People v. Keskinen

• Decision Date: 26 June 1989
• Docket Number: Docket No. 103209
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David KESKINEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 79

441 N.W.2d 79

177 Mich.App. 312

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David KESKINEN, Defendant-Appellant.

Docket No. 103209.

Court of Appeals of Michigan.

Submitted March 15, 1989.

Decided June 5, 1989.

Released for Publication June 26, 1989.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Crim. Div., Research, Training and Appeals, and Thomas M. Chambers, Asst. Pros. Atty., for the People.

Mueckenheim & Mueckenheim, P.C. by Mercedes Mueckenheim, Detroit, for defendant-appellant.

Before WAHLS, P.J., and REILLY and ALLEN, ^* JJ.

WAHLS, Presiding Judge.

Defendant, David Marcus Keskinen, born on November 20, 1954, was convicted by a jury of operating a motor vehicle while under the influence of intoxicating liquor, third offense, M.C.L. Sec. 257.625(6); M.S.A. Sec. 9.2325(6), regarding an incident which occurred on October 7, 1986, in Redford Township. On July 10, 1987, he was sentenced by Wayne Circuit Judge Robert J. Colombo, Jr., to a term of imprisonment of forty to sixty months. We reverse defendant's conviction and remand this case for a new trial, finding that the trial court erred in admitting into evidence, during the prosecution's case in chief and over the objection of defense counsel, the result of a preliminary breath test administered by a police officer just prior to defendant's arrest.

The record reveals that on October 7, 1986, at approximately 2:51 a.m., Redford Police Officers Timothy Oliver and Keith Anderson were driving in a scout car on eastbound Six Mile Road near Inkster Road when they observed a westbound automobile swerving over the central yellow line. Officer Oliver made a U-turn and began following the automobile. The officers then observed the car continue to swerve between and over the traffic lines. After traveling about 1 1/2 miles, the officers stopped the car they had been following and approached the car's driver. The driver, defendant, informed Officer Oliver that his driver's license had been suspended and was asked to get out of his car. The officers noticed that defendant had alcohol on his breath, slurred speech and glassy eyes and was "wobbly" on his feet. When asked if he had been drinking, defendant responded that he had drunk "a few beers."

Two field sobriety tests were administered to defendant. First, he was asked to recite the alphabet and, second, he was asked to stand on one foot. Defendant failed both tests. Officer Oliver then administered a preliminary chemical breath analysis test or preliminary breath test, which revealed a 0.20 percent alcohol content. Based on defendant's erratic driving, his unsuccessful completion of the field sobriety tests, his statement that he had been drinking and the result of his preliminary breath test, Officer Oliver concluded that defendant was intoxicated. Defendant was then arrested. After his arrest, he was transported to the police station, where he refused to submit to a Breathalyzer test. An information was filed on November 12, 1986, charging defendant with operating a motor vehicle while under the influence of intoxicating liquor, third offense, M.C.L. Sec. 257.625(6); M.S.A. Sec. 9.2325(6).

Defendant's three-day trial was conducted in June, 1987. At his trial, defendant testified that the evening before he was stopped by the police he had drunk "two to three Miller light beers, 12-ounce cans" and had eaten some pizza at a friend's house. He maintained that he had recited the alphabet correctly for Officer Oliver and stated that he could not stand on one leg due to a knee problem which was exacerbated by his having sat cross-legged while at his friend's house. Finally, defendant asserted that he had refused to take both the Breathalyzer test at the police station and the preliminary breath test at the scene of his arrest.

In this appeal as of right, defendant first argues that the trial court erred in admitting into evidence, during the prosecution's case in chief and over the objection of defense counsel, the result of the preliminary breath test administered by Officer Oliver just prior to defendant's arrest. We agree, finding that the admission of the test result violated M.C.L. Sec. 257.625h(3); M.S.A. Sec. 9.2325(8)(3), which provides:

The results of a preliminary chemical breath analysis shall be admissible in a criminal prosecution for a crime enumerated in section 625a(1) or in an administrative hearing under section 625f, solely to assist the court or hearing officer in determining a challenge to the validity of an arrest. This subsection does not limit the introduction of other competent evidence offered to establish the validity of an arrest.

