McNitt v. Citco Drilling Co.
| Decision Date | 26 August 1976 |
| Docket Number | Nos. 1,M,2,s. 1 |
| Citation | 245 N.W.2d 18,397 Mich. 384 |
| Parties | William Eugene McNITT, Administrator of the Estate of Terry E. McNitt, Deceased, Plaintiff-Appellee, v. CITCO DRILLING COMPANY, a corporation, and Jeffrey M. Leseth, Defendants-Appellants. Thomas M. GILBERT, Administrator of the Estate of Frank R. Gilbert, Deceased, Plaintiff-Appellant, v. Kenneth G. LEACH and Russell L. Leach, Defendants-Appellees. |
| Court | Michigan Supreme Court |
Cholette, Perkins & Buchanan, Grand Rapids (Edward D. Wells, Grand Rapids, of counsel), for defendants-appellants.
Korn & Burns, P.C., Robert A. Burns, Cadillac, for plaintiff-appellee.
Patrick & Hackett, P.C., by Peter Patrick, Cheboygan, for plaintiff-appellant.
Collison & Fordney, P.C., Saginaw, for defendants-appellees.
In People v. Keen, 396 Mich. 573, 575, 242 N.W.2d 405, 407 (1976), we held that 'where a blood alcohol test is administered pursuant to the statute the test result is not admissible in a criminal prosecution other than for driving while under the influence of intoxicating liquor (DUIL) or for driving while ability to operate a vehicle was impaired due to the consumption of intoxicating liquor (DI).'
The common issue in these appeals concerns the admissibility of the result of a blood alcohol test in civil litigation, specifically actions for wrongful death commenced by the administrator of the estate of the allegedly drunken driver in McNitt and against the allegedly drunken driver in Gilbert.
We hold the results of tests administered pursuant to the statute cannot be used in civil litigation. 1
As in Keen, we see no need to decide this case on constitutional grounds because '(e)ven if we were to conclude, on reconsideration of Lebel (v. Swincicki, 354 Mich. 427, 93 N.W.2d 281 (1958)), that the drawing of blood from an apparently drunken driver does not violate his rights under the Michigan Constitution, the statute limits the authority of police officers to request the taking of blood and limits the use that may be made of a test result obtained pursuant to exercise of that authority.' People v. Keen, supra at 576--577, 242 N.W.2d at 407. 2
The Michigan Vehicle Code makes admissible in DUIL prosecutions the result of a blood alcohol test. 3
It is further provided that a person who operates a motor vehicle 'is deemed to have given consent' to a blood alcohol test if he is 'arrested while driving under the influence of intoxicating liquor or while his ability to operate a vehicle has been impaired due to the consumption of intoxicating liquor.' 4
It is also provided, however, that '(a) person under arrest shall be advised of his right to refuse to submit to chemical tests; and if he refuses the request of a law enforcement officer to submit to chemical tests, no test shall be given.' 5 If the driver refuses to take a test, the Secretary of State may suspend, revoke or deny issuance of a driving license. 6
In Keen, this Court said:
7
In McNitt, the driver, who was unconscious, did not consent.
In Gilbert, the trial judge found, after an evidentiary hearing, that the driver did not consent.
While the relevant provisions of the Michigan Vehicle Code are sometimes called the 'implied consent law' and it is provided that a person who operates a motor vehicle 'is deemed to have given consent' to a blood alcohol test, it is also provided that 'no test shall be given' to a person who refuses to consent. As the trial judge in McNitt declared, under the statute the issue 'is not to be viewed in the ordinary search and seizure context, but solely in terms of consent.'
The contention of the defendant in McNitt that statutory authority is not needed to authorize the administration of blood alcohol tests or to make test results admissible in evidence elides the fact that but for the statute the tests probably would not have been administered by the hospital personnel.
In both Gilbert 8 and McNitt the blood sample was taken at the request of a police officer to determine alcohol content and not for diagnostic purposes.
There is no suggestion that the hospitals would have allowed their personnel to draw blood for determination of alcohol content without a 'request of a police officer' or that they would have allowed this to be done if they did not have the resulting statutory protection from civil and criminal liability. 9
In administering the tests, the hospital personnel appear to have acted on the requests of police officers pursuant to the statute.
