People v. Tracy

• Decision Date: 17 December 1990
• Docket Number: Docket No. 123393
• Citation: 463 N.W.2d 457,186 Mich.App. 171
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Douglas Charles TRACY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 457

463 N.W.2d 457

186 Mich.App. 171

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Douglas Charles TRACY, Defendant-Appellee.

Docket No. 123393.

Court of Appeals of Michigan.

Submitted June 27, 1990.

Decided Nov. 5, 1990.

Released for Publication Dec. 17, 1990.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., James J. Gregart, Pros. Atty., and Dale S. Murney and Michael H Dzialowski, Asst. Pros. Attys., for the People.

James F. Banhof, Kalamazoo, for defendant-appellee on appeal.

Before MURPHY, P.J., and HOLBROOK and MAHER, JJ.

HOLBROOK, Judge.

The prosecution appeals by leave granted from an order of the Kalamazoo Circuit Court reversing the denial of defendant's motion to suppress evidence in the 8th District Court. The district court, in denying the suppression motion, rejected defendant's contention that a search warrant was improperly issued because it was based on the results of a preliminary breath test (PBT). As a result of the warrant, the police were able to obtain a sample of defendant's blood for alcohol content testing. Defendant pled no contest to a charge of operating a vehicle while having an unlawful blood alcohol level, M.C.L. Sec. 257.625(2); M.S.A. Sec. 9.2325(2), reserving his right to appeal the suppression issue. We reverse the Kalamazoo Circuit Court and reinstate defendant's conviction.

Defendant was discovered at the scene of a one-vehicle accident on November 15, 1988, by a Kalamazoo County sheriff's deputy and freely admitted to the officer he was driving the vehicle. Smelling alcohol on defendant, the deputy administered a PBT, the results of which indicated a blood alcohol level of 0.21. Defendant was thereupon arrested for operating a vehicle while under the influence of liquor, M.C.L. Sec. 257.625(1); M.S.A. Sec. 9.2325(1). Defendant refused to submit to a Breathalyzer test. That same day, Deputy Hemphill, the arresting officer, prepared an affidavit in application for a search warrant, stating he smelled alcohol on defendant's breath and reciting the PBT results of 0.21. The search warrant was issued and the blood test ultimately showed an alcohol content of 0.21 percent.

On January 30, 1989, defendant moved in district court to suppress the blood alcohol level evidence. In making the motion, defendant asserted that M.C.L. Sec. 257.625h; M.S.A. Sec. 9.2325(8) prohibited the use of PBT results in support of a search warrant because the statute limits the use of PBT results in criminal prosecutions to resolving the question whether the arrest was valid. The district court ruled that PBT results were properly considered by the magistrate issuing the warrant since the PBT results were an investigative tool which the magistrate could consider, no different from other information which, although not admissible at court, may be considered by a magistrate in issuing a search warrant.

Defendant pled no contest to a charge of unlawful blood alcohol level on condition that his right to appeal the PBT issue would be preserved. Upon appeal to the circuit court, the circuit court concluded the statute restricted the use of PBT results to the validity of the arrest issue, reasoning that the "criminal prosecution" referred to in the statute commenced at the time of arrest and so precluded the use of PBT results in support of an application for a search warrant.

The prosecution's sole issue on appeal is whether the district court erred when it ruled that there were sufficient facts in the search warrant affidavit to justify the seizure of defendant's blood. Stated another way, may the results of a PBT be used to establish probable cause in an affidavit for a search warrant?

A PBT is a preliminary chemical breath analysis of blood alcohol content, normally administered by a law enforcement officer in the field by use of a hand-held instrument. An officer who has reasonable cause to believe someone has been operating a vehicle while under the influence may require that person to submit to a PBT. M.C.L. Sec. 257.625h(1); M.S.A. Sec. 9.2325(8)(1). An arrest may be based in whole or in part on the PBT results. M.C.L. Sec. 257.625h(2); M.S.A. Sec. 9.2325(8)(2). Use of the results is restricted by M.C.L. Sec. 257.625h(3); M.S.A. Sec. 9.2325(8)(3):

The results of a preliminary chemical breath analysis shall be admissible in a criminal prosecution for a crime enumerated in section 625a(1) or in an administrative hearing under section 625f, solely to assist the court or hearing officer in determining a challenge to the validity of an arrest. This subsection does not limit the introduction of other competent evidence offered to establish the validity of an arrest.

At issue before us is the scope of this limitation. The parties in the lower court apparently agree that without the PBT results the affidavit in support of the search warrant would be insufficient. The parties in the lower court do not agree that M.C.L. Sec. 257.625h(3); M.S.A. Sec. 9.2325(8)(3) prohibits reliance on the PBT in the affidavit.

