People v. Jacobsen
| Decision Date | 16 May 1994 |
| Docket Number | Docket No. 151849 |
| Citation | 517 N.W.2d 323,205 Mich.App. 302 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sheri Lynn JACOBSEN, a/k/a Sheri Lynn Jacobson, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Dennis M. LaBelle, Pros. Atty., and Alan R. Schneider, Chief Asst. Pros. Atty., for the People.
Robert L. Levi, Southfield, for defendant.
Before HOLBROOK, P.J., and FITZGERALD and TAYLOR, JJ.
Defendant pleaded guilty in the Grand Traverse Circuit Court of operating a motor vehicle while under the influence of intoxicating liquor, third offense, M.C.L. § 257.625(6); M.S.A. § 9.2325(6), and was sentenced to forty to sixty months' imprisonment. Defendant appeals as of right. We reverse and remand.
At approximately 8:30 p.m. on July 30, 1991, a state police officer arrested the defendant, suspecting that she was driving while intoxicated. The state police officer took defendant to a state police post and then to a county jail. At the jail, a deputy sheriff administered the first Breathalyzer examination of defendant at 10:02 p.m., and it revealed that defendant's blood alcohol content was 0.17 percent. A second Breathalyzer examination of defendant was taken at 10:11 p.m. and it revealed that defendant's blood alcohol content was 0.18 percent.
Defendant's court-appointed attorney moved for the appointment and payment of an expert witness to testify concerning the reliability of the test results in light of the delay between the time of the initial stop of defendant and the administering of the tests, the rate of alcohol metabolism, and other factors. Defendant's attorney also moved to suppress the results of the Breathalyzer tests. The trial court denied the motions, stating in part that defendant failed to present a "prima facie showing" of the reasonableness of the request for an expert witness. The trial court stated that it had no special knowledge regarding the metabolism of alcohol in the human body or how the delay in administering the tests was unreasonable.
On appeal, defendant first argues that the trial court erred in denying her motion for the appointment and payment of an expert witness to challenge the reliability of the Breathalyzer tests. We note that this issue was preserved by defendant's conditional plea. MCR 6.301(C)(2); People v. Reid, 420 Mich. 326, 362 N.W.2d 655 (1984). This Court reviews a trial court's decision whether to appoint an expert witness for an abuse of discretion. In re Attorney Fees of Klevorn, 185 Mich.App. 672, 678, 463 N.W.2d 175 (1990).
In order to have the trial court appoint an expert witness for an indigent defendant at public expense, the defendant must show "to the satisfaction of the judge presiding over the court wherein such trial is to be had ... [that] he cannot safely proceed to a trial [without the proposed witness]." M.C.L. § 775.15; M.S.A. § 28.1252; People v. Miller, 165 Mich.App. 32, 47, 418 N.W.2d 668 (1987), (On Remand ) 186 Mich.App. 660, 465 N.W.2d 47 (1991). We believe that this indigent defendant could not have safely proceeded to trial without the appointment of an expert witness to testify about the reliability of Breathalyzer tests following a delay between the time of arrest and the administering of the test.
The results of Breathalyzer tests are admissible as evidence provided the prosecution meets four foundational requirements: (1) the operator administering the test is qualified; (2) the proper method or procedure was followed in administering the test; (3) the test was performed within a reasonable time after the arrest; and (4) the testing device was reliable. People v. Kozar, 54 Mich.App. 503, 509, n. 2, 221 N.W.2d 170 (1974). This Court in Kozar, supra at 508, 221 N.W.2d 170, further held:
[A] defendant's blood alcohol content at the time of the offense should be regarded as equivalent to his blood alcohol content as determined by a subsequent chemical test provided such test was administered within a reasonable time after the defendant's arrest. [Emphasis added.]
The reasonableness of the time between the defendant's arrest and the administering of the test is particularly important in the present case, because the defendant was charged with OUIL, third offense, an offense punishable by imprisonment for up to five years. M.C.L. § 257.625(6)(d); M.S.A. § 9.2325(6)(d); see also People v. Krulikowski, 60 Mich.App. 28, 230 N.W.2d 290 (1975). We further note that the defendant indeed was sentenced to forty to sixty months' imprisonment.