It has not been established that, as claimed by the defendant in McNitt, the officer, in requesting that a test be administered, was exercising an asserted commonlaw right to cause a blood alcohol test to be administered.
We do not preclude a showing at trial that the officer in requesting that the hospital personnel administer a test made known to them that he was not making the request pursuant to the statute so that they would be aware that if they administered the test they could not claim the statutory protection from civil and criminal liability. Upon such a showing the question whether the statute occupies the field and supersedes the asserted common-law right would be properly presented and require resolution; absent such a showing, we intimate no opinion on the question.
In People v. Keen, supra, holding that a blood alcohol test result was not admissible in a prosecution for manslaughter, this Court said:
'In the context of an arrest for 'driving a vehicle while under the influence of intoxicating liquor', advice that results of a consensual test will be used to determine the innocence or guilt of the driver means innocence or guilt of the offense for which the driver was arrested.'
If the drivers in McNitt and Gilbert had been told, as the driver in Keen was told, that blood alcohol test results might be admitted in a DUIL prosecution and had, as contended by Gilbert, consented to the administration of such tests, the results could not, for essentially the reason stated in People v. Keen, have been used against them in civil litigation. The test result would have been obtained on a representation of limited use made by a police officer acting pursuant to a statute providing for limited use. That limitation encourages drivers to consent to the test and assists in the prosecution of those who drive under the influence of intoxicating liquor or while their ability to drive is impaired due to intoxication.
It would be anomalous to construe the statute to allow a broader use of the results of tests taken under the authority of the statute but not in conformity with its terms than of test results obtained in conformity with statutory requirements.
Test results obtained pursuant to the exercise of statutory authority are not admissible unless obtained in conformity with the requirements of the statute. 10
The statute provides that a person under arrest 'shall be advised of his right to refuse' a test and 'if he refuses' the request 'no test shall be given'. In Gilbert the judge found that the request of the officer was refused. McNitt's state of unconsciousness precluded a request in conformity with the requirements of the statute. The tenor of this statute giving drivers the right to refuse to submit to a test is that 'no test shall be given' unless the driver submits to a test.
The meaning of the statutory edict, 'no test shall be given', is that the driver has a choice whether to submit to a test; 11 if he does not submit, this evidence of his condition shall not be extracted from him. If, as has been here contended, there is a right to use test results in civil litigation even if the driver does not submit because the test was nevertheless administered, then--the statute to the contrary--the driver has no choice.
In precluding the use of test results obtained under color of statutory authority but in violation of the terms of the statute, we protect the driver's statutory choice.
We also observe that the language of the statute, 'in determining the innocence or guilt of the defendant', 12 is not the language of civil litigation.
A different question might be presented if the test had not been requested by a police officer, but had been administered by hospital personnel for diagnostic purposes.
The test results are not admissible in Gilbert 13 or McNitt 14 but this does not preclude a showing at trial that the officer eschewed his statutory authority.
We appreciate that drunk drivers are a menace and that strict enforcement of drunk driving laws is in the public interest. The Legislature has, however, limited the authority of police officers to request hospital personnel to withdraw blood or otherwise test for blood alcohol content without consent and has limited the use that may be made of blood alcohol test results obtained pursuant to exercise of that authority.
The Court of Appeals is affirmed. The cases are remanded to the trial courts for trial.
These cases concern the exclusion of evidence of blood alcohol levels in civil cases. McNitt v. Citco Drilling Co. involves an allegedly intoxicated plaint...
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Swickard v. Wayne County Medical Examiner
...or statutory construction which were raised in Lebel v. Swincicki, [354 Mich. 427, 93 N.W.2d 281 (1958) ] and McNitt v Citco Drilling Co, 397 Mich 384; 245 NW2d 18 (1976). Both of those cases dealt with extraction of a blood sample from a person still alive. Indeed, in Lebel, it is noted th......
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...excluding evidence obtained in violation of a statute is not a new phenomenon under Michigan law. See McNitt v. Citco Drilling Co., 397 Mich. 384, 393, 245 N.W.2d 18 (1976), People v. Dixon, 392 Mich. 691, 222 N.W.2d 749 (1974), and People v. Weaver, 74 Mich.App. 53, 253 N.W.2d 359 (1977). ......
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