People v. Burton

• Decision Date: 04 September 1968
• Docket Number: No. 1,Docket No. 2431,1
• Citation: 163 N.W.2d 823,13 Mich.App. 203
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dallas Melvin BURTON, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 823

163 N.W.2d 823

13 Mich.App. 203

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dallas Melvin BURTON, Jr., Defendant-Appellant.

Docket No. 2431.

Court of Appeals of Michigan, Division No. 1.

Sept. 4, 1968

.Released for Publication Jan. 24, 1969.

James N. McNally, III, Detroit, for

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Richard J. Padzieski, Asst. Pros. Atty., Wayne County, Detroit, for plaintiff-appellee.

Before LESINSKI, C.J., and McGREGOR and LEVIN, JJ.

LESINSKI, Chief Judge.

Defendant appeals from his conviction and sentence for driving a motor vehicle while under the influence of intoxicating liquor, as a second offender. ¹

The defendant was arrested on October 30, 1965, and taken to the scientific bureau at Detroit police headquarters. Patrolman George Morton, the interviewing officer, advised defendant of his right to a blood alcohol test given by a person of his own choosing. ² Defendant gave the officer the name of a physician and requested that he be called to make a test. The doctor was out when the officer telephoned his clinic and residence. The officer told the doctor's wife that defendant wanted a blood test and she informed him that the doctor was expected home 'in 30 minutes to 1 hour.' The officer left his telephone number and extension and asked that the doctor return the call. To his knowledge, the doctor never called back.

The record shows that defendant, who had meanwhile been taken to the detention facility within police headquarters, was never told that the doctor had not called the officer. The record does not show whether the officer made the telephone call to the doctor's clinic or residence in the defendant's presence. Patrolman Morton testified as follows:

'Q. How long did you keep the defendant there waiting to see whether or not the doctor would return the call?

'A. I didn't keep him there for that purpose.

'Q. But anyway, how long did you wait before you sent him back?

'A. 'Sent him back?'

'Q. Well--wherever he was?

'A. He went up to the 9th floor right Away.

(Note: the detention facility is on the 9th floor of police headquarters.)

'Q. 'Right away?'

'A. Yes.

'Q. So he doesn't know whether the doctor called back or not?

'A. He doesn't--no, he doesn't.'

The defendant on appeal claims that he was denied his statutory right to take a test to determine the amount of alcohol in his blood. The people contend that none of his rights were violated since he failed to demand at test.

C.L.S.1961, § 257.625a, as amended by P.A.1964, No. 104 (Stat.Ann.1965 Cum.Supp. § 9.2325 (1)), gives defendant the right to demand one of the statutory chemical tests if facilities are reasonably available for its administration, ³ and, if he takes a test under police direction, a reasonable opportunity to have a person of his own choosing administer one of the tests within a reasonable time after his detention, if requested by defendant. People v. Alford (1967), 8 Mich.App. 211, 154 N.W.2d 48; People v. Kerrigan (1967), 8 Mich.App. 216, 154 N.W.2d 43.

There was no testimony at the trial that the police administered any of the statutory tests, or that defendant was advised of his right to refuse to take a test. ⁴ It is undisputed, however, that defendant was told he could have a blood alcohol test given by a person of his own choosing, and the police agreed to call his doctor. It is recognized that the intoxicating effect of alcohol diminishes with the passage of time; hence the probative value of a blood alcohol test diminishes as well. At the time defendant was taken to the lockup, he had acted to protect his right to a blood alcohol test. Defendant, waiting in the lockup for some word of his doctor, could hardly be expected to further demand his statutory rights.

There is respectable authority for the proposition that a person is deprived of due process of law when he is denied a reasonable opportunity, under the circumstances, to obtain a timely sample of blood at his own expense. See State v. Munsey (1956), 152 Me. 198, 127 A.2d 79; In re Newbern (1959), 175 Cal.App.2d 862, 1 Cal.Rptr. 80, 78 A.L.R.2d 901; In re Koehne (1960), 54 Cal.2d 757, 8 Cal.Rptr. 435, 356 P.2d 179; Annotation: 78 A.L.R.2d 905. To the same effect, see In re Martin (1962), 58 Cal.2d 509, 512, 24 Cal.Rptr. 833, 835, 374 P.2d 801, 803, in which the court declared:

'But in no event can duly constituted authority hamper or interfere with efforts on the part of an accused to obtain a sampling of his blood without denying to him due process of law. We are persuaded to such conclusion in any instance where the conduct of the authorities, whether through...