Michigan's rule on refusing a breathalyzer turns on a feature the national template does not capture: A first refusal generally results in a one-year license suspension; subsequent refusals carry longer suspensions, with a Driver Assessment and Appeal Division hearing right if timely requested. Refusal can be a civil infraction or affect criminal sentencing depending on history. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally require a warrant. The controlling authority is Mich. Comp. Laws § 257.625c. Michigan drivers consent to chemical tests of blood, breath, or urine when arrested for operating while intoxicated. Officers must read the chemical-test rights advice describing the consequences of refusal.
Key takeaways
- Primary authority: Mich. Comp. Laws § 257.625c.
- Administrative hit: A first refusal generally results in a one-year license suspension; subsequent refusals carry longer suspensions, with a Driver Assessment and Appeal Division hearing right if timely requested.
- Criminal exposure: Refusal can be a civil infraction or affect criminal sentencing depending on history.
- Evidence: Refusal is admissible in the OWI prosecution and may be argued as consciousness of guilt.
- Blood vs. breath: federal Supreme Court doctrine in Birchfield and McNeely still frames warrant rules.
Worked example under Michigan law
The illustration below uses only rules already stated for Michigan. It is a research hypothetical, not a prediction of what a court will do.
A driver is arrested for DUI in Michigan and refuses the evidentiary chemical test after the implied-consent advisory.
- Identify the administrative consequence under Mich. Comp. Laws § 257.625c: A first refusal generally results in a one-year license suspension; subsequent refusals carry longer suspensions, with a Driver Assessment and Appeal Division hearing right if timely requested.
- Separate that track from the criminal case: Refusal can be a civil infraction or affect criminal sentencing depending on history. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally require a warrant.
- Ask whether the refusal can be argued to the jury: Refusal is admissible in the OWI prosecution and may be argued as consciousness of guilt.
- If the request is for blood rather than breath, apply the warrant rule: Breath tests are standard; blood draws are frequently obtained by warrant when breath is refused or drugs are suspected.
In Michigan the refusal question is answered first by Mich. Comp. Laws § 257.625c, then by the administrative deadline and the criminal case.
Implied consent in Michigan
Michigan drivers consent to chemical tests of blood, breath, or urine when arrested for operating while intoxicated. Officers must read the chemical-test rights advice describing the consequences of refusal.
Implied consent is not the same as a Miranda warning. Officers typically must advise of the consequences of refusal before requesting a chemical test. Failure to give a required advisory can affect whether the administrative suspension sticks — a frequent issue in Michigan appellate opinions.
License suspension and administrative hearings
A first refusal generally results in a one-year license suspension; subsequent refusals carry longer suspensions, with a Driver Assessment and Appeal Division hearing right if timely requested.
The DMV / administrative track often runs separately from the criminal DUI case. Missing the short window to request an administrative hearing can lock in a suspension even if the criminal charge is later reduced or dismissed. Always calendar the administrative deadline the same day as the arrest.
Criminal consequences of refusal
Refusal can be a civil infraction or affect criminal sentencing depending on history. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally require a warrant.
Under Birchfield v. North Dakota, the Fourth Amendment allows criminal penalties for refusing a warrantless breath test incident to a lawful DUI arrest, but generally requires a warrant (or a recognized exception) before the State may impose criminal penalties for refusing a blood draw. Missouri v. McNeely rejected a per-se exigency based solely on natural dissipation of alcohol in the blood. Michigan statutes and case law implement those federal baselines with local detail.
Can refusal be used as evidence?
Refusal is admissible in the OWI prosecution and may be argued as consciousness of guilt.
Prosecutors often argue consciousness of guilt; defense counsel emphasize confusion, inadequate advisories, or medical inability to provide a sample. The precise jury instruction language is state-specific — search Michigan opinions for “refusal” and “implied consent.”
Breath tests versus blood tests
Breath tests are standard; blood draws are frequently obtained by warrant when breath is refused or drugs are suspected.
Practical tip: a driver who refuses breath may still face a warrant-backed blood draw. Refusal does not create a permanent shield against chemical evidence; it mainly adds administrative (and sometimes criminal) consequences on top of the underlying DUI case.
Practical tips
- Ask whether the stop and arrest were lawful — implied consent usually requires a lawful DUI arrest first.
- Diary the administrative hearing deadline immediately.
- Do not confuse portable roadside breath screens with the evidentiary breathalyzer at the station; statutes often treat them differently.
- Research Michigan opinions on implied consent, refusal, and license revocation in LawDiver before a contested DMV hearing.
Case law: implied consent and refusal in Michigan
McNITT v. CITCO DRILLING COMPANY; GILBERT v. LEACH
McNITT v. CITCO DRILLING COMPANY; GILBERT v. LEACH, 397 Mich. 384 (1976)
…ions of the Michigan Vehicle Code are sometimes called the "implied consent law” and it is provided that a person who operates a motor vehicle "is deemed to have given consent” to a blood alcohol test, it is also provided that "no test shall be given” to a person who refuses to consent. As the trial judge in McNitt declared, under the statute the issue "is not to be viewed in t…
Michigan opinions such as McNITT v. CITCO DRILLING COMPANY; GILBERT v. LEACH are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Michigan Vehicle Code are sometimes called the 'implied consent law” and it is provided that a person who operates a motor vehicle 'is deemed to have given consent” to a blood alcohol test, it is also provided that 'no test shall be given” to a person who refuses to consent." That is the language to brief; the rest of the decision supplies the procedural posture.
