People v. Prelesnik, Docket No. 179370

• Decision Date: 27 September 1996
• Docket Number: Docket No. 179370
• Citation: 555 N.W.2d 505,219 Mich.App. 173
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Walter PRELESNIK, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 505

555 N.W.2d 505

219 Mich.App. 173

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Walter PRELESNIK, Defendant-Appellant.

Docket No. 179370.

Court of Appeals of Michigan.

Submitted Nov. 22, 1995, at Grand Rapids.

Decided Sept. 27, 1996, at 9:30 a.m.

Released for Publication Nov. 22, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Larry W. Hachman, Prosecuting Attorney, and Herbert P. Tanner, Jr., Assistant Prosecuting Attorney, for People.

Sinas, Dramis, Brake, Boughton, McIntyre & Reisig, P.C. by Bernard F. Finn, Lansing, for defendant-appellant.

Before SAAD, P.J., and MARILYN J. KELLY and M.J. MATUZAK, ^* JJ.

MARILYN J. KELLY, Judge.

Defendant appeals by leave granted from an order reinstating a criminal charge of operating a motor vehicle while under the influence of intoxicating liquor. M.C.L. § 257.625; M.S.A. § 9.2325. The district court had earlier dismissed the charge after finding that defendant was not afforded an opportunity to have an independent alcohol content test conducted. M.C.L. § 257.625a(6)(d); M.S.A. § 9.2325(1)(6)(d). Defendant argues that the circuit court erred in reinstating the charge. We reverse and remand.

I

On December 9, 1993, at approximately 10:44 p.m., police officers stopped defendant for erratic driving. They arrested him after he failed various field sobriety tests. Upon arrival at the police station at approximately 11:35 p.m., defendant was read his rights, including his right to have an independent alcohol test. He submitted to two breathalyzer tests, with a result of 0.14 percent alcohol content. He was then placed in a cell with other prisoners. Defendant testified that, while in the cell, he realized that he had a right to an independent alcohol test. He attempted to get the attention of the jailers, but did so quietly so that the other prisoners would not notice his efforts. Defendant was the warden of a nearby prison, and he feared that he would be recognized by his cellmates.

The deputy on duty testified he could see defendant's cell at all times. While ordinary conversation could not be heard, the deputies could hear if a prisoner yelled or tapped on the cell glass. The deputy did not notice defendant attempting to contact the officers, either by word or deed.

When another prisoner was given a telephone to place a call, defendant obtained the phone and called his wife. He told her to call the jail and demand that he be given an independent alcohol test. She did, but the deputies refused to take defendant for the test. In the commanding sergeant's opinion, the request was untimely. The parties stipulated that defendant had telephoned his wife at 2:20 a.m., and that the officers informed defendant that they were refusing to take him for the test at 2:30 a.m.

The district court dismissed the charge against defendant, ruling that defendant's request for an independent test at 2:20 a.m. had not been unreasonable. The results could have been relevant. The court stated:

If the result [of the independent test] was .35, it would have been relevant. If the result was zero, with a result of .14 at the time--in the possession of the police, there are--there is expert testimony that would have came in and made that zero very relevant.

The point is, Mr. Finn, in terms of his major premise, is right on. The point is--this two hour hearing that we've had makes a great record, if you want to argue that the defendant was laying in the weeds. And that's where I thought [the prosecutor] was going, because that's the only way he can ever prevail in this case, would be by showing that this is a case where a guy waited beyond the pale of reason to create a technicality. [The prosecutor] is not even arguing that. He's making me feel foolish for suspecting that. If he's not going to argue it, and I'm merely going to suspect it, I'm sure as hell not going to find it.

What I've got here is a 2:20 request, four hours, it's arguable. I'm not saying it would have gotten the guy off, I'm saying that it would have been relevant. I'm saying it would have been--it would have been a close question for me to exclude it after argument from lawyers. If it's arguably relevant, it sure isn't to be peremptorily barred by a police officer at 2:00 in the morning because he doesn't like the guy. And so I'm going to dismiss the case.

The prosecutor appealed to the circuit court, arguing that the remedy for a statutory violation would ordinarily be suppression of the evidence. Dismissal of the case was appropriate only when the defendant's due process rights under the constitution had been violated. The prosecutor reasoned that, because the district court had dismissed the case, the court must have found that the officers' conduct rose to the level of a due process violation. The prosecutor asserted that, under federal authority, a due process violation occurs only when the police act in bad faith.

