People v. Dewey

• Decision Date: 23 November 1988
• Docket Number: Docket No. 100576
• Citation: 431 N.W.2d 517,172 Mich.App. 367
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold Frederick DEWEY, Defendant-Appellant. 172 Mich.App. 367, 431 N.W.2d 517
• Court: Court of Appeal of Michigan — District of US

Page 517

431 N.W.2d 517

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold Frederick DEWEY, Defendant-Appellant.

Docket No. 100576.

172 Mich.App. 367, 431 N.W.2d 517

Court of Appeals of Michigan.

Submitted Dec. 8, 1987.

Decided Oct. 17, 1988.

Released for Publication Nov. 23, 1988.

[172 MICHAPP 368] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Judy H. Hughes, Pros. Atty., and Marilyn S. Meyer, Asst. Pros. Atty., for the People.

A. Ray Kalliel and David Schoolenberg, Grand Rapids, for defendant-appellant.

Before MAHER, P.J., and GRIBBS and SIMMONS, ^* JJ.

GRIBBS, Judge.

Defendant appeals by leave granted from the circuit court's order affirming the district court's denial of his motion to quash and dismiss the charge of operating a motor vehicle while under the influence of liquor (OUIL), M.C.L. Sec. 257.625(1); M.S.A. Sec. 9.2325(1), brought against him. We affirm.

[172 MICHAPP 369] On May 15, 1985, defendant's vehicle was stopped by Michigan State Trooper Robert Norris. After defendant refused to perform certain field sobriety tests, Norris arrested defendant for OUIL. Defendant was transported to the Barry County Jail and advised of his chemical test rights. Specifically, defendant was read the following standard form:

"After taking a chemical test administered at the request of a peace officer, you have a right to demand that a person of your own choosing administer a breath, blood or urine test. You are responsible for obtaining a chemical analysis of a test sample taken by a person of your own choosing." (Emphasis added.)

Defendant was asked to take a Breathalyzer test. He consented to take the test after consulting an attorney by telephone. Defendant also requested an independent blood test and he testified that it was his understanding that he could have the blood test regardless of whether he took the Breathalyzer test.

Breathalyzer operator Michael Lesick made four attempts to administer the Breathalyzer test to defendant, but a proper breath sample could not be obtained and defendant was told that his conduct constituted "a nonverbal refusal because he did not perform the test as directed." Defendant testified that he was then informed by the arresting officer that he was denied a blood test. Defendant was allowed to call his attorney again and the attorney testified that defendant said the police were not going to allow him a blood test. Officer Lesick testified that if it were up to him he would not have allowed defendant the opportunity for a blood test. Trooper Norris said that if Lesick had not determined that defendant had refused [172 MICHAPP 370] the breathalyzer test, he would have afforded defendant an opportunity for a blood test. While Norris' testimony was somewhat contradictory and he could not "remember the specifics" or recall "the details," Norris stated that he would have allowed defendant to make arrangements to have a doctor come down to the jail in spite of the fact that defendant did not take the Breathalyzer test although there is no testimony that Norris informed defendant of this.

Defendant contends that the state violated his due process rights by denying him a reasonable opportunity to obtain a timely test of his blood-alcohol level. Defendant cites a number of cases in his brief that center on the issue of reasonable opportunity to obtain a chemical sobriety test. The facts of this case do not support a finding that defendant was denied a reasonable opportunity, since he had access to a telephone and, indeed, telephoned his attorney twice.

Defendant also asserts that imposition of the requirement that defendant submit to a police-requested blood-alcohol test, as a condition precedent to obtaining his own test, placed a material obstacle to obtaining exculpatory evidence in his path in contravention of his constitutional right to due process of law. We disagree.

Both the federal and state constitutions, U.S. Const., Am. XIV; Const. 1963, art. 1, Sec. 17, guarantee an individual the right to due process of law. Criminal prosecutions must comport with the prevailing notions of fundamental fairness. California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). This standard of fairness requires that a defendant be afforded a meaningful opportunity to present a complete defense. Id. at 485, 104 S.Ct. at 2532. To protect this right, an "area of constitutionally guaranteed access to evidence" has emerged [172 MICHAPP 371] from the United States Supreme Court. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982).

The Michigan courts have not decided whether submission to a police-requested test, as a prerequisite to obtaining one's own blood-alcohol test, is a deprivation of the accused's constitutional rights. At least one other jurisdiction has, however, opined on this question and we find its decision instructive.

In State v. Zoss, 360 N.W.2d 523 (S.D., 1985), the South Dakota Supreme Court ruled that it was not a denial of the defendant's due process rights to deny the defendant's request for a blood test after the defendant refused the requested Breathalyzer test. The court held that there was nothing fundamentally unfair in this procedure and that it did not deny the defendant a meaningful opportunity to present a complete defense since the state did not withhold any exculpatory evidence.

"There was no assurance the blood test would be exculpatory. It may have been to the contrary. The same may be said of the requested breath test. If she had wanted possible exculpatory evidence, she could have consented to the breath test which may have been exculpatory and still had a chance of getting a possible exculpatory blood test. There is nothing...