People v. Wager

• Citation: 233 Mich.App. 1,592 N.W.2d 389
• Decision Date: 01 December 1998
• Docket Number: Docket No. 201457
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chad Marcus WAGER, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 389

592 N.W.2d 389

233 Mich.App. 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chad Marcus WAGER, Defendant-Appellant.

Docket No. 201457.

Court of Appeals of Michigan.

Submitted May 6, 1998, at Grand Rapids.

Decided Dec. 1, 1998, at 9:00 a.m.

Released for Publication March 23, 1999.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James J. Gregart, Prosecuting Attorney, and Judith B. Ketchum, Assistant Prosecuting Attorney, for the people.

Butler, Durham & Willoughby (by Anthony R. Toweson ), for the defendant. Parchment

Before: SAWYER, P.J., and MICHAEL J. KELLY and SMOLENSKI, JJ.

MICHAEL J. KELLY, Judge.

Defendant was convicted by a jury of operating a motor vehicle while under the influence of intoxicating liquor causing serious injury, M.C.L. § 257.625(5); MSA 9.2325(5). He was sentenced to five years' probation with the first forty-five days to be served in the county jail. Defendant appeals his conviction as of right. We reverse.

On appeal, defendant claims that the trial court erred in admitting blood alcohol test results into evidence. We agree.

The decision whether to admit evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. People v. Lugo, 214 Mich.App. 699, 709, 542 N.W.2d 921 (1995); Price v. Long Realty, Inc., 199 Mich.App. 461, 466, 502 N.W.2d 337 (1993). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling made. People v. McAlister, 203 Mich.App. 495, 505, 513 N.W.2d 431 (1994).

Defendant was charged and convicted under M.C.L. § 257.625(5); MSA 9.2325(5), which makes it a felony to operate a motor vehicle while under the influence of intoxicating liquor and cause serious impairment of a body function to another person. Defendant claims that the trial court abused its discretion in admitting the chemical test results because the delay between the time of the crime and the administration of the test rendered the test results unreliable. The parties agree that the delay in this case was between two hours and eight minutes and two hours and twenty minutes. The issue, then, is whether the test results remain sufficiently reliable and accurate after such a delay to allow the presentation of that evidence to the jury to be considered in deciding whether defendant was intoxicated at the time he operated a motor vehicle and caused serious injury to another person.

In order for chemical test results to be admitted into evidence, the prosecutor must meet four foundational requirements: (1) the operator administering the test was qualified, (2) the proper method or procedure was followed in administering the test, (3) the test was performed within a reasonable time after the arrest, and (4) the testing device was reliable. People v. Jacobsen, 205 Mich.App. 302, 305, 517 N.W.2d 323 (1994), rev'd 448 Mich. 639, 532 N.W.2d 838 (1995) ¹; People v. Kozar, 54 Mich.App. 503, 509, n. 2, 221 N.W.2d 170 (1974). The only foundational requirement at issue in this case is whether the blood alcohol test was administered within a reasonable amount of time. Whether the delay was reasonable is a determination left to the discretion of the trial court. Jacobsen, supra, 205 Mich.App. at 306, 517 N.W.2d 323; MRE 104(a).

According to this Court in Kozar, supra at 508, 221 N.W.2d 170, a defendant's blood alcohol content at the time of the offense should be considered the equivalent of the blood alcohol content at the time of the test, provided the four prerequisites to the admission of the evidence are met. See also Jacobsen, supra, 205 Mich.App. at 305, 517 N.W.2d 323. If the test was performed within a reasonable amount of time, the prosecution need not relate back through expert testimony the results of the test to the time of the offense as a condition precedent to the admission of the evidence. Kozar, supra at 507, 221 N.W.2d 170. This Court in Jacobsen, supra, 205 Mich.App. at 306-307, 517 N.W.2d 323, explained that the requirement that the blood alcohol test be performed within a reasonable amount of time after the arrest is to ensure that the test results accurately reflect the defendant's blood alcohol content at the time he was arrested. In People v. Krulikowski, 60 Mich.App. 28, 33, 230 N.W.2d 290 (1975), this Court stated that a failure to adduce evidence of the foundational requirements "precludes the admission of the test results into evidence, and does not go merely to the weight which the trier of fact may accord the test results" (emphasis in original). This requirement, however, is not meant to "place the trial bench in a judicial straitjacket with respect to the laying of a foundation as a condition precedent to the admission of evidence." Id. Rather, the trial bench still possesses considerable discretion regarding the adequacy of the foundation in any given case and its determination should not be lightly set aside. Id.

