People v. Lambert

Decision Date25 November 1975
Docket NumberNo. 12,N,12
Citation395 Mich. 296,235 N.W.2d 338
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donaldson L. LAMBERT, Jr., Defendant-Appellant. ov. Term. 395 Mich. 296, 235 N.W.2d 338
CourtMichigan Supreme Court

James J. Rostash, Pros. Atty., Monroe County, Pros. Attys. Appellate Service, Edward R. Wilson, III, Director by Howard C. Marderosian, Sp. Asst. Atty. Gen., Dept. of Atty. Gen., Lansing, for plaintiff-appellee.

Griffin & Griffin, Monroe, for defendant-appellant by Thomas E. Griffin, Jr., Monroe.

COLEMAN, Justice.

On March 19, 1971, defendant, Donaldson L. Lambert, Jr. was arrested in Dundee, Michigan for the offense of driving an automobile while under the influence of intoxicating liquor. 1 After a jury trial in the District Court of Monroe County, defendant was convicted of that offense and sentenced to pay a fine of $100, court costs and to spend 15 days in the county jail. The conviction was affirmed by the Monroe Circuit Court on March 29, 1972 and by the Court of Appeals on July 27, 1973 in an unpublished per curiam opinion, Docket No. 14084. This Court granted defendant's delayed application for leave to appeal on February 21, 1974. 2

I.

The defendant has raised 5 issues in this appeal. His first 4 issues are all closely related and concern a single point of statutory interpretation. The pertinent portion of the statute involved, M.C.L.A. § 257.625a(3); M.S..A § 9.2325(1)(3) reads:

'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.'

Simply stated, the defendant's main argument is that although the first sentence of the above section of the statute requires that an arrested person need be informed only once of his right to have an additional chemical test administered, that information must be given After and not before his submission to the requested test. 3 Defendant contends that the 'after not before' reading of the statute is required to assure an adequate and effective appraisal of this statutory right. We do not agree.

A reasonable reading of the entire statutory scheme and its legislative history, we are convinced, leads to a different conclusion.

In Collins v. Secretary of State, 384 Mich. 656, 666, 187 N.W.2d 423, 428 (1971), this Court was required to interpret a different section of the same statute. In doing so we stated:

'The statute does not explicitly state who initially has the right or power to choose which chemical test to administer and, indeed, it is ambiguous on this point. In such a situation, the legislative intent is to be gathered not from a particular provision but from the act as a whole, giving meaning to all sections of the act. Sibley v. Smith (1853), 2 Mich. 487; Smith v. City Commission (of Grand Rapids) (1937) 281 Mich. 235, 274 N.W. 776. And, when interpreting an act that is ambiguous, 'We seek a reasonable construction of statutes in the light of the purpose sought to be accomplished' (Benjamin v. City of Huntington Woods (1957) 349 Mich. 545, 555, 84 N.W.2d 789, 794) 'and the intention is to be taken or presumed, according to what is consonant to reason and good discretion,' (Sibley v. Smith, supra (2 Mich.), 492).'

Guided by these principles, we believe that the defendant's main argument unduly elevates form over substance.

The Legislature's primary objective in enacting this law was to provide a scientifically proven method of preserving relevant evidence of a defendant's physical condition at or near the time of his arrest for driving while under the influence of intoxicants. The specific section under discussion in this case gives an arrested person a right to demand an additional chemical test to be administered by a person of his own choosing. The chemical tests mentioned in the statute permit an examination of either blood, breath, saliva or urine in order to determine the blood alcohol content of the arrested person.

It is a well known fact, from a study of human physiology, that the presence of alcohol in the blood of a person who has consumed such substance is altered by normal body functions. 4 Thus, after the passage of a sufficient time period, an examination of a person's body chemistry might no longer produce results which are relevant or material evidence of the blood alcohol level at or near the time of the arrest. 5

It is evident that the Legislature attempted to deal with these physiological problems. Rather than speaking in absolute terms, the statute requires that one charged with DUIL be 'informed that he will be given a Reasonable opportunity . . . within a Reasonable time . . .' The use of these terms evidences legislative concern with the possibility that delay in the administration of the chemical test could produce results which lack probative value. We are therefore convinced that the restrictive reading which the defendant urges us to adopt is improper and certainly not warranted in order to carry out the intent of the Legislature.

While it is clear that the police must give the statutorily required advice to the arrested person within a reasonable time after arrest so that the arrested person has a reasonable opportunity to take an additional chemical test before the blood alcohol level is materially altered by the passage of time, the statute does not mandate either the sequence in which the advice must be given or the specific time at which the arrested person would be informed of his right to have the additional test administered.

The right of which the defendant must be advised is the right to have an additional chemical test administered by a person of the defendant's choosing, Within a reasonable time after arrest. This right is endangered only by delay. Therefore, a defendant is not prejudiced by a prompt appraisal of this right, but only by excessive delay, during which the blood chemistry of the defendant is materially altered by bodily functions.

Our examination of this right which the statutorily mandated 'advice' seeks to protect leads us to the conclusion that the 'advice' may be given either before or after the administration of the police requested chemical test. The exact timing of the advice of the additional test is not crucial so long as the defendant is offered a reasonable amount of time to obtain the additional chemical test. The defendant's contention that the statute mandates that this information may not be given until the defendant has completed the police requested chemical test is without merit. The decisions of the trial judge, the circuit court and the Court of Appeals on this issue are affirmed. 6

II

The defendant has also raised an objection to the manner in which the trial judge instructed the jury concerning the distinction between the offense of driving under the influence of intoxicating liquor 7 (DUIL) and the offense of driving while the ability to operate a vehicle is visibly impaired (IMPAIRED).

The trial judge, after describing the elements of each offense, then attempted to distinguish between them. When doing so he said:

'The legal difference between these two offenses are found in the two words--' material' and 'visible'. If you are to find the defendant guilty as charged, you must be persuaded by the evidence beyond a reasonable doubt that he was under the influence of intoxicants to the extent that his ability to operate the car was materially impaired. If you...

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