The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. People v. Hawkins, 181 Mich.App. 393, 396, 448 N.W.2d 858 (1989); Joy Management Co. v. Detroit, 176 Mich.App. 722, 730, 440 N.W.2d 654 (1989), lv. den. 433 Mich. 860 (1989). The first criterion in determining intent is the specific language of the statute. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Foster v. Stein, 183 Mich.App. 424, 426, 454 N.W.2d 244 (1990); National Exposition Co. v. Detroit, 169 Mich.App. 25, 29, 425 N.W.2d 497 (1988), lv. den. 432 Mich. 853 (1989).

Two different readings of the pertinent statute in the case at bar present two arguably valid interpretations. If reasonable minds can differ as to the meaning of a statute, judicial construction is appropriate. Dep't of Social Services v. Brewer, 180 Mich.App. 82, 84, 446 N.W.2d 593 (1989). The court must look to the object of the statute, the harm it is designed to remedy, and apply a reasonable construction which best accomplishes the statute's purpose. In re Forfeiture of $5,264, 432 Mich. 242, 248, 439 N.W.2d 246 (1989). In doing so, the court may consider a variety of factors and apply principles of statutory construction. Rancour v. The Detroit Edison Co., 150 Mich.App. 276, 285, 388 N.W.2d 336 (1986), lv. den. 428 Mich. 860 (1987).

In the only reported case to construe M.C.L. Sec. 257.625h(3); M.S.A. Sec. 9.2325(8)(3), this Court concluded that one of the purposes of the provision is to prevent the PBT results from being divulged to the jury under any circumstances. People v. Keskinen, 177 Mich.App. 312, 319, 441 N.W.2d 79 (1989), lv. den. 433 Mich. 902 (1989). In so ruling, this Court held that the question of the validity of an arrest was to be decided outside the jury's presence. Id. However, Keskinen did not address any other aspects of the statute, nor does its ruling regarding the purpose of the act support or hinder the position of either party at bar. Thus, this Court analyzes the instant issue as a question of first impression.

As we noted previously, the language of a statute is the first criterion to consider. Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning; technical terms are to be accorded their peculiar meanings. M.C.L. Sec. 8.3a; M.S.A. Sec. 2.212(1); People v. Hicks, 149 Mich.App. 737, 742, 386 N.W.2d 657 (1986), lv. den. 425 Mich. 882 (1986). A court may consult dictionary definitions. People v. Downey, 183 Mich.App. 405, 409, 454 N.W.2d 235 (1990).

Defendant asserts that the crucial word here is "solely" and only argues the meaning of that word. This argument, however, is unhelpful. The clause "solely to assist ... in determining ... the validity of an arrest" modifies the statute's enumeration of the admissibility of PBTs in certain proceedings. If the statute were meant to restrict all use of PBTs to "solely" the validity of an arrest, it would have said so. See Grier v. DAIIE, 160 Mich.App. 687, 690, 408 N.W.2d 429 (1987), lv. den. 429 Mich. 901 (1988), recon. den. 430 Mich. 894 (1988). Instead, the limitations imposed by the statute are addressed to the admissibility of the PBT in specified proceedings. The statute does not, for example, limit the use of PBT results in civil proceedings or in criminal proceedings in which the charge is not a drunk driving offense. The crucial question here, then, is what meaning the Legislature intended by the use of the phrase "criminal prosecution."

There is no statutory definition of "criminal prosecution" and so this Court may resort to dictionary definitions. According to the American Heritage Dictionary, 2d College Edition (1985), "prosecution" means the institution and conduct of a legal proceeding. Black's Law Dictionary (5th ed), defines "prosecution" as a criminal proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged. These definitions are not particularly helpful because they beg the question whether the investigatory step of obtaining a search warrant is a "legal proceeding."

The Legislature is presumed to be familiar with the rules of statutory construction, and when promulgating new laws is charged with knowledge of existing laws on the same subject. Victorson v. Dep't of Treasury, 183 Mich.App. 318, 323, 454 N.W.2d 256 (1990); Joe Dwyer, Inc. v. Jaguar Cars, Inc., 167 Mich.App. 672, 684, 423 N.W.2d 311 (1988). There appear to be no similar laws in Michigan which would aid in understanding the Legislature's intent. The phrase "criminal prosecution," however, appears in Const.1963, art. 1, Sec. 20. The scope of the phrase as used in the constitutional provision has not been addressed in any way relevant to the issue in the case at...