In People v. Schwab, 173 Mich.App. 101, 433 N.W.2d 824 (1988), the prosecution argued that the trial court erred in determining that the Breathalyzer test results were not sufficiently probative of the defendant's blood alcohol level at the time of his arrest because of the delay in administering the tests. This Court held that the decision whether a sufficient foundation has been laid for the admission of the evidence, including the reasonableness of the time between the arrest and the time of administering the test, is left to the discretion of the trial court. Id. at 103, 433 N.W.2d 824.
In the present case, defendant filed a motion for the appointment of an expert witness in order to challenge the foundational requirement of reasonableness in the delay between the time of arrest and the time of administering the tests. Defendant argued that the delay was unreasonable because it rendered the test results unreliable. Accordingly, the defendant asked for the appointment of an expert to testify with respect to this issue. However, the trial court denied the request, reasoning that defendant failed to make a sufficient offer of proof of the delay's unreasonableness.
In effect, the trial court placed the proverbial cart before the horse by recognizing that the delay in administering the test might affect the test's accuracy in denoting defendant's blood alcohol level at the time she operated her car and yet disallowing defendant the opportunity to show how the circumstances rendered the test results unreliable. Although the prosecution is not required to relate the blood test results back to the time of the improper driving, Kozar, supra 54 Mich.App. at 508, 221 N.W.2d 170, the time between the arrest and the administering of the test must be reasonable to ensure that the test results accurately reflect the defendant's blood alcohol content at the time she was arrested. Indeed, in Schwab, supra 173 Mich.App. at 103-104, 433 N.W.2d 824, the trial court heard extensive testimony from experts from both sides pertaining to the reasonableness of the delay in administering the Breathalyzer tests. In addition, this Court in Kozar, supra 54 Mich.App. at 509, 221 N.W.2d 170, stated that a defendant may introduce into evidence expert witness evidence interpreting the results of the Breathalyzer test as it relates to the time of the arrest.
Because the trial court should consider the evidence, including the metabolism of alcohol and absorption rates, concerning the reliability of the Breathalyzer test results when exercising its discretion to determine whether the test was performed within a reasonable time after the arrest, we believe that the trial court is required to appoint an expert witness on this matter for an indigent defendant. Contrary to the opinion of the dissenting judge, we believe that the Legislature does require a defendant to show that the facts of the case warrant appointing an expert witness. We conclude that the defendant in the case sub judice 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. Absent a showing that the delay was unreasonable, the trial court retained the discretion to deny the request for an expert witness. See Schwab, supra 173 Mich.App. at 104-105, 433 N.W.2d 824. The dissenting judge concludes that our decision results in a policy disaster, because it will impede the disposition of criminal matters on the merits. On the contrary, we believe it to be sound public policy to require the appointment of an expert witness to an indigent defendant where it has been shown that the Breathalyzer test results...
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...Appeals’ dissenting opinion in that case, see Jacobsen , 448 Mich. at 641, 532 N.W.2d 838, citing People v. Jacobsen , 205 Mich. App. 302, 517 N.W.2d 323 (1994) ( Taylor , J., dissenting). The dissenting judge assumed, without citing any authority, that MCL 775.15"authorizes the payment of ......
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...476, 567 N.W.2d 12 (1997). Similarly, whether the delay was reasonable is a determination left to the court. People v. Jacobsen, 205 Mich.App. 302, 306-307, 517 N.W.2d 323 (1994), rev'd on other grounds 448 Mich. 639, 532 N.W.2d 838 (1995); MRE 104(a). At the time that the circuit court hea......
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...(3) the test was performed within a reasonable time after the arrest, and (4) the testing device was reliable. People v. Jacobsen, 205 Mich.App. 302, 305, 517 N.W.2d 323 (1994), rev'd 448 Mich. 639, 532 N.W.2d 838 (1995) 1; People v. Kozar, 54 Mich.App. 503, 509, n. 2, 221 N.W.2d 170 (1974)......
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