People v. Perlos

Decision Date25 September 1990
Docket NumberDocket Nos. 86432-86436 and 86524
Citation436 Mich. 305,462 N.W.2d 310
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles A. PERLOS, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Lynn BROWN, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Marcy Beth MILLER, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Timothy Frank BENTLEY, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John Benjamin SCHOMER, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Trevor Craig ENGLAND, Defendant-Appellant. 436 Mich. 305, 462 N.W.2d 310
CourtMichigan Supreme Court

Richard Thompson, Pros. Atty., Oakland County, Michael J. Modelski, Chief, Appellate Div., by Paul J. Fischer, Asst. Pros. Atty., Pontiac, for the People in No. 86524.

John D. Lazar, Royal Oak, for defendant/appellant, England in No. 86524.

John D. O'Hair, President, Pros. Attys. Ass'n, William A. Forsyth, Kent County Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., Grand Rapids, amicus curiae in Nos. 86432-86436, and 86524.


RILEY, Chief Justice.

We granted leave to appeal and consolidated these six cases to determine whether M.C.L. Sec. 257.625a(9); M.S.A. Sec. 9.2325(1)(9) is constitutional, and whether disputed blood test results should be suppressed. Additionally, in People v. Perlos (On Rehearing ), 177 Mich.App. 657, 658, 442 N.W.2d 734 (1989), we granted leave to appeal to consider whether the Court of Appeals correctly remanded the case to allow plaintiff to present evidence on a possible "independent source" for the disputed test results. We hold that M.C.L. Sec. 257.625a(9); M.S.A. Sec. 9.2325(1)(9) is constitutional under U.S. Const., Am. IV and Const. 1963, art. 1, Sec. 11, and the Equal Protection Clauses of U.S. Const., Am. XIV and Const. 1963, art. 1, Sec. 2. Accordingly, we reverse the decision of the Court of Appeals in People v. Perlos, and affirm the decision of the Court of Appeals in People v. England, 176 Mich.App. 334, 438 N.W.2d 908 (1989). 1


In each of these five cases defendants were involved in one-car accidents in Jackson County between December, 1984, and November, 1985. All defendants were taken to Foote Hospital in Jackson, except for defendant Brown who was transported to Albion Community Hospital. At the hospitals, defendants were subjected to blood tests to measure the alcohol content in their blood. These tests were made for medical treatment. 2 The results of the tests showed that all defendants had an alcohol content over the 0.10 percent limit, signifying legal intoxication.

Some time after the tests were performed, and pursuant to M.C.L. Sec. 257.625a(9); M.S.A. Sec. 9.2325(1)(9), 3 the prosecution requested the test results from the hospitals, and the hospitals complied. The prosecution did not obtain a search warrant in order to get the results, nor did defendants consent to the release of the records. On the basis of the results of the tests, defendants were arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor, M.C.L. Sec. 257.625; M.S.A. Sec. 9.2325.

In district court, defendants moved to suppress their test results, claiming that subsection 9 of the implied consent act 4 was unconstitutional. In Perlos, Miller, Brown, and Schomer, the court determined the statute to be constitutional and ruled against suppressing the evidence. In Bentley, the court found the statute to be unconstitutional and suppressed the evidence.

On appeal in the circuit court, these cases were consolidated. On February 27, 1987, Judge Gordon W. Britten found the statute to be unconstitutionalunder the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment, and suppressed the evidence.

The Court of Appeals granted leave to bring an interlocutory appeal, and on July 18, 1988, affirmed the decision of the circuit court, 170 Mich.App. 75, 428 N.W.2d 685 (1988) (McDonald, J., concurring in the result only), holding that the statute violated the Fourth Amendment of the United States Constitution and the parallel Michigan provision. The Court found sufficient governmental involvement in the taking of the blood to invoke Fourth Amendment protections, and consequently determined that the searches did not fall within any of the exceptions to the search warrant requirement. The Court further held that federal and state equal protection guarantees were violated by the statute and ordered the test results suppressed.

