People v. Jagotka
| Decision Date | 27 October 1998 |
| Docket Number | Docket No. 197753 |
| Citation | 232 Mich.App. 346,591 N.W.2d 303 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael John JAGOTKA, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Richard H. Browne, Chief, Appellate Division, and Joyce F. Todd, Assistant Prosecuting Attorney, for the people.
Traver, Lepley and Walzak by Daniel A. Traver, Port Huron, for the defendant.
Before MARKMAN, P.J., and McDONALD and MARK J. CAVANAGH, JJ.
Defendant is charged with operating a vehicle while under the influence of intoxicating liquor, M.C.L. § 257.625; MSA 9.2325. Defendant appeals by leave granted a circuit court order reversing a district court order suppressing blood test results revealing that defendant's blood alcohol content was 0.18 percent. We affirm the circuit court's reversal of the district court's order suppressing the blood test results, but hold defendant is entitled to an adverse inference instruction because of the violation of the search warrant statute that occurred in this case.
On March 11, 1995, defendant was arrested and taken to the police station. The police advised defendant of his chemical test rights pursuant to subsection 6(b) of the implied consent statute, M.C.L. § 257.625a(6)(b); MSA 9.2325(1)(6)(b), but defendant refused to submit to a Breathalyzer test. After obtaining a search warrant, the police transported defendant to the hospital to obtain a blood sample, which was mailed to the Michigan State Police laboratory for testing. The toxicology report was completed March 15, 1995, and indicated defendant had a blood alcohol content of 0.18 percent. The blood sample was later destroyed pursuant to departmental procedure on May 16, 1995. On July 3, 1995, the prosecution provided defendant with a copy of the blood test results.
Defendant moved to suppress the blood test results in the district court, arguing the police violated the relevant search warrant statute, M.C.L. § 780.655; MSA 28.1259(5) (hereafter § 5), by failing to preserve the blood sample for trial. 1 The prosecution claimed defendant had notice the blood sample would be destroyed because of discovery that took place at the pretrial conference on May 3, 1995. Although not entirely clear from the record, it appears the prosecution claimed defendant saw the lab report, which indicated the department policy to destroy samples within thirty days. However, both parties appear to agree that defendant was not provided with his own copy of the test results until July 3, 1995. The prosecution argued that despite notice the blood sample would be destroyed, defendant did not take any action. Defendant countered that the statute did not require him to take any action. Defendant also claimed he had requested the sample be saved when he requested in a letter dated April 11, 1995, an opportunity to inspect any tangible evidence the prosecution intended to introduce at trial. The prosecution also argued evidence had not been destroyed because it was the test results that would be used as evidence at trial, not the blood sample. Defendant responded that the search warrant statute does not specify that the evidence to be saved for trial must be evidence the prosecution, rather than the defendant, intends to use at trial. Finally, the prosecution argued defendant should not be in a better position because his refusal to consent required the police to get a search warrant to obtain a blood sample. Defendant argued he was in a different position because of the differences in the statutes and that there were consequences for refusing to consent under the implied consent statute. The district court granted defendant's motion to suppress, remarking that the case should not be treated differently than if it were a case involving a large quantity of heroin that was destroyed. The district court also reasoned that the blood sample was direct evidence relevant to the issue of defendant's blood alcohol content.
The prosecution appealed to the circuit court by leave granted, again arguing that the implied consent statute did not require the blood sample to be preserved because the test results, not the blood sample, was the evidence. The prosecution also argued defendant's due process rights were not violated by the destruction of the blood sample, relying on California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). The circuit court accepted the prosecution's argument and found the district court erred in suppressing the test results.
On appeal, defendant argues the blood test results should be suppressed at trial because the police violated § 5. Statutory interpretation is a question of law that this Court reviews de novo. People v. Denio, 454 Mich. 691, 698, 564 N.W.2d 13 (1997).
