People v. Weaver, Docket No. 26751

• Decision Date: 02 March 1977
• Docket Number: Docket No. 26751
• Citation: 74 Mich.App. 53,253 N.W.2d 359
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert E. WEAVER, Defendant-Appellant. 74 Mich.App. 53, 253 N.W.2d 359
• Court: Court of Appeal of Michigan — District of US

Page 359

253 N.W.2d 359

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert E. WEAVER, Defendant-Appellant.

Docket No. 26751.

74 Mich.App. 53, 253 N.W.2d 359

Court of Appeals of Michigan.

March 2, 1977.

Released for Publication May 25, 1977.

[74 MICHAPP 54] Keil, Ransom & Henneke by Charles R. McKone, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Prosecutor, Flint, for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P. J., and V. J. BRENNAN and BRONSON, JJ.

BRONSON, Judge.

Defendant was charged with the misdemeanor of negligent homicide. M.C.L.A. 750.324; M.S.A. § 28.556. He was found guilty as charged by a jury on June 11, 1975. On July 29, [74 MICHAPP 55] 1975, he was sentenced to a term of from 16 to 24 months' imprisonment. He now appeals by right. We reverse.

The issue presented concerns the admission into evidence at defendant's trial of the results of certain blood alcohol tests. Defendant asserts that the tests were administered pursuant to the so-called implied consent statute, M.C.L.A. § 257.625a, et seq.; M.S.A. § 9.2325(1), et seq., and consequently were inadmissible in any prosecution other than for driving a vehicle under the influence of intoxicating liquor (D.U.I.L.) or for driving while ability to operate a vehicle was impaired due to the consumption of intoxicating liquor (D.I.). Plaintiff asserts to the contrary that the tests were not administered pursuant to that statute and consequently were admissible in this negligent homicide prosecution.

Resolution of this issue requires discussion of some of the facts surrounding the taking of the blood sample from the defendant.

The charge in this case arose out of an automobile collision which resulted in the death of one Jake Brock. The evidence presented at trial indicated that Mr. Brock was killed while attempting to help his son Ronald start one of the family cars, a Camaro. Ronald had been driving the Camaro in the early morning hours of January 15, 1975, when it stalled on North Saginaw Street in Flint, Michigan. Ronald called his father to ask for assistance and Mr. Brock drove to the stranded automobile in his pick-up truck.

The Camaro was standing in the curb lane of northbound Saginaw, at a point where the street was five lanes wide. The elder Mr. Brock determined that the Camaro could be started with help from the pick-up truck's battery. The pick-up was [74 MICHAPP 56] moved so as to be facing the front of the Camaro, and within about three feet of it.

As Ronald sat in the pick-up truck and his father began to attach battery booster cables between the pick-up and the Camaro, defendant collided with the rear end of the Camaro. The Camaro was smashed against the pick-up truck with Jake Brock between them. Mr. Brock suffered injuries which eventually proved to be fatal.

Police officers who arrived on the scene shortly after the accident testified that the defendant seemed to be dazed, that he smelled of alcohol, that his eyes were red and watery, and that seven empty beer cans and three full ones were found in the back seat of defendant's car.

Deputy David Stanley was one of the police officers on the scene. He conducted a brief investigation and then took the defendant to Hurley Hospital, the same hospital to which Mr. Brock had been taken for treatment.

Deputy Stanley told the defendant that he was taking him to the hospital for a blood test, that they would check on the condition of Mr. Brock, and that there would probably be a criminal prosecution if Mr. Brock were to die.

At the hospital, Mr. Brock was found to be in critical condition, but still alive. Deputy Stanley read Miranda ¹ rights to the defendant and requested a nurse to obtain a blood sample from the defendant. However, the defendant was not formally arrested or charged at this time.

Upon being requested to obtain a sample of defendant's blood, one of the nurses at the hospital read a form containing the following information to the defendant:

[74 MICHAPP 57] "I have been advised and acknowledge that I am not required by law to give my consent to a chemical test of my blood for alcoholic content, and that the results of any chemical test to which I consent may be used in evidence either for or against me in any prosecution relating to my driving a vehicle while under the influence of intoxicating liquor.

