People v. Anstey

436 436 476 Mich PEOPLE v ANSTEY (Calendar 3). 7, 2006 Argued July Docket 128368. No. March No. Decided 31, 2006. Anstey operating Mark J. was for arrested a motor vehicle while intoxicating liquor under the influence of with an or unlawful 257.625(l)(a) level, (b), agreed blood alcohol MCL and to take a bodily taking breath chemical test of his alcohol After level. the police-administered defendant, permitted as 257.625a(6)(d), requested person an to have of his choosing own administer an chemical test. It is not disputed request that his reasonable The denied. district court suppression pohce-administered ordered of the results of the charge. test denied the but defendant’s motion to dismiss The County Court, Butzbaugh, J., granted Berrien Trial Alfred M. application interlocutory appeal defendant’s an for and reversed denying order district court the defendant’s motion to charge Koval, People dismiss on the basis v 371 Mich 453 (1963), required charge. dismissal of The court remanded the entry matter the district court for the of an order consistent opinion. prosecution appealed with its the trial from court’s opinion PJ., Appeals, and order and the Court of and Zahra, Neff JJ., opinion and affirmed the and of the trial order court in Cooper, unpublished opinion curiam, per February 8, issued 2005 (Docket 255416). Supreme granted prosecu- No. Court application appeal. tion’s leave 474 Mich 886 opinion by joined by Corrigan, In an Justice Chief Justice Young Supreme Taylor and Justices and Court held: Markman, suppression Dismissal or police- 1. test results administered chemical is not warranted because MCL 257.625a(6)(d) Koval, specify remedy. People does v 371 Mich (1963), progeny contrary, including 453 and its that held to the Green, People App (2004), Prelesnik, People 260 392 v Mich v 219 Hurn, App (1996), People App Mich 173 v (1994), 205 Mich 618 Dicks, Willis, People (1991), App People v Mich v 180 Mich (1989), Underwood, App People (1986), App v 153 Mich Burton, People App (1968), v 13 Mich must be overruled. However, when a trial court determines that the defendant was Anstey opportunity for an statutory right deprived to a reasonable 625a(6)(d), may § the court test under statutory was violated defendant’s that the instruct significance to this jury may to attach decide what that the give from authority derives such an instruction The court’s fact. jury the law authority the on of the court to instruct inherent the discretionary power comment on to applicable and the to the case judiciary’s the also advance an instruction will the evidence. Such ascertaining jury The instruction duty in the truth. assist the to right give to the pursuit and real effect of the truth further the will 257.625a(6)(d). in MCL defense, right present US process to a due 2. The defendant’s 13, 17, 20, XIV; §§ was not Const, VI, art Const Ams duty or federal violated, police no under the state the have because developing potentially excul- in to assist a defendant constitutions duty to police no constitutional patory have evidence. Just as duty tests, they to any no constitutional perform chemical have obtaining independent chemical test. in an the defendant assist duty to take affirmative action police to The have no constitutional place to a transport of his incarceration defendant from the requested did not test. The defendant hospital for the of his choice obtaining an right police in to assistance a constitutional have hospital The of his choice. independent test at the chemical rights. process due the defendant’s actions did not violate officer’s Appeals, judgment affirmed the Court of which of the 3. court, matter must reversed and the judgment trial must be of the charges. At of the for reinstatement to the trial court be remanded trial, police-administered test shall be results of the comí; jury may admissible, that the instruct the trial but jury may statutory right and that was violated defendant’s significance to attach to this fact. decide what dissenting part, concurring part in Justice Weaver, overruling majority’s opinion of the the result concurred with reversing (1963), progeny, Koval, and its v 371 Mich remanding Appeals, matter to judgment Court of charges against the reinstatement of trial court for the join the declined to dissented and Justice Weaver defendant. stating permissive opinion majority’s that a portion of the has been may appropriate the defendant be when instruction independent chemical an unreasonably for denied the Legislature Rather, whether to revise to the it should be left test. 257.625a(6)(d) remedy of that provide for a violation because Koval was appropriate to overrule Koval It is subsection. workability, practical be- decided, wrongly defies because Koval 476 Mich 436 hardship if cause reliance interests will not suffer undue Koval is overruled, changes longer justify and because in the law or facts no the Koval decision.

