People v. Jacobsen, Docket No. 99797
| Decision Date | 19 May 1995 |
| Docket Number | Docket No. 99797 |
| Citation | 532 N.W.2d 838,448 Mich. 639 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Sheri Lynn JACOBSEN, Defendant-Appellee. |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Dennis LaBelle, Pros. Atty., and Alan Schneider, Asst. Pros. Atty., Traverse City, for the People.
Robert L. Levi, Southfield, for defendant.
The defendant was arrested for driving her car while intoxicated. Approximately ninety minutes after her arrest, two Breathalyzer tests were administered at the county jail. They indicated a blood-alcohol level of 0.17 percent and 0.18 percent.
The defendant was charged with the felony of operating a vehicle under the influence of alcohol, third offense. M.C.L. § 257.625(6); M.S.A. § 9.2325(6).
In circuit court, the defendant moved to suppress the test results. She also moved for the appointment of an expert witness at public expense, stating:
The Defendant believes that an expert witness will be able to offer testimony at any suppression hearing that the breathalyzer results obtained are unreliable due to the lapse of time between the stop and when the evidence was gathered, rate of alcohol metabolism and other factors.
The prosecutor opposed the motion for appointment of an expert, saying that the defendant had failed to make "a threshold showing" either "that the blood test was unreliable" or "that an expert would be of any benefit."
The court denied the motion without prejudice, saying that it would be "very prone" to grant the motion if defense counsel authored a "prima facie showing" that an expert could provide useful testimony.
The defendant then entered a conditional plea of guilty, 1 reserving the issue regarding appointment of an expert. She was sentenced to a term of 40 to 60 months in prison.
The Court of Appeals reversed the defendant's conviction. 205 Mich.App. 302, 517 N.W.2d 323 (1994). Judge TAYLOR dissented.
The majority noted that Breathalyzer tests had been found to have been unreasonably delayed in People v. Schwab, 173 Mich.App. 101, 433 N.W.2d 824 (1988). In light of Schwab, the majority said that the defendant "provided sufficient evidence to require the trial court to appoint an expert witness by showing that the delay was unreasonable and, as a result, the Breathalyzer did not give a reliable indication of her blood alcohol content at the time of the offense." 205 Mich.App. 302, 307, 517 N.W.2d 323.
Writing in dissent, Judge TAYLOR emphasized that M.C.L. § 775.15; M.S.A. § 28.1252 authorizes payment of the fees for an expert witness, provided the accused is able to show "that there is a material witness in his favor within the jurisdiction of the court, without whose testimony he cannot safely proceed to a trial...." Thus, wrote Judge TAYLOR, a defendant must "show a nexus between the facts of the case and the need for an expert." 205 Mich.App. at 309, 517 N.W.2d 323.
Because the circuit court focused on the need for such a showing, which defense counsel was unable to offer, Judge Taylor concluded that the circuit court did not err. We agree. Without an indication that expert testimony would likely benefit the defense, it was not error to deny without prejudice the motion for appointment of an expert witness.
The mere allegation that the delay was unreasonable, with a reference to Schwab, was not a sufficient showing. As the circuit court noted, there was no indication that the defendant had further access to alcoholic beverages after her arrest, or that any other circumstance existed that would call into question the...
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...28.1252. In other words, a defendant must show a nexus between the facts of the case and the need for an expert. People v. Jacobsen, 448 Mich. 639, 641, 532 N.W.2d 838 (1995). Accordingly, the instant trial court's reasoning and conclusion that defendant was entitled to a DNA expert at tria......
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