However, on December 8, 1988, the Court of Appeals granted plaintiff's application for rehearing in light of Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). On rehearing, the case was remanded to the district court to find a possible "independent source" to permit admission of the evidence. On September 1, 1989, plaintiff's request for clarification was granted, and the Court reaffirmed its position that an independent source for the evidence could be established in the lower court.

On December 28, 1989, this Court granted plaintiff's application for leave to appeal to decide whether the statute is constitutional and whether the test results should be suppressed. Defendants' application to cross appeal was subsequently granted to determine whether the Court of Appeals correctly remanded the case to determine if an "independent source" existed for the evidence. 433 Mich. 917, 450 N.W.2d 262 (1989).


The events which gave rise to this case took place on June 8, 1985. At approximately 1:30 a.m., a two-vehicle collision occurred at the intersection of Hickory Ridge Road and Rose Center Road in Rose Township in Oakland County. Defendant was driving his Chevrolet truck when it collided with a Ford Tempo. The occupants of the Ford Tempo were killed, and defendant was seriously injured in the accident.

After the collision, defendant was transported to Hurley Medical Center. While in a semiconscious state, defendant's blood was drawn, and a blood alcohol analysis was performed, revealing an alcohol level over 0.10 percent.

Pursuant to subsection 9 of the implied consent act, 5 the prosecution obtained defendant's test results without a search warrant and without his consent. After the results were obtained, defendant was arrested. Following a bench trial, he was convicted of two counts of involuntary manslaughter pursuant to M.C.L. Sec. 750.321; M.S.A. Sec. 28.553. The trial court found that defendant failed to yield the right of way when his truck ran a stop sign and struck the Tempo.

Prior to trial, the trial judge denied defendant's motion to suppress the blood test results. After his conviction for involuntary manslaughter, defendant appealed in the Court of Appeals. The Court affirmed the conviction and rejected defendant's challenges to subsection 9 on Fourth Amendment and equal protection grounds. 176 Mich.App. 334, 438 N.W.2d 908 (1989). The England Court explicitly declined to follow the analysis of the statute adopted by the Perlos Court. On June 9, 1989, defendant's motion for rehearing was denied.

Defendant's application for leave to appeal in this Court was granted to decide whether subsection 9 is constitutional, and whether the disputed test results should be suppressed. This case was consolidated with the Perlos cases. 433 Mich. 917, 450 N.W.2d 262 (1989).


The first issue presented is whether subsection 9 of the implied consent act 6 survives constitutional scrutiny under U.S. Const., Am. IV and Const. 1963, art. 1, Sec. 11. 7


The initial inquiry must be whether the actual taking of the blood constituted a search or seizure under the Fourth Amendment. Clearly, a blood test conducted under the direction of police falls within the ambit of the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). However, before constitutional protections from searches and seizures can be activated, state action must be involved in the alleged search. See United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In Jacobsen, the majority stated that the Fourth Amendment is inapplicable " 'to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.' " Id., at p. 113, 104 S.Ct. at p. 1656, quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 2404, 65 L.Ed.2d 410 (1980) (Blackmun, J., dissenting).

In Perlos, the Court of Appeals found that there was sufficient state involvement to activate Fourth Amendment protections. 8 The Court held that a search and seizure improperly took place without a search warrant, and that none of the exceptions to the warrant requirement applied to authorize the prosecutorial action. 9 Thus, the statute was found to be unconstitutional.

In England, the Court of Appeals considered the Perlos Court's analysis of this issue and rejected it. The England Court stated that the Perlos decision

"fails to recognize the distinction between the withdrawal of the blood and the turning over of blood test results to the state.

"The 'search' performed here, i.e., the removal of the blood sample from defendant, was done strictly for purposes of medical treatment and not at the direction of the police, the prosecutor, or state agents. ...

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