"I also have been advised that I may demand a blood alcohol test which must be given to me providing facilities are reasonably available to administer it, and that I am permitted to have such a test administered under the supervision of a physician of my own choosing.

"Having been so advised I give my consent for a test of my blood to determine its alcoholic content."

Defendant signed this form, thereby signifying his consent to the procedure.

A sample of defendant's blood was taken by hospital personnel. Defendant was then released. ²

Brock subsequently died and defendant was arrested and charged with negligent homicide.

Defendant filed pretrial motions to suppress from evidence the results of tests performed on the blood sample to determine its alcohol content. The motion to suppress was denied, after a hearing, and the test results were admitted at defendant's trial. Defendant was convicted of negligent homicide and now appeals.

As noted, defendant asserts that the blood alcohol tests were administered pursuant to the so-called implied consent statute and consequently were inadmissible in this prosecution for negligent homicide. Defendant relies on People v. Keen, 396 Mich. 573, 575, 242 N.W.2d 405, 407 (1976), where it was said:

[74 MICHAPP 58] "We hold that where a blood alcohol test is administered pursuant to the statute the test result is not admissible in a criminal prosecution other than for driving while under the influence of intoxicating liquor (DUIL) or for driving while ability to operate a vehicle was impaired due to the consumption of intoxicating liquor (DI)."

In McNitt v. Citco Drilling Co., 397 Mich. 384, 393, 245 N.W.2d 18, 21 (1976), a subsequent case further construing the statute, the Court held:

"Test results obtained pursuant to the exercise of statutory authority are not admissible unless obtained in conformity with the requirements of the statute."

It is plain that if we determine that the blood alcohol test in this case was "administered pursuant to the statute" or the test results "obtained pursuant to the exercise of statutory authority", phrases which we read as being synonymous, the results were inadmissible in this case. The prosecution was for an offense other than D.U.I.L. or D.I. Moreover, the test results were not obtained in conformity with the statutory requirement and therefore, if obtained pursuant to the statute, were inadmissible for any purpose. ³

Plaintiff's response to defendant's statutory argument is that the tests were not administered pursuant to the statute and that therefore the statute, as interpreted in Keen, cannot act to bar the use of the test results in this prosecution.

Plaintiff argues that defendant was requested to submit to the blood alcohol test pursuant to common law, rather than statutory, authority of the [74 MICHAPP 59] police officer to request such consent. It is argued that the nonreliance upon and the inapplicability of the statute is evidenced by the facts that (1) defendant was not under arrest for D.U.I.L. or D.I. when asked to submit to the blood test; (2) defendant was not informed that refusal to submit to the test would result in revocation of his driving privileges; and (3) defendant received information indicating that a prosecution might occur if Mr. Brock were to die.

Plaintiff also presents us with arguments to the effect that the test results would be admissible under the Fourth Amendment to the United States Constitution by virtue of the United States Supreme Court decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and in addition that defendant's consent to the procedure waived whatever protections the Michigan and Federal Constitutions afforded him to avoid such a procedure. We need not reach these issues, however, as we conclude that the blood alcohol tests were administered pursuant to the "implied consent" statute and that the admission of the test results was precluded by that statute.

Plaintiff's argument that the test results were not obtained pursuant to the statute was also made in McNitt, supra. That case discussed the admissibility of the results of blood alcohol tests in two separate civil cases. In each case, the blood sample had been taken at the request of a police officer to determine alcohol content and not for diagnostic purposes. McNitt, supra, 397 Mich. at 390-391, 245 N.W.2d 18. The driver in one of the cases decided in McNitt had been unconscious when the blood sample was drawn. The driver in the other case had been found by the trial judge not to have validly consented to the testing procedure.

[74 MICHAPP 60] The Supreme Court did not decide whether blood alcohol tests could be administered outside of the authority of the statute. Rat...