Reversed and remanded. joined by dissenting, Justice Justice stated Cavanagh, Kelly, remedy that to hold there is no the violation of the mandatory right independent to an chemical test contravenes unambiguous statutory rule of construction word in nugatory. a statute can rendered be The word “shall” in MCL 257.625a(6)(d) Legislature’s indicates the clear intent create mandatory requirement. requires clearly The statute way person attempts some assist in when to exercise right mandatory to obtain chemical test. A right remedy right without a for the of that is no violation Legislature, amending all. the statute 12 times since People Koval, (1963), decided, 371 Mich 453 has deliber- ately holding place. chosen to leave the in Koval in It can be presumed that the is satisfied with the prudent dismissal A found Koval. defendant’s Sixth Amend- present implicated ment a full defense is when the deprived statutory right defendant is to an ignoring chemical test. Neither the constitutional violation nor allowing suppression for of the results the state-administered rectify put chemical test will the violation or the defendant on equal footing prosecution. Nothing with that of the less than judgment dismissal cures the violation. The of the Court of Appeals should be affirmed. Operating — 1. Criminal Law — Motor Vehicle While Intoxicated Evidence —Independent Chemical Tests. charges against suppression Dismissal of the a defendant or police-administered results of a chemical test of the defendant’s body proper alcohol level is not when the defendant has been statutory right independent denied the to an chemical test as provided 257.625a(6)(d); under MCL a trial court that determines deprived opportunity that the was defendant of a reasonable for an 625a(6)(d) may § chemical test under instruct the statutory that the defendant’s was violated and that the jury may significance decide what to attach to this fact. 2. Constitutional — — Law Criminal Law Evidence.

Although police duty have a to honor the defendant’s to present defense, Const, VI, XIV; 1963, 1, 13, a US §§ Ams Const art Anstey Opinion of the Court constitutions duty or federal 17, 20, they the state no under have exculpatory evi- developing potentially a defendant assist dence. Operating Vehicle While a Motor

3. Constitutional Law — Law —Criminal —Independent Tests. Chemical Intoxicated constitutions, US duty or federal police under the state have no 20, 13, 17, perform XIV; §§ Const, VI, art Const Ams obtaining an defendant assist a any tests or to chemical intoxication; police have for independent chemical test transport duty action take affirmative constitutional hospital to a place her incarceration of his or from the defendant requested independent test for an defendant’s choice defendant. L. General, Casey, Thomas Cox, Attorney

Michael A. Attorney, Prosecuting General, Cherry, James Solicitor Attorney for Prosecuting Mead, Assistant Aaron J. the people. Rodwan) ( for the by Gail Defender Appellate

State defendant.

CORRIGAN, Defendant was operating arrested intoxicating the influence under motor vehicle while level alcohol blood an unlawful liquor or with (b). 257.625(l)(a) or (OUIL/UBAL), of MCL a violation to take arrest, agreed Following defendant’s chemical breath officer-administered Under alcohol level. bodily defendant’s police- to take 257.625a(6)(d), having agreed after to “a reason- entitled test, defendant was administered or her own of his person to have able test. choosing administer” court’s the district dispute does prosecution violated. statute ruling directed case and this appeal leave to granted We (1) the issues briefed: among to include parties of for the denial the proper dismissal is whether 440 476 MICH436 Opinion of the Court chemical violation MCL (2) Koval, 257.625a(6)(d); and whether (1963), Mich was decided. correctly NW2d 474 Mich 886 conclude that specify

We because the statute does not remedy, statutory a is not dismissal warranted holding, Koval, In specifically violation. so we overrule supra, progeny. hold, however, its when We that determines trial court that deprived the defendant was or her to of his for an reasonable chemical test 257.625a(6)(d), under MCL may the court instruct the defendant’s statutory right was violated and that the jury may significance decide what to to attach this fact. We also hold that defendant’s due process present to defense was not violated.

I. FACTS Defendant stopped by police and arrested for transported defendant to jail OUIL/UBAL. requested that he take a chemical breath test. agreed Defendant to take It the test. reflected his alcohol body level was 0.21 grams per 210 liters of breath, plainly the legal above limit.1 Defendant then asked officer to arresting transport him to a medical facility in Indiana for an independent but to the officer refused do so. Defendant next asked the officer to him transport to Community Watervliet Hos- about a pital, jail. 15- to 20-minute drive from the refused, again officer but offered take defendant 257.625(1) arrested, time statutory At the defendant was set the body per grams intoxication threshold at a alcohol content of 0.10 blood, per breath, per milliliters 210 liters of milliliters urine. 61, however, statutory Pursuant 2003 PA intoxication threshold has been reduced from 0.10 0.08. Anstey v Opinion the Court of nearby Center, Medical Joseph Hospital/St. Lakeland for routinely suspects took location where offer, apparently refused this tests. Defendant chemical truly that he he did not believe could obtain because never Consequently, test there. independent of his alcohol level. independent body an received offense, OUIL, second charged Defendant was 257.625(l)(a) (b); offense, UBAL, MCL second and/or 257.625(8)(b).2 moved to dismiss the Defendant MCL de- arresting unreasonably officer because charges for chemical test under request independent nied his an 257.625a(6)(d). court found defen- The district MCL Indiana unreason- go hospital to to the request dant’s have had to travel the officer would able because found jurisdiction. his But the district court outside for Hospital to request go that defendant’s Watervliet reasonable, and that an chemical test was independent 257.625a(6)(d) failing to MCL the officer violated that The court determined request. honor defendant’s of the be an charges “inappropriate dismissal would remedy draconian” because defendant was somewhat his an completely not denied chemical given because he was Instead, Hospital. a test at Lakeland obtain such police- suppression court held that results remedy. the proper chemical test was administered reversed, ruling Berrien Trial Court County had MCL 257.625a progeny interpreting Koval and its was the consistently appropriate held that dismissal of for the denial remedy unreasonable Legislature test. court held remedy for different specifically provided would have a different provide or amended the statute to for 257.625(8)(b) redesignated as MCL has since been 257.625(9)(b). 476 Mich

Opinion of the Court if it not remedy remedy had intended to be Instead, silently dismissal. had acqui- dismissal esced to the amending light statute in Koval subsequent Court of Appeals holding decisions that dismissal the appro- trial priate remedy. The court then remanded entry district court for order dismissing of an charges.

