People v. Borchard-Ruhland, Docket No. 112436, Calendar No. 19.

• Decision Date: 01 July 1999
• Docket Number: Docket No. 112436, Calendar No. 19.
• Citation: 460 Mich. 278,597 N.W.2d 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ann Charlotte BORCHARD-RUHLAND, Defendant-Appellee.
• Court: Michigan Supreme Court

597 N.W.2d 1

460 Mich. 278

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ann Charlotte BORCHARD-RUHLAND, Defendant-Appellee.

Docket No. 112436, Calendar No. 19.

Supreme Court of Michigan.

Argued April 8, 1999.

Decided July 1, 1999.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Joseph K. Sheeran, Prosecuting Attorney, and Timothy J. Kelly, Assistant Prosecuting Attorney, Bay City, for the people.

Smith, Bovill, Fisher, Meyer & Borchard, P.C. (by James F. Troester and James T. Borchard), Saginaw, for defendant-appellee.

Elwood Brown, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, amici curiae, for Prosecuting Attorneys Association of Michigan.

Opinion

YOUNG, J.

We granted leave in this case to determine whether defendant's blood alcohol test results were properly suppressed where the police did not attempt to comply with the requirements of the implied consent statute, M.C.L. § 257.625c; MSA 9.2325(3). Because the clear language of the implied consent statute requires an arrest as a triggering event, we hold that its provisions do not apply to defendant. Rather, the validity of defendant's consent to chemical testing is evaluated under the standards of U.S. Const., Am. IV, and Const. 1963, art. 1, § 11. The decision of the Court of Appeals is reversed, and the case remanded to the district court for further proceedings.

I. Factual Background and Proceedings

On October 10, 1995, defendant was involved in a two-car collision. Michigan State Police Trooper William Tyrrell was sent to the scene to investigate. Tyrrell spoke to defendant for approximately five to ten minutes. The trooper testified that defendant had facial injuries and "seemed really lightheaded, pale" and "not really completely coherent." In response to the trooper's inquiries, defendant indicated that she had been drinking. Because Trooper Tyrrell was concerned about possible head injuries, he did not request that defendant submit to a Breathalyzer test at the scene. While Tyrrell continued his investigation of the accident scene, defendant and the two passengers in the other vehicle were transported to the hospital.¹

After Tyrrell completed his investigation, he went to the hospital. The hospital staff allowed Tyrrell to speak to defendant. Tyrrell testified that defendant was lying down when he approached her and described her demeanor as "very polite and courteous." In response to his request for a blood sample, defendant replied "Sure. Fine. No problem." Tyrrell testified that he did not inform defendant of her chemical test rights under the implied consent statute because she was not under arrest at the time the blood sample was taken.²

Pursuant to Trooper Tyrrell's request, an emergency room nurse withdrew defendant's blood and placed it in a Michigan State Police evidence collection kit provided by Tyrrell. The nurse testified that defendant smelled of alcohol and admitted that she had been drinking. The nurse also testified that defendant was cooperative and consented to the blood test. After being treated for her injuries, defendant was discharged from the emergency room and went home.

The blood sample was mailed to the Michigan State Police Laboratory. The blood sample, drawn approximately two and one half hours after the accident, revealed a blood alcohol level of 0.14 percent. Defendant was arrested on October 19, 1995, and charged with two counts of OUIL causing serious impairment of a bodily function, M.C.L. § 257.625(5); MSA 9.2325(5).

At the preliminary examination, defendant moved to suppress the blood alcohol test results. Defendant claimed suppression was required because she had not been "advised of her chemical rights as required by M.C.L. § 257.625a(6)(b) [MSA 9.2325(1)(6)(b) ]...." Defendant also argued that the results should be suppressed because she was not under arrest at the time she consented, and a "prior valid arrest is mandatory" before a motorist may "legally consent to blood alcohol testing...." Defendant did not argue that her consent was involuntary under the constitutional standard. The district court granted the motion to suppress under the statute. The circuit court denied the plaintiff's application for leave to appeal.

