People v. Keen

• Decision Date: 03 June 1976
• Docket Number: No. 2,J,2
• Citation: 242 N.W.2d 405,396 Mich. 573
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmy Esley KEEN, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 405

242 N.W.2d 405

396 Mich. 573

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

No. 2, Jan. Term 1976.

Supreme Court of Michigan.

June 3, 1976.

Office of Prosecuting Attorney by Michael E. Dodge, Pros. Atty., Cassopolis, for plaintiff-appellee.

Herbert Phillipson, Jr., Dowagiac, for defendant-appellant.

LEVIN, Justice.

The statute provides that the result of a blood alcohol test is admissible in evidence in 'any criminal prosecution for driving a vehicle while under the influence of intoxicating liquor.' ¹

The question on this appeal is whether a blood alcohol test is admissible in a prosecution for manslaughter.

We hold that where a blood alcohol test is administered pursuant to the statute the test result is not admissible in a criminal prosecution other than for driving while under the influence of intoxicating liquor (DUIL) or for driving while ability to operate a vehicle was impaired due to the consumption of intoxicating liquor (DI). ²

I

In Lebel v. Swincicki, 354 Mich. 427, 93 N.W.2d 281 (1958), this Court ruled that the result of a blood alcohol test, based on a blood sample taken from an unconscious driver, was inadmissible in a civil action was the Michigan constitutional provision securing persons from unreasonable searches and seizures ³ precludes the drawing of blood without consent. The Court, on the authority of Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), declared that the result of such a test would be inadmissible in a Federal prosecution. Subsequently, in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court concluded that the Fourth, Fifth, Sixth and Fourteenth Amendments had not been violated by the extraction of blood without consent from an apparently drunken driver and the admission in evidence in a drunk driving prosecution of the result of a chemical test of the blood. ⁴ We are asked to reconsider Lebel in light of Schmerber.

We see no need, however, to decide this case on constitutional grounds. Even if we were to conclude, on reconsideration of Lebel, that the drawing of blood from an apparently drunken driver does not violate his rights under the Michigan constitution, the statute limits the authority of police officers to request the taking of blood and limits the use that may be made of a test result obtained pursuant to exercise of that authority.

II

Section 625 of the Michigan Vehicle Code makes it an offense to drive a motor vehicle while under the influence of intoxicating liquor. ⁵

In 1960, after Lebel was decided, § 625a was added. ⁶ It made admissible in DUIL prosecutions the result of a blood alcohol test administered with the written consent of the driver. It additionally provided that the driver be advised of his right to have or to refuse a test and established certain presumptions regarding the extent of intoxication based on the test result.

After Schmerber was decided, § 625a was modified ⁷ and §§ 625c--625g were added. ⁸ Section 625c provides that a person who operates a motor vehicle 'is deemed to have given consent' to a blood alcohol test if he is arrested while driving under the influence of intoxicating liquor or while his ability to drive has been impaired due to the consumption of intoxicating liquor.

Section 625d provides, however, that '(a) person under arrest shall be advised of his right to refuse to submit to chemical tests; and if he refuses the request of a law enforcement officer to submit to chemical tests, no test shall be given.'

If the driver refuses to take a test, a sworn report is required to be forwarded to the Secretary of State who shall give notice of the right to request a motor vehicle license revocation hearing. ⁹ If the driver does not timely request a hearing, the Secretary of State shall suspend or revoke his license for a period of not less than 90 days nor more than 2 years. ¹⁰ After a requested hearing the Secretary of State may suspend, revoke or deny issuance of a driving license. ¹¹

III

In this case, the officer requested and the driver consented to the test.

While §§ 625c Et seq, are sometimes called the 'implied consent law' and § 625c provides that a person who operates a motor vehicle 'is deemed to have given consent' to a blood alcohol test, companion § 625d in terms provides that 'no test shall be given' to a person who refuses to consent. Under the statute the issue is not viewed in the context of search and seizure, but solely in terms of consent.