The parties rely on People v. Schwab, 173 Mich.App. 101, 103, 433 N.W.2d 824 (1988), where this Court reiterated the four prerequisites to the admission of chemical blood test results. As in this case, the only error claimed by the defendant in Schwab related to the reasonable time prerequisite. Id. Defendant relies on Schwab because there, the Court upheld the district court's ruling that a two-hour and thirteen-minute delay in administering the chemical test was unreasonable and precluded admission of the test results. Id. at 105, 433 N.W.2d 824. Defendant contends that the two-hour and eight-minute or the two-hour and twenty-minute delay in this case is likewise unreasonable. ²

In Schwab, the defendant was arrested and Breathalyzer tests were administered approximately two hours and fifteen minutes after he was first stopped by the police. Id. at 102, 433 N.W.2d 824. The defendant moved to suppress the results of the tests and the district court granted his motion. The people sought leave to appeal in the circuit court. The circuit court granted leave and ordered the district court to conduct an evidentiary hearing to determine the effect of the passage of time on the reliability of the Breathalyzer tests. The district court then heard extensive expert testimony regarding the rate at which alcohol is metabolized, how likely it is to be absorbed into the stomach, and the many variables that can have an effect on the rate of absorption and metabolism. Id. at 103-104, 433 N.W.2d 824. The district court further heard extensive testimony relating to the reasonableness of the delay in administering the Breathalyzer tests and concluded that the tests were not sufficiently probative of the defendant's blood alcohol level at the time of his arrest. The circuit court affirmed. This Court also affirmed, finding that the district court did not abuse its discretion in suppressing the results of the Breathalyzer tests, but declining the parties' invitations to establish a bright-line rule that would include or exclude the results of a Breathalyzer test depending on the time delay before the test is given. Instead, this Court stated that reasonableness varies from one factual setting to the next and must therefore be considered case by case. Id. at 105, 433 N.W.2d 824.

Under Kozar, supra, Schwab, supra, and Jacobsen, supra, the prosecution must establish that there has not been unreasonable delay in the time between the arrest and the administration of the test. In these three cases, this Court appears to refer to the time of arrest and the time of the offense interchangeably. Presumably, this Court does not distinguish the two events because both occur close in time under the facts of each case. Notably, the offense of operating a motor vehicle while under the influence of intoxicating liquor makes it illegal to be intoxicated at the time of driving, M.C.L. § 257.625(5); MSA 9.2325(5), not at the time of arrest. Therefore, the proper focus of the reasonable time delay inquiry begins with the time of the offense.

In the present case, the trial court agreed that the appropriate inquiry relates to the time of defendant's operation of the motor vehicle and the time the test was administered. Given this time frame, the trial court ruled that the delay in this case was reasonable. In making its decision, the trial court considered the deposition testimony of defendant's expert, Dr. Dennis Simpson, an expert in the area of physiology of alcohol absorption and elimination, regarding how alcohol is absorbed and eliminated by the body over time. Dr. Simpson testified that the blood alcohol test taken at 12:50 a.m. on September 17 had no scientifically probative value with regard to defendant's blood alcohol content during the period between 10:30 p.m. and 10:42 p.m. the night before. He stated that there was no way to determine whether defendant's blood alcohol content was above 0.09 percent between 10:30 p.m. and 10:42 p.m. given the data available in this case. Also, Dr. Simpson could not determine whether defendant's blood alcohol level was rising or falling during the over two-hour delay. According to Dr. Simpson, the range in which a person's blood alcohol content increases after consuming the last drink is somewhere between fifteen minutes and four hours and two minutes. ³ In order for him to determine where a person falls within this range, he would need to know much more than the individual's height, age, weight, and gender. He would need to know the results of liver function and gastrointestinal tests, what the person ate during that time, what other drugs the person was consuming, the effects of an accident or trauma on the individual, the specific alcohol that was consumed, the rate at which it was consumed, and several other variables. Additionally, Dr. Simpson stated that the preliminary breath test administered to defendant at...