People v. Keen

• Decision Date: 09 October 1974
• Docket Number: Docket No. 18176,No. 3,3
• Citation: 223 N.W.2d 700,56 Mich.App. 84
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmy Esley KEEN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 700

223 N.W.2d 700

56 Mich.App. 84

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmy Esley KEEN, Defendant-Appellant.

Docket No. 18176.

Court of Appeals of Michigan, Division No. 3.

Oct. 9, 1974.

Rehearing Denied Nov. 11, 1974.

Released for Publication Dec. 13, 1974.

Leave to Appeal Granted Jan. 15, 1975.

Herbert E. Phillipson, Jr., Phillipson & Boezeman, Dowagiac, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Michael E. Dodge, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and T. M. BURNS and SMITH*, JJ.

HOLBROOK, Presiding Judge (Affirming in part, reversing in part).

This Court finds that M.C.L.A. § 257.625a(1); M.S.A. § 9.2325(1)(1), as amended, applies only to charges of driving while under the influence of intoxicating liquor or driving while impaired. The testing procedure and the delineation of the right of refusal or consent relates only to those crimes. As such, consent to testing for blood alcohol content is irrelevant under charges for other crimes. As to crimes other than DUIL or driving while impaired, there are reasons separate and distinct from the statute which allow the taking of intoxication tests and the admission of their results. ¹

In Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), the Supreme Court determined that a blood test taken from an unconscious defendant (charged with involuntary manslaughter) was not a denial of due process of law and was not shocking to the conscience or brutal as was the stomach pumping procedure used in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396 (1952). In Breithaupt, Mr. Justice Clark wrote:

'To be sure, the driver here was unconscious when the blood was taken, but the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right and certainly the test as administered here would not be considered offensive by even the most delicate.' 352 U.S. 432, 435, 436, 77 S.Ct. 408, 410, 1 L.Ed.2d 448, 451.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), a blood sample had been withdrawn from the defendant over his objection. Before the Supreme Court, he contended that the withdrawal of the blood and the admission of the analysis in evidence denied him due process of law, was against the privilege of self-incrimination, that he was denied his U.S.Const.Am. VI right to assistance of counsel, and that the evidence was the product of an unlawful search and seizure. All of these claims were dismissed in the opinion of Mr. Justice BRENNAN. We find that the result of the Breathalyzer test is admissible. ²

'Whether any one of various constitutional guaranties is violated by the taking of bodily fluids or materials for analysis or comparison, has, for the most part, been dependent upon the degree of offense to conscience or sense of justice represented, in the circumstances, by the procedure followed. All of the cases expressly or impliedly assume that the kind of evidence obtained by such procedures cannot in its nature be self-incriminatory in the sense that a verbal declaration can be.' Anno.: Physical Examination or Exhibition of, or Tests Upon, Suspect or Accused, as Violating Rights Guaranteed by Federal Constitution--Federal Cases, 16 L.Ed.2d 1332, 1338. ³

The procedure used in the present case is commonly recognized and cannot be said to be an offense against conscience or senses of justice.

In State v. Driver, 59 Wis.2d 35, 207 N.W.2d 850 (1973), the defendant conceded that he could have been compelled to take a blood test but argued that the use of a Breathalyzer was impermissible as that test required him to actively participate by blowing into the apparatus. The Supreme Court of Wisconsin wrote:

'As in Schmerber, the results of the test are not based on any:

"(T)estimonial capacities * * *; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone.' (384 U.S. 765, 86 S.Ct. 1832, 16 L.Ed.2d 916.)

'While the breathalyzer test is expedited by the volitional expulsion of a large quantity of inhaled breath, the results of that test will not be colored, as might a testimonial utterance, by coercion or psychological pressures. As was well said by the lyricist of Lerner and Loewe's, 'My Fair Lady,' respiration is typified as, '* * * second nature to me now. Like breathing out and breathing in." 59 Wis.2d 41, 207 N.W.2d 852. ⁴ In People v. Gebarowski, 47 Mich.App. 379, 383--384, 209 N.W.2d 543, 545 (1973), this Court stated:

'Defendant has no right to refuse to take a breathalyzer test. That is, the state can compel the giving of a breathalyzer test without the benefit of any alternative procedure.

