If I am pulled-over while driving by a police officer and asked to take a preliminary breath test, should I refuse participation if I’ve been drinking?

It is not illegal to drink alcohol prior to driving an automobile in Michigan; it is illegal, however, to drive drunk. It is a universally accepted fact that alcohol impairs the ability to drive. Intoxication is measured “on the spot” by testing a driver’s blood alcohol content with a device known as a “breathalyzer”. This device performs a “preliminary breath test” that takes a reasonably accurate measurement of the suspect’s blood alcohol level.

Under Michigan’s implied consent laws, refusal to participate in a preliminary breath test when pulled-over while driving will result in a night in jail (22 hours minimum) and an automatic six-month suspension of your driver’s license, regardless of whether you’ve been drinking.

Prior to submitting to the breath test, consider removing your mouth-alcohol by breathing vigorously through your mouth in the moments preceding the test. Even though the breathalyzer is designed to detect mouth alcohol, a false positive may result when a person is just below the legal limit, yet has alcohol in his mouth from a recently consumed alcoholic beverage.

Prior to administering a breath test, most officers will ask you to perform a series of field sobriety tests. These typically include counting backwards, saying the alphabet, standing on one foot or walking a straight line. The officer must advise you of your “chemical test” rights prior to administering a breath test. You will be advised about the consequences of a refusal as well as your right to obtain an independent blood alcohol test.

Once you perform the breath test, politely ask the officer to show you the result. If the result from your preliminary breath test is .07 or lower, you are not legally impaired and you do not have to submit to an additional test. If asked to perform another test by the officer after blowing .07 or lower, you should ask for the printed breathalyzer receipt from your first test at this time and consider refusing a second test until you speak to an attorney. Many officers will allow you to use your cell phone to attempt to reach your attorney.

Driving over the legal blood-alcohol limit in Michigan (either as “impaired” or “operating under the influence of liquor”) is a misdemeanor punishable by up to 90-days in jail plus fines and court costs of up to $1000. Each district judge is different, but if you plead guilty or are convicted, you ordinarily will be sentenced to attend some form of alcohol awareness course, alcoholics anonymous or both. You may even see some jail time, although this is rare for a first alcohol-related offense. A second offense within seven years will net you some jail time in most district courts (usually from 14 to 90 days, but it could be up to a year).

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