Most people I represent in drunk driving cases describe a version of the same evening. They were stopped on the shoulder of a road they had driven a thousand times. They were tired, frightened, and disoriented. When the officer asked them to submit to a blood draw, they agreed, not because they had thought it through, but because they could not see a way out. That practical, human moment is where every Fourth Amendment consent case begins, long before any judge or lawyer looks at it.
I think about that moment a great deal in light of the Michigan Court of Appeals' May 14, 2026 unpublished decision in People v Agliata, No. 375925, which affirmed a trial court's order denying suppression of a warrantless blood draw. I represented Ms. Agliata on appeal. With respect to the panel, I do not believe the decision can be squared with Michigan consent doctrine, and I think it is worth explaining why—both for clients trying to understand what happened to them and for lawyers and judges who will encounter similar facts in their own courtrooms.
The Facts the Body Camera Captured
On January 14, 2024, a Michigan State Police trooper stopped Ms. Agliata on suspicion of operating while intoxicated. Before any blood draw occurred, the trooper repeatedly told her that if she refused the chemical test she would be charged with a high court misdemeanor and could "actually go to jail for 2 years." He told her, "In Michigan, you have to take it." He told her he would "get [the] blood anyway." When she expressed reluctance, the trooper agreed to write the words "under duress" on the DI-177 advice-of-rights form, and only then did she nominally agree.
At the hospital, Ms. Agliata grew agitated, said she did not like needles, and asked again what would happen if she refused. The trooper responded, "No, you don't want to deal with that. It will be a two-year high court misdemeanor." The blood was drawn immediately afterward. Every one of these exchanges was preserved on the trooper's body camera.
Michigan does not criminalize chemical test refusal. That is the central fact of this case. Refusal carries administrative consequences under MCL 257.625c and the addition of six points to the driver record under MCL 257.625a(6)(b)(v). It does not carry a high court misdemeanor. It does not carry two years in prison. The trooper was wrong about the law, and he stated his version of the law forcefully, repeatedly, and at the most consequential moments of the encounter.
The Governing Framework
The legal architecture here is settled. Under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the 1963 Michigan Constitution, warrantless searches are presumptively unreasonable subject to a small number of well-delineated exceptions. People v Moorman, 331 Mich App 481, 485 (2020). Consent is one such exception, but only when it is "unequivocal, specific, and freely and intelligently given." People v Stricklin, 327 Mich App 592, 600 (2019). "Consent is not voluntary if it is the result of coercion or duress." People v Bolduc, 263 Mich App 430, 440 (2004).
The prosecution carries the burden. "To justify a warrantless search or seizure on the basis of consent, the prosecution must show by clear and positive evidence that the defendant consented to the search and seizure." People v Kaigler, 368 Mich 281, 294 (1962). And, as the Court of Appeals has repeatedly observed, the prosecutor "cannot satisfy this burden by simply showing the defendant's acquiescence to lawful authority." Stricklin, 327 Mich App at 599-600.
The voluntariness inquiry is a totality-of-the-circumstances inquiry. Schneckloth v Bustamonte, 412 US 218, 227 (1973). The purpose of that inquiry, as the United States Supreme Court has long explained, is to determine whether the defendant's free will "has been overborne and [the defendant's] capacity for self-determination critically impaired" by official coercion. Id. at 229.
The Court of Appeals Decision
The panel in Agliata did not dispute that the trooper misstated the law. It described his explanation as a "jumbled account of acts and penalties." It acknowledged that at the hospital the trooper "conflated the standards for PBTs and chemical tests, and he incorrectly told defendant that her refusal to submit to the chemical test would result in a two-year misdemeanor." Notwithstanding those concessions, the panel affirmed.
Two pillars supported the decision. First, the panel concluded that the trooper "correctly advised defendant of her rights regarding the chemical test three times" by reading verbatim from MCL 257.625a(6)(b). Second, the panel concluded that the hospital misstatement "occurred after defendant had already consented to the test and that she did not revoke that consent." The panel relied on Stricklin's observation that "[h]aving to make a choice between two undesirable options does not render defendant's express consent to the blood draw coerced and involuntary." Stricklin, 327 Mich App at 603. It emphasized that Ms. Agliata "rolled up her sleeve, presented her arm, and sat still for the blood draw."
Where I Believe the Analysis Falters
I want to engage with that reasoning carefully, because the panel's instincts are not unreasonable. Officers misspeak. Standard advisements are sometimes read alongside imperfect off-the-cuff commentary. A rule that suppressed every chemical test whenever an officer used a careless word would be unworkable. But the rule the panel adopted goes the other way. It treats a verbatim reading of the statutory rights as a kind of legal disinfectant that cleanses anything the officer says before or after. With respect, that is not what the Michigan consent doctrine requires.
