People v. Lyall, No. 35

• Court: Supreme Court of Michigan
• Writing for the Court: DETHMERS; KAVANAGH; SOURIS, J., concurred with KAVANAGH; BLACK; KELLY, SMITH and O'HARA, JJ., concurred with BLACK
• Citation: 127 N.W.2d 345,372 Mich. 607
• Decision Date: 06 April 1964
• Docket Number: No. 35
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Otis Virgil LYALL, Defendant and Appellant.

Page 345

127 N.W.2d 345 372 Mich. 607 The PEOPLE of the State of Michigan, Plaintiff and Appellee,
v.
Otis Virgil LYALL, Defendant and Appellant. No. 35. Supreme Court of Michigan. April 6, 1964.

[372 Mich. 608] Eugene Field, Royal Oak, for plaintiff.

Buchanan, Martin, Devers & Bromley, Royal Oak, for defendant and appellant.

Before the Entire Bench.

DETHMERS, Justice.

This case was submitted to this Court for decision on October 11, 1963. By our rotating assignment system it fell to the then Chief Justice, Leland W. Carr, to write the opinion. He did so and served copies thereof upon the other Justices on October 24, 1963. Because of disagreement therewith by some of them his opinion was held up and was not acted upon before his retirement from this Court on December 31, 1963. Consequently, I adopt it and submit it anew for consideration by the Court. It reads as follows:

'CARR, C. J.

'Defendant was arrested by officers of the city of Madison Heights, Oakland county, on the 4th of February, 1962, and was prosecuted under an ordinance forbidding the operation of a motor vehicle on a public highway while under the influence of intoxicating liquor, and also for driving a vehicle upon a highway recklessly and heedlessly at a speed and in a manner endangering persons or property. He was tried in municipal court of said city before a jury, which returned a verdict of guilty as charged. Thereupon the court imposed a sentence requiring payment of a fine and

Page 346

costs or the service of 20 days in jail. Following his conviction defendant sought review of the case in circuit court. On his application a writ of certiorari was issued, to which return was duly made. The case was submitted on briefs and the circuit judge hearing the matter rendered an opinion sustaining the action of the municipal [372 Mich. 609] court. On leave granted an appeal to this Court has been taken.

'On trial in municipal court proof was offered on behalf of the people tending to establish that at the time of his arrest defendant was operating an automobile on a public street in an erratic and reckless manner, and that he was intoxicated to such an extent that his ability to drive a vehicle was impaired. It was also shown by the testimony of the officers that following his arrest defendant was advised with reference to his right to a chemical test of his blood under the provisions of section 625a of the Michigan vehicle code*, which was

added to the code by PA 1960, No 148. Following the explanation with reference to the chemical blood test contemplated by the statute defendant gave his written consent thereto.

'The testimony further disclosed that a sample of defendant's blood was withdrawn from his person by a doctor at William Beaumont hospital, that the blood was sealed in two vials by the doctor, and that the vials were delivered at the police station to the superior of the police officer who had witnessed the withdrawal of the blood and the action of the doctor with reference thereto. The sergeant to whom the vials were delivered forwarded them to the Michigan State department of health at Lansing, Michigan, for analysis and report, which action was authorized under the provisions of PA 1941, No 62 (CL 1948, § 325.101 et seq. [Stat Ann 1956 Rev § 14.54 et seq.]). Said act made provision for the establishment of a crime detection laboratory by the State department of health, the declared purpose being:

[372 Mich. 610] "* * * to afford the several prosecuting attorneys, the attorney general, the Michigan state police and law enforcement officers of the state of Michigan facilities for examinations and analyses in matters of a criminal nature, to the end that the laws of this state may be enforced and violators brought to trial.'

It was further declared that the facilities of the laboratory, including the personnel, should at all times he available for use by the officers designated as entitled thereto.

