People v. McKinney

• Decision Date: 21 February 1979
• Docket Number: Docket No. 78-1552
• Citation: 88 Mich.App. 715,278 N.W.2d 728
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick McKINNEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 728

278 N.W.2d 728

88 Mich.App. 715

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Patrick McKINNEY, Defendant-Appellant.

Docket No. 78-1552.

Court of Appeals of Michigan.

Feb. 21, 1979.

Released for Publication May 29, 1979.

James P. Lawson by David M. Lawson, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., L. Brooks Patterson, Pros.Atty., Lawrence J. Bunting, Asst. Pros.Atty., for plaintiff-appellee.

Before DANHOF, C. J., and BASHARA and CYNAR, JJ.

PER CURIAM.

Defendant was charged with two counts of involuntary manslaughter, M.C.L. § 750.321;M.S.A. § 28.553, following an automobile accident in which he was involved.He was bound over after a preliminary examination held on July 29, August 1 and August 22, 1977.Subsequently, he filed a motion to suppress the results of a blood alcohol test performed the night of the accident.The motion was based upon the court file and preliminary examination transcript and no separate hearing was held thereon.The motion was denied on April 14, 1978.Leave to appeal was granted by this Court on May 22, 1978.

At 7:45 p. m. on June 9, 1977, defendant, age 17, was driving in a westerly direction on Eight Mile Road in the City of Southfield.His speed was far in excess of the 40 m. p. h. speed limit.Defendant's car struck the rear of a Cadillac, causing the Cadillac to roll over and catch fire.The two occupants of the Cadillac were killed in the accident.

Shortly thereafter, Sergeant Norman Buskin of the Southfield Police arrived at the scene of the accident.He observed beer bottles all over the inside of defendant's car.He also noted that defendant's breath smelled of alcohol, his speech was incoherent and his eyes watery and bloodshot.He had no doubt that defendant was intoxicated.Since defendant was injured as a result of the accident, he was taken to Providence Hospital.

[88 Mich.App. 718] At 9:30 p. m. Officer Buskin arrived at the hospital for the purpose of obtaining a blood sample from defendant.Defendant was very upset at the time and was crying.Officer Buskin asked defendant to sign a form consenting to the blood test.He told defendanthe had a right to refuse, that the results of the test could be used against him and that he had a right to secure legal counsel before submitting to any test.At first, defendant refused to consent to the blood test.Defendant asked what would happen if he refused and Officer Buskin replied that he would arrest defendant for manslaughter and withdraw the blood as evidence.After talking with his father, defendant signed the consent form.

The blood was drawn at about 10:00 p. m. by Dr. Martin Katz.Prior to this, Dr. Katz had been told that defendant had been involved in a serious accident and that there was a question as to whether he had been drinking.He was also told the blood sample was being taken in connection with a felony investigation.At trial Dr. Katz testified that defendant had definitely been drinking prior to being brought to the hospital.

Appellant first contends that defendant's consent to the blood test was obtained pursuant to Michigan's implied consent statute and that the results thereof are inadmissible in the present manslaughter conviction.The prosecution argues that the blood test was not administered pursuant to the implied consent statute and that its results are therefore admissible.

M.C.L. § 257.625c;M.S.A. § 9.2325(3) provides that a person who operates a motor vehicle on the highways of this state is deemed to have consented to tests of his blood if he is arrested for driving a vehicle under the influence of intoxicating liquor (DUIL) or while his ability to so operate a vehicle has been impaired due to the consumption of intoxicating liquor (DI).M.C.L. § 257.625a(1);M.S.A. § 9.2325(1)(l), provides that the results of such blood tests are admissible into evidence.Subsection (2) of that same statute grants the physician performing such tests immunity from civil liability as long as the test is not performed in a negligent manner.M.C.L. § 257.625d;M.S.A. § 9.2325(4) permits a person to refuse to submit to such a test.However, subsection (4) of M.C.L. § 257.625a;M.S.A. § 9.2325(1) states that one so refusing must be advised that the refusal to submit to a blood test shall result in the suspension or revocation of their driver's license.

This statutory scheme has been the subject of considerable case law in recent years.In People v. Keen, 396 Mich. 573, 242 N.W.2d 405(1976)the Court held that the results of a blood test administered pursuant to these statutes are admissible only in a DUIL or DI prosecution.Subsequently in McNitt v. Citco Drilling Co., 397 Mich. 384, 245 N.W.2d 18(1976), the Court held that a blood test administered pursuant to the "implied consent" scheme could not be used in a civil proceeding.However, the Court included the following proviso:

"We do not preclude a showing at trial that the officer in requesting that the hospital personnel administer a test made known to them that he was not making the request pursuant to the statute so that they would be aware that if they administered the test they could not claim the statutory protection from civil and criminal liability.Upon such a showing the question whether the statute occupies the field and supersedes the asserted common-law right would be properly presented and require resolution; absent such a showing, we intimate no opinion on the question."McNitt, supra, at 391-392, 245 N.W.2d at 20-21.

1] 2][1,2] In People v. Weaver, 74 Mich.App. 53, 253 N.W.2d 359(1977), the Court was faced with the same question as is involved in the present case.They were asked to determine the nature of a consent given for a blood test in a...