In this case, at the conclusion of defense counsel's cross-examination of Officer Oliver, the prosecutor informed the trial court that Officer Oliver had administered a preliminary breath test to defendant at the scene of his arrest and requested that the trial court determine the admissibility of the result of the administered test. The prosecutor contended that the evidence was admissible under Sec. 625h(3) because defense counsel, during her cross-examination of Officer Oliver, had posed questions suggesting that defendant's arrest had been invalid. The trial court ruled that the test result was admissible, stating:

The statute does state that the results of a preliminary chemical breath analysis shall be admissible in a criminal prosecution for a crime enumerated in section 625a(1) solely to assist the Court or hearing officer in determining a challenge to the validity of an arrest.

And it seems that you're suggesting by the cross-examination here that you're attacking the validity of the arrest in terms of whether this particular individual was weaving. It seems like the statute would apply.

* * * * * *

... [I]t seems to me that MCLA 257.625h, paragraph three, authorizes it in this situation.

I'm going to rule it's admissible under that statute.

Subsequently, Officer Oliver testified that defendant had been given a preliminary breath test which produced the result of 0.20 percent. He had earlier explained that a person is considered intoxicated and will be arrested if his or her preliminary breath test registers 0.10 percent. Immediately after Officer Oliver's testimony, the trial court, sua sponte, gave the following cautionary instruction to the jury:

Excuse me. Ladies and gentlemen, I want to give you a cautionary instruction at this point.

That testimony as to the reading on the preliminary breathalyzer test can only be used for one purpose, and that is whether this officer had probable cause to arrest Mr. Keskinen.

It cannot be used to prove that in fact he was intoxicated. All that means is that at that time he got a reading of .20 from that machine and that machine provided a basis for arresting him, okay?

Immediately defense counsel raised questions regarding the proper factors to be considered in laying a foundation for the admission into evidence of results from preliminary breath tests, and a lengthy discussion on this issue ensued among trial counsel and the court outside the presence of the jury. When the jury returned, the court, in response to a request by defense counsel, repeated its cautionary instruction to the jury.

In examining Sec. 625h(3), we are bound to obey its plain and unambiguous language. Jones v. Grand Ledge Public Schools, 349 Mich. 1, 9, 84 N.W.2d 327 (1957); People v. Bound, 163 Mich.App. 261, 264, 413 N.W.2d 762 (1987), lv. den. 429 Mich. 887 (1987). If an ambiguity exists, we must determine, and give effect to, the intent of the Legislature. People v. 2850 Ewing Road, 161 Mich.App. 266, 270, 409 N.W.2d 800 (1987), lv. den. 429 Mich. 884, 416 N.W.2d 115 (1987). Concerning this task, this Court, in Michigan Humane Society v. Natural Resources Comm., 158 Mich.App. 393, 401, 404 N.W.2d 757 (1987), stated:

When determining legislative intent, statutory language should be given a reasonable construction considering the statute's purpose and the object sought to be accomplished. An act must be read in its entirety and the meaning given to one section arrived at after due consideration of other sections so as to produce, if possible, a harmonious and consistent enactment as a whole. Statutes are to be construed so as to avoid absurd consequences. King v. Midland Co Dep't of Social Services Director, 73 MichApp 253, 258-259; 251 NW2d 270 (1977).

However, "[o]nce legislative intent is discerned, it must be given effect, even if doing so might appear to conflict with the letter of the statute." People v. Stoudemire, 429 Mich. 262, 266, 414 N.W.2d 693 (1987). Criminal statutes are to be strictly construed, People v. Crousore, 159 Mich.App. 304, 310, 406 N.W.2d 280 (1987), lv.den. sub nom, People v. Wyngaard, 430 Mich. 893 (1988), unless the general purpose of the Legislature is manifest and is subserved by giving the words used in the statute their ordinary meaning, United States v. P. Koenig Coal Co., 270 U.S. 512, 520, 46 S.Ct. 392, 394, 70 L.Ed. 709 (1926).

We believe that the trial court in this case erred in admitting into evidence the result of defendant's preliminary breath test. Section 625h(3) provides that the result of a preliminary breath test is admissible "to assist the court or hearing officer in determining a challenge to the validity of an arrest." In the context of the traffic laws in which this language appears, it is clear to us that the Legislature intended that Sec. 625h(3) address itself to the challenges brought before the trial court in the form of, for instance, a pretrial motion to dismiss due to an illegal arrest. Since the validity of an arrest is a question which is reserved for judicial officers and is to be decided as a matter of law, see City of Birmingham v. 48th Dist. Judge, 76 Mich.App. 33, 37, 255 N.W.2d 760 (1977); People v. Rowe, 95 Mich.App. 204, 210, 289 N.W.2d 915 (...