People v. Snyder, Docket No. 116527

• Citation: 181 Mich.App. 768,449 N.W.2d 703
• Decision Date: 22 January 1990
• Docket Number: Docket No. 116527
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Alan SNYDER, Defendant-Appellant. 181 Mich.App. 768, 449 N.W.2d 703
• Court: Court of Appeal of Michigan (US)

Page 703

449 N.W.2d 703

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Alan SNYDER, Defendant-Appellant.

Docket No. 116527.

181 Mich.App. 768, 449 N.W.2d 703

Court of Appeals of Michigan.

Submitted Sept. 28, 1989.

Decided Dec. 28, 1989.

Released for Publication Jan. 22, 1990.

[181 MICHAPP 769] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Wesley J. Nykamp, Pros. Atty., and Karen Jongekrijg Miedema, Asst. Pros. Atty., for the People.

Van Eenenaam & White by Randall A. White, Grand Haven, for defendant-appellant on appeal.

Before HOLBROOK, P.J., and MACKENZIE and NEFF, JJ.

HOLBROOK, Presiding Judge.

Defendant pled guilty to OUIL, third offense, M.C.L. Sec. 257.625f; M.S.A. Sec. 9.2325(6), and was sentenced to a five-year probationary term. The plea was taken subject to the condition that defendant's claim that his blood test results were obtained illegally be preserved for purposes of this appeal. We affirm.

After being arrested for drunk driving, defendant refused to submit to a breath test. The arresting officer then sought a search warrant authorizing withdrawal of a sample of defendant's blood. Apparently because the hour was late, the officer resorted to a novel procedure previously approved by the Fifty-Eighth District Court in Ottawa [181 MICHAPP 770] County. The officer contacted the judge by telephone at home and faxed a copy of the unsigned warrant documents to the judge's home. At the judge's instruction over the telephone, the officer raised his right hand and swore to the affidavit. The officer then signed the affidavit and faxed a copy of the signed affidavit to the judge, who then signed the warrant and faxed a copy to the officer. Pursuant to the judge's instruction, the officer then stamped the judge's signature onto the original warrant form and added his own initials.

Defendant sought to suppress the results of the blood test by challenging the validity of the telephone/fax procedure. The circuit court ruled that the procedure was improper because the affidavit was not sworn in the physical presence of the judge issuing the warrant. Since, however, M.C.L. Sec. 257.625a(6); M.S.A. Sec. 9.2325(1)(6) acknowledges that a suspected drunk driver may be tested pursuant to a "court order," the court reasoned that the requisite judicial authorization for giving a test without the driver's consent need not satisfy all of the procedural requirements for issuance of a search warrant. Thus, the signed, faxed document qualified as a court order, even if it lacked the formality necessary for a valid warrant. On this ground, defendant's motion to suppress was denied.

We address this appeal in terms of whether the telephone/fax procedure resulted in the issuance of a valid search warrant. Because we conclude that the warrant was valid, our affirmance is limited to this ground. When a blood test is obtained on the basis of a search warrant, the results of the test are not subject to evidentiary or procedural restrictions set forth in the OUIL statute. In other words, the warrant procedure exists independently of the testing procedures set forth in the OUIL statute. See People v. Cords, 75 Mich.App. 415, [181 MICHAPP 771] 420-423, 254 N.W.2d 911 (1977). Thus, our determination that a valid warrant was issued is dispositive of this appeal.

With respect to the ruling of the circuit court, we note only that a valid search warrant authorizes nothing inconsistent with or unlawful under the provision in M.C.L. Sec. 257.625a(6); M.S.A. Sec. 9.2325(1)(6) regarding court orders:

The person charged shall be advised that if the person refuses the request of a peace officer to take a test described in this section, a test shall not be given without a court order.

This provision does no more than prescribe the advice to be given the allegedly intoxicated driver at his apprehension. Given that the recipient of this advice is assumed to be unsophisticated in knowledge of his or her legal rights, the provision appears to be intended to apprise him or her that a prior judicial authorization would permit the taking of a blood test in the absence of his or her consent. The statute does not authorize or specify any particular form of judicial authorization or procedure, whether it be a warrant or something else; this is a distinction of no consequence to the average driver confronted by the police for drunk driving. We conclude only that a search warrant is encompassed within the term "court order" for purposes of this statute and do not decide whether some less demanding form of judicial authorization would also qualify or whether such a procedure even exists.

Turning to the issue of the validity of the warrant, we perceive nothing about the telephone/fax procedure that is constitutionally infirm. Issuance of a valid warrant requires a prior determination by a detached and disinterested magistrate that [181 MICHAPP 772] probable cause to search exists. People v. Payne, 424 Mich. 475, 479-480, 381 N.W.2d 391 (1985). Nothing occurred to deprive the defendant of this protection. The warrant was in writing and signed, either by the judge's personal signature affixed to the copy faxed to the officer or by the judge's delegation of the ministerial act of signing to the officer. See United States v. Turner, 558 F.2d 46, 50 (CA 2, 1977); State v. Andries, 297 N.W.2d 124 (Minn.1980). An oath was administered, albeit over the telephone line. See Turner, supra, pp. 50-51.

Search warrants are statutorily governed by M.C.L. Sec. 780.651; M.S.A. Sec. 28.1259(1):

When an affidavit...