People v. Tipolt, Docket No. 145290
| Citation | 497 N.W.2d 198,198 Mich.App. 44 |
| Decision Date | 19 January 1993 |
| Docket Number | Docket No. 145290 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Bryan David TIPOLT, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and John S. Pallas, Asst. Pros. Atty., for the People.
Leo J. Foley, South Lyon, for defendant-appellee.
Before MARK J. CAVANAGH, P.J., and MacKENZIE and GRIFFIN, JJ.
The people appeal by leave granted from a district court order that suppressed the results of a Breathalyzer test given to the defendant. Defendant was charged with driving while under the influence of intoxicating liquor, M.C.L. Sec. 257.625(1); M.S.A. Sec. 9.2325(1), operating a vehicle while having a blood alcohol content of 0.10 percent or more, M.C.L. Sec. 257.625(2); M.S.A. Sec. 9.2325(2), and driving while under the influence of intoxicating liquor, second offense, M.C.L. Sec. 257.625(5); M.S.A. Sec. 9.2325(5). We reverse.
Defendant was arrested in White Lake Township on January 6, 1991. At trial, the arresting officer testified that he was a certified Breathalyzer operator, that a class IV operator had checked the machine on December 26, 1990, that weekly tests had been performed on the Breathalyzer by a class II operator between December 26, 1990, and April 7, 1991, and that the machine was taken out of service because of its age on April 7, 1991.
Defendant moved for the suppression of the Breathalyzer test results because of an alleged failure by the police to comply with administrative rule 1984 AACS, R 325.2653(3). That administrative rule requires the inspection by a class IV operator of breath alcohol test instruments for accuracy "within 120 days of the previous inspection." According to the defendant, the administrative rule was violated when the Breathalyzer was taken out of service on April 7, 1991, because it was not inspected by a class IV operator within 120 days of its last inspection date, December 26, 1990. The district court granted defendant's motion to suppress, and this appeal followed.
In order for the results of chemical tests of blood alcohol to be admitted into evidence, the proponent of such tests must meet four foundational requirements. First, it must be shown that the operator was qualified. Second, the proper method or procedure must be demonstrated as having been followed in the tests. Third, the tests must have been performed within a reasonable time after the arrest. Finally, the testing device must be shown to be reliable. People v. Kozar, 54 Mich.App. 503, 509, n. 2, 221 N.W.2d 170 (1974).
A reading of the administrative rules with respect to the administration of Breathalyzer tests indicates that their purpose is to ensure the accuracy of those tests. People v. Willis, 180 Mich.App. 31, 35, 446 N.W.2d 562 (1989). Failure to meet any of the foundational requirements will preclude the use of the test results. People v. Krulikowski, 60 Mich.App. 28, 32-33, 230 N.W.2d 290 (1975). Although the exclusion of evidence is not necessarily the appropriate remedy for every violation of an administrative rule, when the administrative rules concerning the administration of Breathalyzer tests have not been complied with, the accuracy of those tests is sufficiently questionable so as to preclude the test results from being admitted into evidence. Willis, supra 180 Mich.App. at 35-36, 446 N.W.2d 562.
In construing administrative rules, courts apply principles of statutory construction. General Motors Corp. v. Bureau of Safety & Regulation, 133 Mich.App. 284, 349 N.W.2d 157 (1984). The primary goal...
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