People v. Krulikowski, Docket No. 19604

Citation60 Mich.App. 28,230 N.W.2d 290
Decision Date25 March 1975
Docket NumberDocket No. 19604,No. 3,3
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tomasz E. KRULIKOWSKI, Jr., Defendant-Appellant
CourtCourt of Appeal of Michigan (US)

Wilson & Stone by James E. Wilson, Midland, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward J. Durance, Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and KAUFMAN and O'HARA, * JJ.

O'HARA, Judge.

This is an appeal of right from defendant's circuit court conviction of driving a motor vehicle under the influence of intoxicating liquor, third offense. 1 M.C.L.A. § 257.625; M.S.A. § 9.2325.

The defendant raises three assignments of error on appeal, only one of which is sufficiently meritorious to require decisional discussion in this opinion.

That issue pertains to whether the trial judge should have sustained defendant's objection as to the inadmissibility of Breathalyzer test results on the ground that there was no evidence that the particular instrument utilized in testing defendant was accurate. The argument is made that admissibility of any scientific test results is dependent on proof that the test was performed in a proper manner on a reliable instrument. Per Contra, in the case at bar it is claimed that the prosecution only introduced testimony that the Breathalyzer operator followed a 'checklist' of sorts without any foundational testimony as to what precisely was on that list. Hence, defendant concludes that the trial judge committed reversible error by admitting the Breathalyzer test results into evidence without a proper foundation as to the accuracy of the particular Breathalyzer instrument utilized in testing defendant's breath.

Needless to add, the people see the case as being cast in quite different terms than as postulated by defendant-appellant. Beginning with M.C.L.A. § 257.625a; M.S.A. § 9.2325(1), the prosecutor notes that that enactment has determined that the alcoholic content of a defendant's blood at the time a chemical test is administered may be admissible as evidence that the accused was intoxicated at the time of the involved offense. Nowhere does the statute declare that there must be foundational testimony as to the general acceptance of the Breathalyzer nor that the instrument was in fact accurate. Such objections, to the extent they are valid at all, are adequately dealt with by testimony that the certified Breathalyzer operator followed the operational checklist relative to use of the machine. Beyond that it's purely a question as to the weight and credibility which the trier of fact accords to testimony relative to the test results. So say the people in response to the objections of defendant.

The operator of the Breathalyzer, a member of the Midland County sheriff's department, was certified by the Michigan Department of Public Health as being qualified to administrator tests on the involved instrument. In his testimony the officer related that he had given defendant two Breathalyzer tests, pursuant to the standard checklist procedure for administering such tests. Defense counsel, at this point in the absence of the jury, argued against admitting into evidence the Breathalyzer test results, on the grounds that this testing procedure required expert testimony as to its validity, that there was no evidence that the particular Breathalyzer instrument utilized in testing defendant was in fact accurate, and that there was no expert testimony which related the concentration of alcohol in defendant's blood at the time of the Breathalyzer test back to the concentration of alcohol in his blood at the time of his arrest. After initially stating that he would take the matter under advisement the trial judge decided to let the evidence in and make a further determination later.

Following the resumption of testimony the officer related that the two Breathalyzer tests both indicated the presence of .22% By weight of alcohol in defendant's blood. Despite the witness's testimony that he had carefully followed the checklist procedures in administering the Breathalyzer tests, and despite his identification of the written test results, the trial judge acquiesced in defense counsel's objection and denied the admission of these documents. 2

It is the settled law in this state that expert testimony is not necessary to demonstrate that the Breathalyzer method of breath analysis is generally accepted as reliable by the scientific community. People v. Kozar, 54 Mich.App. 503, 221 N.W.2d 170 (1974). However, this in no way obviates the state's responsibility to introduce foundation evidence indicating that the specific Breathalyzer instrument used in a particular test was in fact accurate, i.e., was calibrated and/or maintained in such a manner as to render accurate and correct the results obtained by the use of that particular instrument.

In the recent case of People v. Kozar, Supra, ...

To continue reading

Request your trial
13 cases
  • People v. Lucas
    • United States
    • Court of Appeal of Michigan — District of US
    • April 16, 1991
    ...173 Mich.App. 101, 103, 433 N.W.2d 824 (1988); People v. Soltis, 104 Mich.App. 53, 55, 304 N.W.2d 811 (1981); People v. Krulikowski, 60 Mich.App. 28, 32-33, 230 N.W.2d 290 (1975). However, the trial court is afforded considerable discretion in deciding whether a proper foundation has been l......
  • People v. Harris
    • United States
    • Court of Appeal of Michigan — District of US
    • September 23, 1975
    ...to the discretion of the trial court and its determination as to this matter should not be lightly set aside. People v. Krulikowski, 60 Mich.App. 28, 230 N.W.2d 290 (1975), Champion v. Champion, 368 Mich. 84, 97, 117 N.W.2d 107, 109 Finally, defendant contends, in substance, that the use of......
  • People v. Wager
    • United States
    • Court of Appeal of Michigan — District of US
    • December 1, 1998
    ...that the test results accurately reflect the defendant's blood alcohol content at the time he was arrested. In People v. Krulikowski, 60 Mich.App. 28, 33, 230 N.W.2d 290 (1975), this Court stated that a failure to adduce evidence of the foundational requirements "precludes the admission of ......
  • People v. Wager
    • United States
    • Michigan Supreme Court
    • June 15, 1999
    ...under the influence of alcohol. The Kozar footnote (54 Mich.App. at 509, n. 2, 221 N.W.2d 170) was quoted in People v. Krulikowski, 60 Mich.App. 28, 32, 230 N.W.2d 290 (1975), where the Court of Appeals reversed a conviction on the ground that one of the "prerequisites" to admissibility had......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT