People v. Cords

• Decision Date: 03 May 1977
• Docket Number: Docket No. 27996
• Citation: 254 N.W.2d 911,75 Mich.App. 415
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward William CORDS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 911

254 N.W.2d 911

75 Mich.App. 415

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward William CORDS, Defendant-Appellant.

Docket No. 27996.

Court of Appeals of Michigan.

May 3, 1977.

Released for Publication June 28, 1977.

McClear & McClernan by David E. McClernan, Owosso, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Gerald D. Lostracco, Pros. Atty., Daniel J. Loomis, Asst. Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P. J., and V. J. BRENNAN and BRONSON, JJ.

V. J. BRENNAN, Judge.

Defendant Edward William Cords was charged with involuntary manslaughter, contrary to M.C.L.A. § 750.321; M.S.A. § 28.553. He was tried by a Shiawassee Circuit Court jury and convicted on January 29, 1976. On February 23, 1976, defendant was sentenced to a prison term of from 5 to 15 years, with appropriate credit given for time already served. Defendant appeals, as of right, requesting that this Court reverse his conviction.

This cause arose out of an automobile accident occurring on the night of August 16, 1975, on Lansing Road in Perry, Michigan. The lower court record reflects that defendant, while driving alone from a party, crossed over into the wrong lane and collided head-on with another vehicle driven by a 15-year-old boy, Darwin Dansby. Dansby was fatally injured. Shortly afterward, a Shiawassee County Sheriff's Deputy arrived at the scene of the accident. At that time, he discovered that Dansby had been killed and the defendant was injured and required medical treatment. Upon further examination of the scene, the Sheriff discovered a partially open can of beer near the front of the automobile's passenger side, spilled beer on the front floor of defendant's automobile, and the strong smell of alcohol on defendant's breath.

About 4:00 a. m. that same morning the deputy, based upon the information obtained at the scene of the crime, sought a search warrant permitting him to obtain a blood sample from defendant for a blood-alcohol contents test. The search warrant was authorized by a Shiawassee County Assistant Prosecuting Attorney, and the warrant was issued by 66th District Court Judge Raymond Basso. The warrant was served upon the attending physician at Sparrow Hospital, where the injured defendant had been taken. At the doctor's direction, a registered nurse then took a sample of defendant's blood. The blood sample was transferred to the Michigan State Department of Public Health, where an analysis was performed.

Prior to defendant's preliminary examination, counsel moved to have any reference to the blood-alcohol test results suppressed. In support of this motion, defendant alleged that the tests were not admissible since they were not relevant to the offense for which defendant was charged. He also argued that the blood sample had been taken in violation of his constitutional rights against self-incrimination, right to counsel, and right to due process of law. He contended further that the test results and the presumptions drawn from them were admissible only in cases where the charges were driving under the influence of intoxicating liquor (hereafter DUIL) or driving while ability to operate a vehicle was impaired due to the consumption of intoxicating liquor (hereafter DI). See M.C.L.A. § 257.625a(1); M.S.A. § 9.2325(1)(1). At the commencement of defendant's preliminary examination, the court entertained counsel's arguments on this motion. In denying defendant's motion, the court found that the defendant's blood specimen had been lawfully secured, and therefore the blood analysis results could be introduced into evidence.

Subsequently, defense counsel filed a number of other motions to suppress this evidence on similar grounds. These motions were once again denied by the judge on January 22, 1976. During defendant's trial, defense counsel again attempted to have such evidence suppressed or precluded from admission. All such motions and objections to the admission of such evidence were denied. After this evidence had been admitted at trial and the prosecution had rested its case, the defense moved for a mistrial on the grounds that the defendant had not been advised at the time the sample had been taken that he was entitled to have a person of his own choosing perform an additional blood-alcohol test on the sample. M.C.L.A. § 257.625a(3); M.S.A. § 9.2325(1)(3). This motion was also denied by the trial court.

On appeal, defendant brings three allegations of error. We will discuss them in order.

Defendant argues first that the trial court committed reversible error by denying a pretrial motion to suppress the results of the blood-alcohol content test.

The initial issue we face is whether two recent Michigan Supreme Court decisions preclude the admission of blood-alcohol test results performed on a specimen of a defendant's blood at defendant's trial for manslaughter where such samples had been taken from the defendant without his consent but pursuant to a validly issued search warrant. People v. Keen, 396 Mich. 573 242 N.W.2d 405 (1976); McNitt v. Citco Drilling Co., 397 Mich. 384, 245 N.W.2d 18 (1976).

In Keen, the Court ruled that when blood alcohol test results had been obtained pursuant to the "implied consent" statute, M.C.L.A. § 257.625a(1), those results would only be admissible in the statutorily specified prosecutions for DUIL or DI. The Court therefore found reversible error where such test results were admitted in a prosecution for manslaughter. People v. Keen, supra, 396 Mich. at 585-586, 242 N.W.2d 405.

Likewise, in McNitt, the Court held in a wrongful death action that results of blood-alcohol tests obtained pursuant to the exercise of statutory authority were inadmissible in that civil litigation where proper statutory procedure was not followed by police. McNitt v. Citco Drilling Co., supra, 397 Mich. at 393-394, 245 N.W.2d 18.

However, while we recognize on the basis of Keen and McNitt that blood-alcohol content test results obtained pursuant to the statute are admissible only in DUIL and DI prosecutions, and not at all if statutory procedures are not explicitly followed, we also believe the test results in this case, though taken without defendant's consent, were not obtained "pursuant to the statute". See People v. Weaver, 74 Mich.App. 53, 253 N.W.2d 359 (1977).

What makes the present case totally different from Keen, McNitt or Weaver is the presence here of a validly issued search warrant. By obtaining this warrant prior to extracting blood from defendant, authorities removed the issue of consent from this case and therefore removed any question of admissibility from the "implied consent" statute. Because of the warrant, we perceive no possible reliance by hospital personnel on the protections of the statute, no triggering of presumptions under the statute and no need to observe specified statutory procedures. People v. Weaver, supra, McNitt v. Citco Drilling Co., supra. In short, the "implied consent" statute was simply not a factor in obtaining the blood sample and test results and consequently does not act to limit the evidentiary use to which these test results may be put.

However, determining this fact only means that Keen and McNitt will not preclude admission of test results. Still, admitting the results of the blood tests must be shown to be consistent with Federal and state constitutional principles. At the outset, we note one Michigan decision which has found similar blood-alcohol tests inadmissible under article 2, sec. 10, of the Michigan Constitution of 1908 (now Const.1963, art. 1, § 11). Lebel v. Swincicki, 354 Mich. 427, 93 N.W.2d 281 (1958).

In Lebel, blood was taken from an unconscious defendant following an automobile accident and offered as evidence against him in a subsequent wrongful death action. The Michigan Supreme Court found the blood test results inadmissible as a violation of defendant's "right of security of person" under the Michigan Constitution.

However, we observe the Court relied in its reasoning on certain Federal decisions which did not provide clear cause for exclusion even at this time. See Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957) (where the Supreme Court, though noting probable exclusion in Federal courts on Fourth Amendment grounds, upheld admission of a blood-alcohol test in a New Mexico state manslaughter prosecution). See also, Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).

Furthermore, we find that the complexion of Federal law changed considerably shortly after Lebel. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In Schmerber the Supreme Court found that even where no warrant was obtained, the blood test results were not inadmissible under the Fourth Amendment. This decision technically is not binding on a Michigan decision such as Lebel which finds exclusion of blood test results necessary under the Michigan Constitution. We realize the measure for such admissibility under our Constitution may be stricter than the Federal standard.

Nonetheless, we find that such fundamental change in position by the United States Supreme Court when clearly a major factor of reliance by our Supreme Court in Lebel should reasonably signal proper basis for re-evaluation of that decision. People v. Keen, supra, 396 Mich. at 576, 242 N.W.2d 405, McNitt v. Citco Drilling Co., supra, 397 Mich. at 388, 395-397, 245 N.W.2d 18. ¹ We find Schmerber both persuasive and applicable in a situation where finding the implied consent statute not to be controlling forces us to test admissibility by constitutional standards. We also note importantly that securing a proper search warrant in this case makes the argument not to exclude under the Michigan Constitution even stronger than simply relying on Schmerber alone. In short, we believe the admission of blood alcohol content test results should...