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Key Takeaways:

  • There are two separate types of breath test that people are asked to take: Preliminary Breath Tests (PBT), which are usually given on the side of the road during a traffic stop on suspicion of OWI; and Data Master Breathalyzer Tests, which are usually given at the station.
  • The purpose of a PBT is to establish probable cause to arrest you. The purpose of a Data Master Breathalyzer Test is to convict you.
  • Refusing a PBT during a roadside stop is a civil infraction in Michigan. Unless the driver is a minor or holds a commercial license, the only penalty for refusing a PBT is a fine (usually $100-$200).
  • Refusing a Data Master Breathalyzer test is more serious. The consequences you will face (immediate driver’s license suspension for at least one year and up to two years; 6 points on your driver’s license) are so large that it very rarely makes sense to refuse a Data Master Breathalyzer Test when it is offered at the police station.

 If you refuse to take a breath test after you were arrested on suspicion of drunk driving in Michigan, what happens next depends on a few factors.

There are two separate breath tests when you hear some say that they “refused to blow”, or they refused to take a breath test.

The first time most drivers who are stopped for suspicion of drunk driving are given an opportunity to do a breath test is at the roadside when they are still being initially detained and investigated by the police officer for suspicion of drunk driving or OWI (Operating While Intoxicated). That is a Preliminary Breath Test, frequently referred to as a PBT.

The refusal to take a PBT at the roadside during the investigation or when stopped by a police officer is a civil infraction in Michigan. It does not carry any points on your driver’s license. In fact, it typically does not even get abstracted to your driver’s license record unless the driver is a minor or has a commercial driver’s license. Outside of the context of the driver being a minor or having a commercial driver’s license, the only potential penalty for refusal to take a preliminary breath test (or PBT) is a fine of between $100 and $200.

That is relatively mild compared to the second breath test that is typically asked of someone that has been pulled over, stopped, and detained for suspected drunk driving (or OWI). The second breath test is usually administered at the police station, and is known as the Data Master Breathalyzer Test.

The Data Master Breathalyzer Test does not occur at the roadside during the stop, as is the procedure for a PBT. Rather, it is administered at the police station once you have been arrested for suspicion of drunk driving.

This is an important distinction to make here. The PBT is typically the last step in the roadside police officer determining whether he has probable cause to make an arrest for OWI. In order to make an arrest without a warrant, a police officer has to have probable cause that a crime occurred in his presence. If you have been pulled over and the police officer is investigating you for suspicion of drunk driving, the alleged crime obviously occurred in his presence, because he saw you driving erratically (allegedly) and therefore pulled you over. In order to make that warrantless arrest on such a crime, he has to have probable cause.

In determining probable cause, most police officers go through a series of steps. Initially, they will:

  • Ask you questions and evaluate your answers for signs of intoxication
  • Note whether your speech is slurred
  • Note whether your eyes are glassy or bloodshot
  • Note whether you’re able to communicate clearly.

After that, the next step is to remove you from your car and to go through three common field sobriety tests, which are sometimes abbreviated as FSTs or even SFSTs, which is short for Standard Field Sobriety Tests.

Those three tests are:

  • The Horizontal Nystagmus Test, or HGN: This is a test where the police looks for nystagmus in your eyes by taking a pen or his fingers and having your eyes track as he moves the object back and forth to see if your eyes contract without moving your head, evaluating at what point your eyes engage in what’s called nystagmus (which is involuntary movement of the eyes which may cause them to move rapidly from side to side, up and down, or in a circle).
  • The Walk-And-Turn: In this test, they’ll have you take 9 or 10 steps heel-to-toe, turn around, and take 9 to 10 steps back. They will test your ability to retain coordination when completing the activity.
  • The One-Legged Stand: In this test, they’ll have you raise one leg in the air 6 to 12 inches off the ground without putting your hands out for balance, and hold it there for 30 seconds.

If you fail one or more of those three standard field sobriety tests, most of the time most police officers will give you the opportunity to take a PBT. The PBT is a very criticized test, because it is highly questionable in its accuracy. It is just not very reliable.

If you consent to taking the PBT and it reads 0.08 BAC or higher, which is the legal limit in Michigan for drunk driving, it becomes one more nail in the coffin, so to speak—one more fact that the police officer can cite supporting probable cause that you were in fact driving drunk, and he therefore has the legal right to arrest you.

Importantly, the PBT is nearly always, if not literally always, used to help the police officer establish probable cause to detain you, arrest you, and take you to the police station. Once you get to the police station, the decision as to whether the police officer feels he has probable cause to arrest you for drunk driving has already been made.

The Data Master Breathalyzer test done at the police station, on the other hand, is not done for purposes of helping the police officer establish probable cause to arrest you. You’ve already been arrested. No further probable cause is necessary.

Instead, the Data Master Breathalyzer test in Michigan is executed to help convict you of drunk driving. The Data Master is the test that will be offered as evidence against you at a trial — if you go to trial — to prove you guilty of the drunk driving charge.

The PBT is almost never admitted at trial, and will not be presented to the jury or to the finder of fact to establish your guilt on the charge of drunk driving. The only time the PBT will be admitted into Court is if there is a Motion Hearing challenging the probable cause to arrest you. If there is a Motion Hearing, the police officer can cite the PBT as a fact that gave him support or probable cause to support the arrest of the driver. However, the PBT itself is not going to be admitted at trial, in front of a jury, or in front of a finder of fact.

What is admitted before the jury or the trier of fact is the Data Master Breathalyzer test. The reason for that is the Data Master is alleged to be more accurate, and to be based on a more valid scientific process. If you refuse to take the police station Data Master Breathalyzer test, it is a big deal—a much bigger deal than if you refuse to take the PBT.

Upon refusal, you will face:

  • Immediate suspension of your driver’s license for at least one year, and up to two years.
  • Six points assigned to your driving record, which is an astronomical number of points, and which is more than some of the drunk driving convictions that Michigan carries.

Refusing the Data Master Breathalyzer test will have devastating consequences for your driver’s license, your driving record and of course the number of points on your driving record. It is therefore something that should be done rarely if ever.

The bottom line is that it is not a good idea to refuse the police station Data Master Breathalyzer test.

For more information on OWI Law in Michigan, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (248) 509-0056 today.

Mark Satawa

Call Today For Your Free Case Strategy Session
(248) 509-0056