Section 5 provides:
When an officer in the execution of a search warrant finds any property or seizes any of the other things for which a search warrant is allowed by this act, the officer, in the presence of the person from whose possession or premises the property or thing was taken, if present, or in the presence of at least 1 other person, shall make a complete and accurate tabulation of the property and things so seized. The officer taking property or other things under the warrant shall forthwith give to the person from whom or from whose premises the property was taken a copy of the warrant and shall give to the person a copy of the tabulation upon completion, or shall leave a copy of the warrant and tabulation at the place from which the property or thing was taken. He shall file the tabulation promptly with the court or magistrate. The tabulation may be suppressed by order of the court until the final disposition of the case unless otherwise ordered. The property and things so seized shall be safely kept by the officer so long as necessary for the purpose of being produced or used as evidence on any trial. As soon as practicable after trial, stolen or embezzled property shall be restored to the owner thereof. Other things seized under the warrant shall be disposed of under direction of the court or magistrate, except that moneys and other useful property shall be turned over to the state, county or municipality, the officers of which seized the property under the warrant. Such moneys shall be credited to the general fund of the state, county or municipality.
The thing seized in this case was defendant's blood, which was destroyed on May 16, 1995. Defendant does not allege any bad faith on the part of the police and does not dispute that the blood was destroyed pursuant to routine departmental procedure. However, because the blood was destroyed, it was not safely kept for the purpose of being produced or used as evidence at trial. Accordingly, we find the statute was violated in this case.
The issue is whether suppression of the test results is the appropriate remedy for this violation of § 5. The statute itself does not provide a remedy for its violation. The parties have not cited, and our research has not revealed, a case where the police violated § 5 by failing to preserve seized items for trial in the context of a criminal case. 2
In People v. Stoney, 157 Mich.App. 721, 403 N.W.2d 212 (1987), this Court addressed the issue whether test results should be suppressed in the context of the implied consent statute, M.C.L. § 257.625a; MSA 9.2325(1). In Stoney, the defendant's blood was drawn and tested by hospital personnel. The hospital later discarded the blood sample and forwarded the test results, which revealed the defendant's blood alcohol content was 0.21 percent, to the prosecutor pursuant to subsection 9 of the implied consent statute. This Court held the trial court erred in suppressing the test results because the plain language of subsection 1 of the implied consent statute provides it is the test results, not the blood sample itself, which are admissible at trial. Stoney, supra at 725, 403 N.W.2d 212. Moreover, this Court reasoned that while the statute provides the results of the test must, upon request, be made available to the defendant or the defendant's attorney, it does not require preservation of the sample itself. Id. Accordingly, this Court held the test results were admissible under the implied consent statute and the destruction of the sample was "irrelevant." Id.
However, this case is not governed by the implied consent statute because the police obtained the blood sample through a search warrant. This Court has repeatedly held that when authorities obtain a search warrant to take a blood sample, the issue of consent is removed, and the implied consent statute is not applicable. Manko v. Root, 190 Mich.App. 702, 704, 476 N.W.2d 776 (1991); People v. Snyder, 181 Mich.App. 768, 770, 449 N.W.2d 703 (1989); People v. Hempstead, 144 Mich.App. 348, 353, 375 N.W.2d 445 (1985); People v. Cords, 75 Mich.App. 415, 421, 254 N.W.2d 911 (1977). In other words, the search warrant procedure exists independently of the testing procedure set forth in the implied consent statute. Manko, supra at 704, 476 N.W.2d 776; Snyder, supra at 770, 449 N.W.2d 703. Although we recognize that the implied consent statute refers to chemical tests performed pursuant to a court order in subsection 6(b)(iv), this portion of the statute simply states that the allegedly intoxicated driver must be advised that if the driver refuses the officer's request to take the test, the test may be taken pursuant to a court order. See Snyder, supra at 771, 449 N.W.2d 703. The implied consent statute does not provide that tests performed pursuant to a court order fall within its purview. We refuse to read this into the statute as written by the Legislature. Acc...
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People v. Jagotka
...majority of the panel affirmed the judgment of the circuit court, which had reversed the district court suppression order. 232 Mich. App. 346, 591 N.W.2d 303 (1998). However, the majority also held that the destruction of the blood sample constituted a violation of M.C.L. § 780.655; MSA 28.......