The Court of Appeals affirmed the suppression of the blood alcohol evidence. 230 Mich.App. 166, 583 N.W.2d 247 (1998). Citing McNitt v. Citco Drilling Co., 397 Mich. 384, 245 N.W.2d 18 (1976), and People v. Weaver, 74 Mich.App. 53, 253 N.W.2d 359 (1977), the Court held that blood alcohol testing is presumptively performed pursuant to the implied consent statute in the absence of an express disclaimer by the police made to both the defendant and the medical personnel administering the test that the request for testing was not pursuant to the statute. Because no express disclaimer was given in this case, and because the blood was not obtained in conformity with the statute, the Court held that suppression was required. We granted leave to appeal. 459 Mich. 923, — N.W.2d —(1998).

II. Analysis

The implied consent statute, M.C.L. § 257.625c; MSA 9.2325(3), provides that

[a] person who operates a vehicle upon a public highway ... within this state is considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance or both in his or her blood or urine or the amount of alcohol in his or her breath in all of the following circumstances:

(a) If the person is arrested for a violation of section 625(1), (3), (4), (5), or (6), section 625a(5), or section 625m....

(b) If the person is arrested for felonious driving, negligent homicide, manslaughter, or murder resulting from the operation of a motor vehicle, and the peace officer had reasonable grounds to believe the person was operating the vehicle while impaired by or under the influence of intoxicating liquor or a controlled substance or a combination of intoxicating liquor and a controlled substance, or while having an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or if the person is less than 21 years of age while having any bodily alcohol content.

* * *

(3) The tests shall be administered as provided in section 625a(6).

When a chemical test is "administered as provided in section 625a(6)," the person subject to chemical testing is advised of certain rights and benefits as found in M.C.L. § 257.625a(6)(b); MSA 9.2325(1)(6), which provides:

(b) A person arrested for a crime described in section 625c(1) shall be advised of all of the following:

(i) If he or she takes a chemical test of his or her blood, urine, or breath administered at the request of a peace officer, he or she has the right to demand that a person of his or her own choosing administer 1 of the chemical tests.

(ii) The results of the test are admissible in a judicial proceeding as provided under this act and will be considered with other admissible evidence in determining the defendant's innocence or guilt.

(iii) He or she is responsible for obtaining a chemical analysis of a test sample obtained pursuant to his or her own request.

(iv) If he or she refuses the request of a peace officer to take a test described in subparagraph (i), a test shall not be given without a court order, but the peace officer may seek to obtain such a court order.

(v) Refusing a peace officer's request to take a test described in subparagraph (i) will result in the suspension of his or her operator's or chauffeur's license and vehicle group designation or operating privilege and in the addition of 6 points to his or her driver record.

The rules of statutory construction are well established. The fundamental task of statutory construction is to discover and give effect to the intent of the Legislature. The task of discerning our Legislature's intent begins by examining the language of the statute itself. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135, 545 N.W.2d 642 (1996). Where the language of the statute is unambiguous, the plain meaning reflects the Legislature's intent and this Court applies the statute as written. Judicial construction under such circumstances is not permitted. Id. Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to determine legislative intent. Luttrell v. Dep't of Corrections, 421 Mich. 93, 365 N.W.2d 74 (1984). When construing a statute, the court must presume that every word has some meaning and should avoid any construction that would render any part of the statute surplusage or nugatory. Altman v. Meridian Twp., 439 Mich. 623, 635, 487 N.W.2d 155 (1992). If possible, effect should be given to each provision. Gebhardt v. O'Rourke, 444 Mich. 535, 542, 510 N.W.2d 900 (1994).

Following these principles of statutory construction, we conclude that the plain language of M.C.L. § 257.625c; MSA 9.2325(3), and M.C.L. § 257.625a(6)(b); MSA 9.2325(1)(6)(b), evinces a legislative intent that only those persons who have been arrested fall within the purview of the implied consent statute. The statute plainly requires arrest as an actuating event before a police officer is obligated to inform a person of his or her rights under the statute. Because the implied consent statute does not control the admissibility of blood alcohol evidence when a defendant is not under arrest,³ Trooper Tyrrell did not err in failing to advise defendant of her rights under the statute.

Notwithstanding the plain language of the statute to the contrary, and in furtherance of the claim that the implied consent statute is applicable even when a defendant is not under arrest, defendant cites McNitt, supra, for the proposition that all chemical testing is done pursuant to the statute unless the police expressly disclaim reliance on...