'In Schmerber v. California, 384 U.S. 757, 761, 765, 86 S.Ct. 1826, 1831--1833, 16 L.Ed.2d 908, 914, 916--917 (1966), the Supreme Court stated:

"It could not be denied that in requiring petitioner to submit to the withdrawal and chemical analysis of his blood the State compelled him to submit to an attempt to discover evidence that might be used to prosecute him for a criminal offense. He submitted only after the police officer rejected his objection and directed the physician to proceed. The officer's direction to the physician to administer the test over petitioner's objection constituted compulsion for the purposes of the privilege. The critical question, then, is whether petitioner was thus compelled 'to be a witness against himself.'

"In the present case, however, no such problem of application is presented. Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.'

'Clearly, a defendant can be compelled or coerced into submitting to a breathalyzer test without violating his Fifth Amendment right against self-incrimination.'

Thus, notwithstanding an individual's consent or lack thereof, it would appear that a Breathalyzer test, like a blood test, could be compelled without derogation of constitutional rights and should be admissible.

The South Dakota case of State v. Spry, S.D., 207 N.W.2d 504 (1973), is informative. In that case the defendant was tried and found guilty by a jury of second-degree manslaughter. The defendant had been involved in a head-on collision which resulted in the death of two persons. The defendant was visited about an hour and a half after the accident by two police officers at the hospital. The defendant was placed under arrest for driving while intoxicated, after an officer detected alcohol on his breath. A blood sample, to which defendant consented, was taken. On appeal, defendant contended, Inter alia, that the trial court erred in denying his motion to suppress the results of the blood test.

'It appears that after the defendant was placed under arrest for driving while intoxicated, the arresting officer asked permission of him to have the blood sample withdrawn. The defendant was advised that he had the right to refuse to submit to the test and that he could lose his driver's license for a year if he so refused. The defendant was not advised that the driver of the other car had died as a result of the accident, although it is undisputed that the police officer was aware of that fact.' S.D., 207 N.W.2d 507.

On this basis the defendant argued that the failure of the police officer to inform him of a person's death invalidated any consent given to submit to a blood test and that without consent thereto, the test results were inadmissible. This contention the Court dismissed relying upon SDCL 32--23--10, which is comparable to M.C.L.A. § 257.625a(4); M.S.A. § 9.2325(1)(4) and M.C.L.A. § 257.625d; M.S.A. § 9.2325(4). The Court said further:

'We are not concerned with the question of 'implied consent'. Spry gave an actual consent. State v. Werlinger, 84 S.D. 282, 170 N.W.2d 470 (1969).

'Aside from all that, however, we hold that a defendant's consent or refusal is irrelevant to the admission of the results of the blood test if the test is taken pursuant to a valid arrest. Cf. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Holland v. Parker, 354 F.Supp. 196 (D.D.C.1973).' S.D., 207 N.W.2d 508.

We find that evidence of the analysis in the instant case is properly admissible as there was probable cause for arrest.

'It is time to realize that mere drunkenness, however 'sinful,' warrants no criminal punishment unless it manifests or results in dangerous threats to public safety.

'With the acceptance of alcoholism as a disease which requires treatment rather than punishment, there is a growing tendency to consider drunkenness as a medical problem. However, since the emphasis of the law is on the dangerousness of the drunkenness offender as well as his condition under the influence of intoxicating liquors, the problem is essentially a social one which represents conflicts between society and the individual. Medical science, of course, has much to offer in the improvement of the law and its administratiion. However, the point is to establish a sound basis upon which medicine and the law can work harmoniously in the framework of the present legal system. Therefore, while endeavors are needed to explore the possibilities and methods of treating the recognized alcoholic, the court must continue to play the value weighing function of balancing the risks to individual...