Can You Refuse a Preliminary Breath Test in Michigan?
By Triton Legal PLC | Mid-Michigan Criminal Defense
If you are pulled over in Michigan and an officer suspects you have been drinking, you will likely be asked to take a preliminary breath test before any arrest is made. Most people do not know whether they are legally required to take it, what happens if they refuse, or how it differs from the breath test that comes later at the police station.
The answer depends on which test you are being asked to take. Michigan law treats preliminary breath tests and post-arrest chemical tests very differently, and the consequences of refusing each one are not the same.
This post explains what a preliminary breath test is, how it differs from a chemical test after arrest, whether you can legally refuse each one, and what the consequences of refusal actually are.
Two Different Tests, Two Different Legal Frameworks
The most important thing to understand about breath testing in Michigan OWI cases is that there are two distinct types of tests, each governed by a different legal framework.
The Preliminary Breath Test (PBT). This is the handheld roadside device the officer uses during a traffic stop, before any arrest is made. Its purpose is to give the officer probable cause to make an arrest. The PBT result is generally not admissible as evidence of guilt at trial, though it can be used to establish probable cause for the arrest itself.
The Chemical Test. This is the evidentiary test administered after arrest, typically using the Intoxilyzer 9000 breath testing instrument at the police station, or a blood test in cases involving suspected drug impairment or when the breath test is unavailable. The chemical test result is admissible as evidence at trial and is the primary evidence of intoxication in most OWI prosecutions.
These two tests are governed by different statutes, carry different consequences for refusal, and play different roles in the OWI case. Treating them as the same test is one of the most common mistakes people make when trying to understand their rights during a traffic stop.
The Preliminary Breath Test: Can You Refuse?
Under MCL 257.625a, a person who is at least 21 years old and is stopped by a police officer who has reasonable cause to believe they have been operating a vehicle while intoxicated may be requested to submit to a preliminary breath test.
Legally, you can refuse a preliminary breath test in Michigan. Refusal is not a crime. However, refusal is not without consequences.
Civil infraction. Refusing a preliminary breath test is a civil infraction under Michigan law, not a criminal offense. It carries a fine but does not result in points on your driving record and does not carry the license suspension consequences that attach to refusing the post-arrest chemical test.
Probable cause from other evidence. Refusing the PBT does not prevent the officer from arresting you for OWI. If the officer has other evidence of intoxication, including the smell of alcohol, slurred speech, bloodshot eyes, erratic driving, or poor performance on field sobriety tests, that evidence alone can establish probable cause for an arrest without a PBT result.
The refusal can be noted. While the PBT result itself is generally not admissible at trial, the fact of a refusal may be noted in the officer's report and could potentially be relevant in subsequent proceedings.
For drivers under 21, Michigan's zero tolerance law applies. Under MCL 257.625a(2), a person under 21 who is requested to submit to a PBT and refuses commits a civil infraction with the same fine as an adult refusal.
The Post-Arrest Chemical Test: A Very Different Analysis
Once you have been arrested for OWI in Michigan, the legal framework governing breath testing changes significantly. At this point, Michigan's implied consent law under MCL 257.625c applies.
Under the implied consent law, any person who operates a vehicle on a Michigan road is deemed to have consented to a chemical test if they are lawfully arrested for OWI. This is not a voluntary consent. It is a legal fiction that attaches the moment you choose to drive on Michigan roads.
After a lawful arrest, an officer will read you Michigan's implied consent advisory, which informs you of your right to refuse the chemical test and the consequences of doing so. You then have the choice of whether to submit to the test.
If you submit to the chemical test, the result will be used as evidence against you in the criminal case. A result of .08 or higher supports an OWI charge. A result of .17 or higher supports the more serious High BAC charge with enhanced penalties.
If you refuse the chemical test, you face automatic civil consequences under the implied consent law, separate from and in addition to any criminal charges.
Consequences of Refusing the Post-Arrest Chemical Test
Refusing the post-arrest chemical test in Michigan triggers automatic consequences that are administered by the Secretary of State, independent of the criminal case. These consequences apply even if you are never convicted of OWI.