The people rely on State v. Spry, 87 S.D. 318, 323--325, 207 N.W.2d 504, 507--508 (1973). The South Dakota statute requires the officer to advise the driver of his right to refuse to submit to a blood alcohol test and the consequences of such refusal in respect to the revocation of his driving privileges. Before Spry declined to exercise his right to refuse, he had asked the officer, who was aware that the driver of the other car had died, whether anyone was seriously injured and the officer responded, 'I'm afraid so'. The South Dakota Supreme Court said, '(I)t is clear that the results of the blood test were admissible despite the failure of the police officer to inform the defendant that the driver of the other car had died as a result of the accident. The statute makes no requirement that the subject be informed of any more than that he has a right to refuse and that his license will be suspended if he does.'

The South Dakota Court considered and rejected another contention of the defendant, adding: '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.'

We can accept that dictum if the South Dakota Court meant that consent or refusal is irrelevant for purposes of the Federal constitution and the South Dakota statute. But consent is not irrelevant under the Michigan statute. The South Dakota statute speaks of presumptions that arise from certain test results but is silent regarding the admissibility of test results. The Michigan statute specifically provides the test results are admissible in DUIL prosecutions. The South Dakota statute does not provide that the driver be advised regarding the use that may be made of test results. The Michigan statute provides that the driver be informed that test results would be admissible in a DUIL prosecution.

Even though the taking of an automobile driver's blood without consent does not violate the Federal constitution and even if on reconsideration of Lebel we were to conclude that it did not violate the Michigan constitution, it would still be within the legislative prerogative to limit the right of police officers and others to take blood from allegedly drunken drivers. Whether consent is or is not constitutionally required, the Legislature may decide that the interest in enforcement of the drunk driving laws does not justify subjecting unconsenting drivers to blood alcohol tests--imposition of the sanction of revocation of driver's license for unreasonable refusal to consent to a test appropriately protects the public interest. ¹² Under the Michigan statute, consent is not only relevant but determinative of whether and to what extent the result of a test administered under the authority of the statute can be used.

The scope of the consent given in Keen, whether it extended to use of the test result in a criminal prosecution other than for DUIL, depends on a construction of the statute and what occurred when Keen's consent was solicited and given.

IV

Since its original enactment in 1960, § 625a has limited the use that may be made of the results of a test administered with the driver's consent pursuant to the statute.

Section 625a begins: '(1) In any criminal prosecution for ¹³ driving a vehicle while under the influence of intoxicating liquor.' The qualifying words, prosecution for 'driving a vehicle while under the influence of intoxicating liquor' are repeated in the opening clause of both the first and second sentences of subparagraph (3):

'(3) A person charged with driving a vehicle while under the influence of intoxicating liquor who takes a chemical test administered at the request of a police officer as provided in paragraphs (1) and (2) hereof, Shall be informed that he will be given a reasonable opportunity to have a person of his own choosing administer one of the chemical tests as provided in this section within a reasonable time after his detention, and The results of such test shall be admissible and shall be considered with other competent evidence in determining the innocence or guilt of the defendant. Any person charged with driving a vehicle while under the influence of intoxicating liquor Shall be informed that he has the right to demand that one of the tests provided for in paragraph (1) shall be given him, and The results of such test shall be admissible and shall be considered with other competent evidence in determining the innocence or guilt of the defendant.' (Emphasis supplied.)

We read the statute to mean that test results will be used only in determining guilt or innocence in a prosecution for driving a vehicle while under the influence of intoxicating liquor or for driving while ability to operate a vehicle was impaired due to the consumption of intoxicating liquor ¹⁴ and for no other purpose. ¹⁵ In the context of an arrest for 'driving a vehicle while under the influence of intoxicating liquor', advice that results of a consensual test will be used to determine the innocence or guilt of the driver means innocence or guilt of the offense for which the driver was arrested. ¹⁶

The Secretary of State who, pursuant to the power granted to him, ¹⁷ has prescribed the advice of rights to be given by police officers to persons arrested pursuant to §§ 625a--625 of the Michigan Vehicle Code, appears to have...