The voluntariness inquiry is a totality inquiry, not a checklist. The question is not whether the officer ever read the correct warning. The question is whether, taking the encounter as a whole, the defendant's will was overborne. A driver who hears "in Michigan, you have to take it" and "you can actually do two years in jail" repeated through the encounter does not unhear those threats because the trooper later recites the statutory script. The statute itself, MCL 257.625a(6)(b)(iv), provides that if a person refuses, "a test must not be given without a court order." A driver who has been told the opposite cannot make an intelligent choice between the statutory options, because she has been told that one of those options does not exist.
That is the precise harm People v Hyde, 285 Mich App 428 (2009), addressed when this Court suppressed a chemical test after the officer provided incorrect implied consent warnings, even though the defendant had verbally consented. It is the same harm that animated the United States Supreme Court's observation in Bumper v North Carolina, 391 US 543 (1968), that submission to a claim of lawful authority is not consent. And it is consistent with this Court's holding in People v Chowdhury, 285 Mich App 509 (2009), that a warrantless PBT obtained without valid consent and outside any other exception violated the Fourth Amendment.
The panel's reliance on Stricklin deserves a closer look. In Stricklin, the defendant argued that his consent was coerced because he drove a truck for a living and feared losing his license. That fear was a fear of a real, lawful, statutory consequence. The "two undesirable options" he confronted were both legally accurate options. The opinion is properly read as rejecting the argument that lawful, accurately described administrative consequences are themselves coercive. It is not properly read to authorize officers to invent unlawful consequences and then receive the benefit of the same rule. The driver in Stricklin chose between two real choices. Ms. Agliata was offered a real choice and a fabricated one, and was told that the fabricated one would send her to prison for two years.
The Michigan Supreme Court has reminded us that, in this state, consent is not a peripheral concept. "Under the Michigan statute, consent is not only relevant but determinative of whether and to what extent the result of a test administered under the authority of the statute can be used." People v Keen, 396 Mich 573, 581 (1976). If consent is determinative, then the integrity of that consent must be guarded. Consent procured by a threat of imprisonment that the law does not authorize is not the consent the statute contemplates.
The "Cure" and the Hospital
The second pillar of the panel's decision—that the hospital misstatement came too late to matter—warrants its own scrutiny. The blood had not yet been drawn. Michigan law recognizes that a person who has given consent may withdraw it before the search is complete. People v Powell, 199 Mich App 492 (1993). When Ms. Agliata asked the trooper at the hospital what would happen if she did not submit, she was asking the consent question in real time, at the very moment the search was about to occur. The trooper's response—"No, you don't want to deal with that. It will be a two-year high court misdemeanor"—was a false legal threat delivered at the exact moment she still possessed the right to refuse and the right to revoke.
To say that the misstatement "occurred after defendant had already consented" is to treat a roadside notation as a kind of legally binding contract. The Fourth Amendment does not work that way. A person may give consent and then withdraw it. A person may also be deterred from withdrawing it by the same kind of misstatement that originally induced the consent. The body camera shows the second outcome here. The trooper's threat, repeated at the hospital, did the same work the roadside threat did. It eliminated the perceived option of refusal.
The Document That Spoke for Itself
One detail troubles me as much as anything in the record. The trooper himself wrote the words "under duress" on the DI-177 at Ms. Agliata's request. That notation is hard to reconcile with a free and voluntary choice. The mental state required for consent is not subtle. When the officer himself memorializes that the defendant is acting under duress, the totality-of-the-circumstances scale tips in a direction that, in my view, should be very difficult to overcome.
What Agliata Means for Practice
I do not write this article to relitigate the appeal. I write it because the unpublished decision will be read, and how it is read matters. As an unpublished opinion, Agliata is not binding precedent under MCR 7.215(C)(1), although it may be considered for its instructive or persuasive value. The risk is that Agliata will be read for a proposition broader than its facts: that a verbatim reading of MCL 257.625a(6)(b) inoculates a consent against any other coercive statement the officer makes during the encounter. That reading would be in tension with Hyde, Bolduc, Chowdhury, Bumper, and the totality-of-the-circumstances framework the Michigan Supreme Court and the United States Supreme Court have long required.
In my practice, I evaluate every implied consent case by reviewing the entire body camera, not just the moment the DI-177 is read. I look at what was said before, what was said during, and what was said after. I look at what was written on the form. I look at the timing of the blood draw. When I evaluate a case, I want to know whether the driver actually understood the choice that was being offered, or whether she was told, as Ms. Agliata was told, that one of the options was a prison term that does not exist in Michigan law.
A Final Thought
Consent doctrine works only if courts hold the prosecution to its burden. That burden, again, is "clear and positive evidence" of voluntariness. Kaigler, 368 Mich at 294. It is not satisfied by acquiescence. It is not satisfied by a driver who rolls up her sleeve after being told repeatedly that refusal will cost her two years of her life. I respect the panel that decided Agliata, and I understand the institutional pull toward affirmance on a clear-error standard for factual findings. But I think the record in this case asked a different question than the one the panel answered, and I think Michigan drivers, prosecutors, and trial courts are better served when the consent inquiry remains as searching as the Fourth Amendment demands. Each case turns on its own record, and every defendant is entitled to a careful, case-by-case review of what was said, when it was said, and what it meant to the person who heard it.