'In due time a report was received from the State department, over the signature of a toxicologist thereof, by the police officer who had forwarded the blood sample, said report indicating that the chemical analysis of such sample showed it to contain a .21% of ethyl grain alcohol by weight. On the trial of the case in municipal court said report was marked as an exhibit and offered in evidence on behalf of the prosecution. It was received over the objection of counsel for defendant. It appears that the objection was based on the claim that the result of the test could not be shown unless the toxicologist giving the test and certifying thereto was produced in court as a witness. In sustaining the competency of the result of the chemical test the circuit judge reviewing the matter on certiorari said, in part:

"It is the court's opinion that this section of the statute while it may be a question of first impression in this state, permits the introduction and receipt into evidence of the official report of the Michigan Department of Health, Division of Laboratories, Lansing, and that it is not necessary that the technicians working in said laboratory should be produced for the purpose of giving testimony in the matter. This statute sets up adequate safeguards that must be offered to the defendant before any such blood sample can be taken, and before

Page 347

any such report can be admiasible. If the defendant has had the benefit [372 Mich. 611] of those safeguards, then the official report of the laboratory is admissible to give rise to presumptions stated in the statute.

"Such laboratory report is in the same category as any other public record that may be received into evidence without having the officer in charge of those records in court to testify to its genuineness, or to its content as being correct, and the defendant is not entitled to be confronted by such witnesses who are engaged in an impersonal routine administrative type of procedure.'

'The amendment to the motor vehicle code, above cited, was enacted for the benefit and protection of one who is accused of operating a motor vehicle on a public highway while under the influence of intoxicating liquor. Such person is entitled to have his statutory rights explained to him, and his consent to taking the test must be expressed in writing. That the requirements of the law in this respect were observed is not in question in the present case. Under the express language of the statute, where such request is made, the amount of alcohol in the blood at the time of withdrawal from a defendant as shown by the test is admissible in evidence, and is declared to give rise to certain presumptions with reference to the intoxication, or nonintoxication, of the defendant. The statute further provides that one charged with the offense in question shall have the right to demand that the test be given to him if facilities are reasonably available therefor, and the result of such test shall be admissible if offered by the defendant. What the statute obviously contemplates is that the test shall be taken with the consent of the defendant in the case and that the alcoholic content by weight of the blood shall be competent for the purpose of its bearing on the question at issue.

[372 Mich. 612] 'In the course of his performance of public duties the toxicologist who made the test in the instant case was merely acting as an agency to determine a fact which defendant, by his consent to the withdrawal of blood for the purposes of the test, sought to have specifically found. The intent of the legislative enactment was carried out. The result of the test was properly received and defendant was not entitled to insist under the circumstances here presented that the toxicologist making the test should be produced in court.

'In 20 Am Jur 874, it is said:

"In many instances statutes make certificates of public chemists, analysts, or inspectors of the chemical analysis of foods, liquors, fertilizers, and other substances, based upon examinations and tests made by them, prima facie evidence of the ingredients of the substance analyzed. * * *

"The constitutionality of statutes declaring certificates of public officers of the chemical analysis of substance analyzed by them as admissible has uniformly been sustained. Such statutes do not invade the constitutional guaranty of the right of the accused in a criminal prosecution to be confronted with witnesses.'

'In Commonwealth v. Slavski, 245 Mass 405 (140 N E 465, [29 A.L.R. 281]), the defendant was charged with maintaining a 'liquor nuisance' and also with keeping intoxicating liquor for sale in violation of the law. The alcoholic contents of liquid claimed to be 'moonshine' was shown by four certificates signed by the analyst of the State department of health. The statute made such certificates competent evidence and the constitutionality of the statute in such respect was challenged. In discussing at some length the constitutional guaranty with reference to one prosecuted for crime to be confronted by the witnesses against him, it was said:

[372 Mich. 613] "One of the acknowledged exceptions to the face to face rule of evidence is that public records are competent evidence when of probative value

Page 348

respecting an issuable fact. That is an ancient principle of the common law, recognized at the time of the adoption of the Constitution. Wigmore on Ev. §§ 1395-1398. It cannot be thought that the Constitution was intended to close the door to the legislative department of government to establish new public records with like probative value. Existing public records did not become rigid for all time for evidential purposes. * * *

"The determination of the percentage of alcohol in liquor at a specified temperature is the ascertainment of a fact by well recognized scientific processes. Chemical action and measurement in such an analysis do not depend in general upon the quickness of apprehension, retentiveness of memory,...