People v. Burdo, Docket No. 17898

• Decision Date: 08 October 1974
• Docket Number: No. 1,Docket No. 17898,1
• Citation: 56 Mich.App. 48,223 N.W.2d 358
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ronald A. BURDO, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 358

223 N.W.2d 358

56 Mich.App. 48

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ronald A. BURDO, Defendant-Appellee.

Docket No. 17898.

Court of Appeals of Michigan, Division No. 1.

Oct. 8, 1974.

Released for Publication Nov. 21, 1974.

Russell W. Schmidt, City Atty., Wayne, for plaintiff-appellant.

James L. Steffen, Tinkham, Snyder, MacDonald & Wilder, Wayne, for defendant-appellee.

Before BRONSON, P.J., and QUINN and VanVALKENBURG,* JJ.

VanVALKENBURG, Judge.

The factual basis of this appeal is not in dispute. On April 20, 1971, at approximately 12:15 a.m., defendant Burdo's automobile ran into the rear of the automobile operated by one Glen Tapis as that automobile was stopped for a red light at the intersection of Sims Street and Wayne Road in the City of Wayne. The police were summoned and about five minutes later a City of Wayne patrolman arrived to take the accident report. The officer observed defendant at the scene and asked him if he had been driving the vehicle to which the officer received an affirmative reply. The officer observed that defendant was unsteady on his feet, his speech was slurred and his breath smelled of intoxicants. After taking the accident report, the officer announced that defendant was under arrest for driving under the influence of intoxicating liquors.

Defendant was then taken to the police station, which was located some 150 feet from the scene of the accident. At the station defendant was given the statutorily required warning of his rights with respect to the taking of a Breathalyzer test, after which defendant indicated that he would take the Breathalyzer test. The test resulted in a reading of .24%.

Prior to trial in the district court defense counsel moved to suppress the Breathalyzer results on the ground that the officer's arrest of defendant for a misdemeanor not committed in his presence and without a warrant was illegal. Counsel argued that since the arrest was illegal the Breathalyzer results must be excluded. The motion was denied by the district court judge. At the trial Mr. Tapis identified defendant as the driver of the automobile that struck him. Both Tapis and the officer testified that defendant appeared to be intoxicated. The officer who administered the Breathalyzer test testified as to the results, over the objection of defense counsel. The jury thereafter returned a verdict of guilty of driving under the influence of an intoxicating liquor. Defendant's motion for a new trial was denied by the district court.

Defendant appealed to Wayne Circuit Court alleging error in the admission of the Breathalyzer results. The circuit court judge reversed defendant's conviction, concluding that the arrest was unlawful and that the evidence should have been suppressed. From that opinion and order of the circuit court, the people appeal on leave granted.

Defendant argued before the district court judge and the circuit court judge, and now argues before this Court, that since the arrest was illegal, the Breathalyzer test results must be suppressed because of the per se exclusionary rule. Plaintiff argues that a police officer may arrest for the misdemeanor of driving under the influence of intoxicating liquors, even in the absence of a warrant, where the officer has probable cause to believe that defendant was driving while under the influence of intoxicating liquors.

Defendant is clearly correct in his assertion that his arrest for the misdemeanor of driving under the influence of intoxicating liquors was illegal, where, as here, the arresting officer did not observe the defendant driving the automobile. The Michigan Legislature has clearly ordained that a peace officer may arrest without a warrant for a misdemeanor only when the misdemeanor is committed in his presence. M.C.L.A. § 764.15(a); M.S.A. § 28.874(a). Since the offense charged herein was not committed in the presence of the officer, the officer's arrest exceeded his statutory power to arrest and was thus unlawful.

While granting that defendant's arrest was unlawful in that it exceeded the officer's statutory power to arrest, it does not necessarily follow, as defendant argues, that the per se exclusionary rule mandates that the results of the subsequent Breathalyzer test be suppressed. The per se exclusionary rule as enunciated by the United States Supreme Court in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and made applicable to the states in Mapp v. Ohio, 367...