On the other hand, defendant argued that dismissal was an appropriate remedy, because this statutory violation rose to the level of a due process violation. He alleged that Michigan cases decided under the statute do not require a showing of bad faith.

The circuit court ruled in a written opinion that the present case was controlled by a "due process" opinion found in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Accordingly, defendant was denied due process only if the police acted in bad faith by denying his request for an independent test. The circuit court found that:

there was no bad faith when the defendant was within 6-8 feet from the police officers after his arrest and waited 2-3 hours to make his request for an independent exam.

The circuit court reversed the dismissal of the charge and remanded for further proceedings. This court granted defendant's application for leave to appeal on December 14, 1994, and the district court has stayed trial pending this appeal.

II

As a preliminary matter, we must delineate the proper standard of review on appeal. Defendant contends that the circuit court's ruling should be reviewed for an abuse of discretion, while the prosecutor contends that the ruling should be reviewed for clear error.

We note that the appropriate standard of review depends upon the context of the case. The abuse of discretion standard is employed when a trial court decides whether test results are admissible at trial. People v. Schwab, 173 Mich.App. 101, 103, 433 N.W.2d 824 (1988). A court's determination that a defendant was not afforded a reasonable opportunity to obtain an independent alcohol test is a factual finding reviewable under the clearly erroneous standard of MCR 2.613(C). Cf. People v. Craun, 159 Mich.App. 564, 568, 406 N.W.2d 884, rev'd on other grounds 429 Mich. 859, 413 N.W.2d 421 (1987). This case does not involve the admissibility of test results, but rather whether defendant was afforded a reasonable opportunity to obtain an independent test. Consequently, we will review the circuit court's decision for clear error. MCR 2.613(C).

III

The trial court relied upon the federal case of Youngblood, supra, for the proposition that defendant was not denied due process, because the police did not act in bad faith. We find Youngblood inapplicable to this case.

In Youngblood, the issue was whether the defendant had been denied due process by the failure of police to preserve potentially useful evidence. The Supreme Court ruled that, absent a showing of bad faith by the police, the destruction of potentially useful evidence did not constitute a due process violation. Id., 488 U.S. at 56-58, 109 S.Ct. at 336-38. The instant case does not involve the preservation of potentially useful evidence, but rather the defendant's statutory right to an independent alcohol test. Accordingly, the circuit court's reliance upon Youngblood was misplaced.

The relevant statute, ¹ M.C.L. § 257.625a(6)(d); M.S.A. § 9.2325(1)(6)(d), provides:

A chemical test described in this subsection shall be administered at the request of a peace officer having reasonable grounds to believe the person has committed a crime described in section 625c(1). A person who takes a chemical test administered at the request of a peace officer, as provided in this section, shall be given a reasonable opportunity to have a person of his or her own choosing administer 1 of the chemical tests described in this subsection within a reasonable time after his or her detention, and the results of the test are admissible and shall be considered with other competent evidence in determining the innocence or guilt of the defendant. If the person charged is administered a chemical test by a person of his or her own choosing, the person charged is responsible for obtaining a chemical analysis of the test sample.

By enacting M.C.L. § 257.625a(6); M.S.A. § 9.2325(1)(6), the Legislature intended to allow the production and preservation of chemical evidence in an orderly manner. People v. Dicks, 190 Mich.App. 694, 698, 476 N.W.2d 500 (1991). Motorists charged with driving while under the influence of intoxicants are ensured that scientific evidence is not at the sole disposal of the prosecution. Id. at 699, 476 N.W.2d 500.

The relevant inquiry, pursuant to the statutory language, is whether defendant was given a reasonable opportunity (1) to have an independent alcohol content test, (2) performed by a person of his own choosing, (3) within a reasonable time after his detention. The police stopped defendant at approximately 10:44 p.m. Defendant did not express an interest in an independent test until his wife called the police station on his behalf at 2:20 a.m. As such, approximately 3 hours and 45 minutes elapsed between his detention and the request. We find that the length of the delay alone is not dispositive of the question whether the request was timely made.

It should have been determined whether an independent test...