People v. Underwood, 84151
| Decision Date | 10 December 1986 |
| Docket Number | No. 84151,84151 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Orville Warren UNDERWOOD, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Margaret G. Horenstein, Asst. Pros. Atty., for the People.
William A. Basse, Troy, for defendant on appeal.
Before MacKENZIE, P.J., and ALLEN and GEORGE W. CROCKETT, III *, JJ.
Defendant was convicted by a jury in district court of operating a vehicle while impaired--second offense, M.C.L. Sec. 257.625b(3); M.S.A. Sec. 9.2325(2)(3). He was sentenced to a fine of $500 or thirty days in the county jail. Defendant appealed as of right to the Oakland Circuit Court, but his appeal was dismissed. This Court granted defendant's application for leave to appeal.
We reverse defendant's conviction because defendant was effectively denied his statutory right to have a blood test.
M.C.L. Sec. 257.625a(5); M.S.A. Sec. 9.2325(1)(5) provides, in part:
"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 section within a reasonable time after his or her detention, and the results of the test shall be admissible and shall be considered with other competent evidence in determining the innocence or guilt of the defendant."
At the hearing held on defendant's pretrial motion to dismiss, the trial court concluded that the right to have an independent blood test was not violated. The testimony of defendant, the sole witness at this motion hearing, revealed that defendant made a clear request for an alternative chemical test of his blood-alcohol level when he was arrested and again at the police station. According to defendant's testimony, he demanded that a blood test be performed at Beaumont Hospital in Troy. Further, his testimony revealed that he had sufficient funds to pay for the test. According to his testimony, the arresting officers talked him out of it by saying the test was silly and stupid, that the test would show a higher blood alcohol level, and that defendant was going to go to jail anyway. Defendant testified that the results of a...
To continue reading
Request your trial
-
People v. Green
...independent test." See also Koval, supra at 458-459, 124 N.W.2d 274; Dicks, supra at 700-701, 476 N.W.2d 500; People v. Underwood, 153 Mich.App. 598, 599-600, 396 N.W.2d 443 (1986). However, in People v. Dewey, 172 Mich.App. 367, 373, 431 N.W.2d 517 (1988), this Court determined, consistent......
-
People v. Anstey
...190 Mich.App. 694, 701, 476 N.W.2d 500 (1991), People v. Willis, 180 Mich.App. 31, 37, 446 N.W.2d 562 (1989), People v. Underwood, 153 Mich.App. 598, 600, 396 N.W.2d 443 (1986), and People v. Burton, 13 Mich.App. 203, 207, 163 N.W.2d 823 (1968). We overrule these cases, along with 10. See o......
-
Provo City v. Werner
...The statutory right to an independent test should be recognized "willingly and not reluctantly" by the police. People v. Underwood, 153 Mich.App. 598, 396 N.W.2d 443, 444 (1986); Dressler, 433 N.W.2d at 550. It is therefore provident that we limit the duty of the police to facilitating the ......
-
State v. Chastain
...obtained, and the breath test should have been suppressed. 896 P.2d at 828-29. A similar result was reached in People v. Underwood, 153 Mich.App. 598, 396 N.W.2d 443 (1986). Underwood demanded that an independent test be performed. However, the arresting officer "talked him out of" having t......