Hall v. Secretary of State
Hall v. Secretary of State, 60 Mich. App. 431 (1975)
…the section of the Michigan Motor Vehicle Code dealing with implied consent. An order of the Secretary of State suspending plaintiff's license for 90 days was affirmed on appeal to the Eaton County Circuit Court. Application for leave to appeal to this Court was granted. At the hearing before the License Appeal Board the police officer gave as his reason for refusing plaintiff…
On implied consent / breathalyzer refusal, Hall v. Secretary of State speaks to the Michigan dispute in this passage: "Michigan Motor Vehicle Code dealing with implied consent. An order of the Secretary of State suspending plaintiff's license for 90 days was affirmed on appeal to the Eaton County Circuit Court. Application for leave to appeal to this Court was granted." The surrounding opinion shows how the court applied that language to the record.
Gallagher v. Secretary of State (On Rehearing)
Gallagher v. Secretary of State (On Rehearing), 59 Mich. App. 269 (1975)
…This, of course, calls into question the provision of the "implied consent” statute when the person requested to submit thereto has not been validly arrested. We set forth the relevant section of the act: *275 "(1) A person who operates a vehicle upon the public highways of this state is deemed to have given consent to chemical tests of his blood, breath, urine or other bodily…
On implied consent / breathalyzer refusal, Gallagher v. Secretary of State (On Rehearing) speaks to the Michigan dispute in this passage: "This, of course, calls into question the provision of the 'implied consent” statute when the person requested to submit thereto has not been validly arrested." The surrounding opinion shows how the court applied that language to the record.
People v. Keskimaki
People v. Keskimaki, 446 Mich. 240 (1994)
…hysician-patient privilege contained in subsection 9 of the implied consent statute encompasses the situation in which an occupied vehicle is lawfully "parked" on the shoulder of the roadway with headlights on and engine running. We conclude that both the trial court and the Court of Appeals erred in characterizing such a situation as an accident within the meaning of the statu…
People v. Keskimaki is worth reading on Michigan implied consent / breathalyzer refusal because the court put the point in its own words: "hysician-patient privilege contained in subsection 9 of the implied consent statute encompasses the situation in which an occupied vehicle is lawfully 'parked' on the shoulder of the roadway with headlights on and engine running. We conclude that both the trial court and the Cour" Use that passage as the starting point, then read the facts that precede it.
People v. Perlos; People v. Brown; People v. Miller; People v. Bentley; People v. Schomer
…would clearly constitute state action. In most states, the implied consent laws specifically provide that chemical tests may only be performed at the request of a peace officer. 1 Those statutes insure that the protections of the Fourth Amendment will be triggered. In our view, there is very little distinction for Fourth Amendment purposes between a prior request that blood be…
Practitioners open People v. Perlos; People v. Brown; People v. Miller; People v. Bentley; People v. Schomer when Michigan implied consent / breathalyzer refusal turns on the distinction in this sentence: "In most states, the implied consent laws specifically provide that chemical tests may only be performed at the request of a peace officer. 1 Those statutes insure that the protections of the Fourth Amendment will be triggered." Do not lift it out of the facts the court was deciding.
People v. Dewey
People v. Dewey, 172 Mich. App. 367 (1988)
…The appellant withheld the evidence (her breath) under the implied consent law, not the State. [Id.] We are persuaded that the Zoss decision is correct and we conclude that defendant’s constitutional right to due process was not violated in this case. We also disagree with defendant’s second claim of error. Defendant contends that the ouil statute gives an accused the right to…
Michigan opinions such as People v. Dewey are cited where implied consent / breathalyzer refusal is disputed. The court stated: "The appellant withheld the evidence (her breath) under the implied consent law, not the State. [Id.] We are persuaded that the Zoss decision is correct and we conclude that defendant’s constitutional right to due process was not violated in this case." That is the language to brief; the rest of the decision supplies the procedural posture.
People v. Castle; (City of Kalamazoo v. Castle)
People v. Castle; (City of Kalamazoo v. Castle), 108 Mich. App. 353 (1981)
…r being advised of his rights in compliance with Michigan’s implied consent statute. MCL 257.625 et seq.; MSA 9.2325 et seq. Defendant refused to take the test because he wished first to consult his attorney. At 9:20 p.m., defendant’s attorney arrived at the station and soon thereafter requested that the defendant be given a Breathalyzer test. The police refused to administer t…
Michigan opinions such as People v. Castle; (City of Kalamazoo v. Castle) are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Michigan’s implied consent statute. MCL 257.625 et seq.; MSA 9.2325 et seq. Defendant refused to take the test because he wished first to consult his attorney. At 9:20 p.m." That is the language to brief; the rest of the decision supplies the procedural posture.
Frequently asked questions
What happens if I refuse a breathalyzer in Michigan?
A first refusal generally results in a one-year license suspension; subsequent refusals carry longer suspensions, with a Driver Assessment and Appeal Division hearing right if timely requested. Refusal can be a civil infraction or affect criminal sentencing depending on history.
Is refusal a separate crime in Michigan?
Refusal can be a civil infraction or affect criminal sentencing depending on history. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally require a warrant.
Will the prosecutor tell the jury I refused?
Refusal is admissible in the OWI prosecution and may be argued as consciousness of guilt.
Do I need a warrant for a blood draw?
Breath tests are standard; blood draws are frequently obtained by warrant when breath is refused or drugs are suspected. See also Birchfield and McNeely linked above.