath rights, if there was probable cause for the arrest, and whether your refusal was reasonable. If you are unsuccessful at this hearing, you can then appeal to the Circuit Court in front of the Circuit Court Judge. The Circuit Court Judge can either restore your driver’s license or give you a restricted license. As mentioned earlier in this post, please remember this is all separate from the criminal charge associated with the traffic stop.
As you can see each incident will feature a unique set of facts and needs to be dissected very carefully to determine the best course of action. When retained on such a case, I exhaust all avenues to decide how to best advise my client and attain the proper resolution.
Please feel free to contact me if you have any questions pertaining to traffic stops, DUI/OWI Law, refusal of breath tests, administrative hearings, or any other legal concern.