First refusal:
Six points added to your driving record
One-year driver's license suspension
Second refusal within seven years:
Six points added to your driving record
Two-year driver's license suspension
These consequences are imposed through an administrative process, not through the criminal court. You have the right to request a hearing before the Secretary of State to contest the implied consent suspension, but that request must be made within 14 days of the arrest. Missing that window waives your right to contest the suspension.
Does Refusing the Chemical Test Help Your Criminal Case?
This is the question most people are really asking when they wonder about refusing the breath test. The answer is: sometimes, but less often than people expect, and at a significant cost.
What refusal prevents. Refusing the chemical test prevents the prosecution from having a BAC number to use against you at trial. In cases where the BAC would have been significantly above the legal limit, the absence of that number can make the prosecution's case harder to prove.
What refusal does not prevent. Refusing the test does not prevent an OWI charge. The prosecution can still proceed based on the officer's observations, the field sobriety test results, and other evidence of impairment. And the refusal itself can be used as evidence at trial. Prosecutors often argue to juries that an innocent person would have had no reason to refuse.
The license suspension cost. A one-year license suspension is a significant consequence, particularly in Mid-Michigan where public transportation options are limited and a driver's license is essential for most people's daily lives. That cost has to be weighed against whatever evidentiary benefit the refusal might provide.
The broader case strategy. Whether refusing the chemical test is a strategically sound decision depends on the specific facts of the stop, the strength of the other evidence, and the assessment of an experienced OWI defense attorney. It is a decision that is almost never made with full information in the moment of arrest, which is one of the reasons the consequences of the choice can be so significant.
What to Do During a Traffic Stop If You Have Been Drinking
Understanding your rights before a traffic stop is more useful than trying to recall them during one. Here is a clear framework for what to do if you are pulled over and you have been drinking.
Be polite and cooperative with the stop itself. Provide your license, registration, and proof of insurance when asked. Do not argue with the officer, make sudden movements, or create conflict.
You are not required to answer questions about whether you have been drinking. You have the right to remain silent. You can politely decline to answer questions about your activities, how much you have had to drink, or where you are coming from. Simply say that you would like to speak with an attorney before answering questions.
You can decline field sobriety tests. Field sobriety tests are voluntary in Michigan. The tests themselves are difficult to pass even for sober people and their results are frequently used as evidence against the driver.
On the preliminary breath test, you can decline but understand the civil infraction consequence. Whether declining the PBT is strategically sound depends on the circumstances. If you have had very little to drink and believe you would pass, taking it may prevent an arrest. If you have had more, declining may make sense despite the civil infraction consequence.
If you are arrested, contact an attorney before making any decisions about the chemical test. You have the right to speak with an attorney before deciding whether to submit to the chemical test. Invoking that right clearly and promptly gives you the opportunity to make an informed decision rather than a panicked one.
Labor Day Weekend and OWI Enforcement in Michigan
Labor Day weekend is one of the highest OWI enforcement periods of the year in Michigan. Law enforcement agencies across Mid-Michigan increase patrols, and sobriety checkpoints are common on holiday weekends. The combination of increased alcohol consumption at social gatherings and increased law enforcement presence creates a significantly elevated risk of OWI encounters.
Knowing your rights before that encounter, rather than trying to recall them in the moment, puts you in a substantially better position. And if you or someone you know is charged with OWI this weekend, contacting an experienced criminal defense attorney immediately after arrest is the single most important step you can take.
We Defend OWI Charges Across Mid-Michigan
If you have been charged with OWI in Michigan, Triton Legal PLC can help. We represent clients in OWI defense matters across Bay, Midland, Saginaw, Tuscola, Arenac, Iosco, Gladwin, Clare, Ogemaw, and Roscommon Counties. We know how to evaluate the legality of a traffic stop, challenge field sobriety test administration, assess chemical test results, and pursue suppression motions when the evidence warrants it.
Call us at (989) 439-9600 or contact us online to schedule a confidential consultation.
This blog post is for general informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship with Triton Legal PLC. Every case is different. If you have questions about your specific situation, please contact a licensed Michigan attorney. Attorney advertising.