The Court of Appeals affirmed. People Anstey, unpublished opinion per curiam of the Court Ap- (Docket 255416). peals, February 8, issued No. We granted prosecution’s the application for leave to ap- (2005). peal. 474 Mich 886

II. STANDARD OF REVIEW prosecutor The challenges whether of dismissal charges against appropriate defendant was under MCL 257.625a(6)(d). Questions statutory interpretation of are questions of law that this Court de reviews novo. Denio, v People 691, 698; 454 Mich 564 NW2d

III. ANALYSIS 257.625a(6)(d) A. MCL question before this Court is the Legis- whether 257.625a(6)(d) lature intended that a of violation MCL should result in dismissal of the case because officer unreasonably denied request defendant’s for inde- pendent chemical test by person administered a of his choosing.3 own “The primary goal in construing a give statute ‘to effect to the Legislature.’ intent of the opinion regarding correctly We offer whether district court 257.625a(6)(d). police ruled that violated MCL But because the prosecution challenge ruling, does not the district court’s assume we purposes opinion of this section of statute violated. Anstey People v Opinion the Court of of language examining plain begin by We 631; 698 Stewart, Mich statute.” omitted). (citations (2002) NW2d have an reasonable to a statute, MCL is created test chemical 257.625a(6)(d): be subsection shall in this test described A chemical having peace a officer request of administered a person has committed grounds believe reasonable 625c(l). who takes person A in section crime described as request peace at a test administered chemical officer’s oppor- given a reasonable shall be in this section

provided choosing admin- her own person his or tunity have a in this subsection tests described the chemical ister The test his or her detention. time a reasonable within after with other and shall be considered admissible results are inno- determining the defendant’s admissible charged is administered guilt. person If the or cence choosing, the his or her own person obtaining a chemical responsible for charged is person [Emphasis added.] analysis sample. of the test remedy specify did not what Notably, Legislature advise, denied, a failed to if a officer apply opportu- to a reasonable of his or her chemical test. to obtain an nity clearly specified has contrast, By 8 of MCL with subsection comply fails to if a prosecutor for a defendant available to 257.625a, remedy of suppression is 8 of the statute of subsection violation test.4 chemical state-administered results of the 4 257.625a(8) provides: MCL (6) administered, in subsection test described If a chemical charged person or to the made available results shall be

the test prosecution, request attorney upon to the person’s written prosecution The request the court. copy filed with day days of the trial. 2 before the at least furnish the results shall 444 476 436 MICH Opinion of the Court Legislature Had a comparable remedy intended 6(d) of even violation subsection the more drastic —or so specified. People dismissal —it could have (2006) (citation Monaco, 48, 58; 474 Mich NW2d omitted) (“ Legislature ‘Courts cannot assume inadvertently omitted from language one statute the ....’”). placed in that it another statute 257.625a(7) MCL is also noteworthy. At time 257.625a(7) arrested, defendant was provided, in pertinent part, follows: as (6) provisions relating of subsection to chemical testing any do not limit introduction of admis other bearing question upon sible evidence of whether a by, of, person impaired or under influence intoxi ...[6] cating liquor that, Subsection 7 indicates notwithstanding provi- regarding sions evidence forth testing set subsection intended to allow the prosecution to go forward on other evidence establish- ing impaired operation a motor vehicle. Given this statutory language, prosecutor could adduce evidence relating to a defendant’s erratic driving, inability to perform sobriety tests, field speech, slurred as well as other evidence tending to establish the defendant’s prosecution shall offer the test results as evidence in that comply fully request

trial. Failure to with the bars the admission of prosecution. [Emphasis the results into added.] (or progeny Koval its did not this address subsection its then- existing equivalent) determining charges that dismissal of was the appropriate remedy for an unreasonable denial of the to an independent chemical test. provide, pertinent part: Subsection was amended in 2003 to “The (6) provisions relating testing of subsection to chemical do not limit the any bearing any upon introduction other admissible evidence questions following analysis applies equally . . PA ..” 2003 61. Our to the amended statute. Anstey 445 v Opinion of the Court with sub- together Reading this subsection impairment. intent, Legislature’s the 6, seem it would section 257.625a(6)(d) violated, was to was or not MCL whether under go forward prosecutor a permit (OUIL) evidence, 257.625(l)(a) beyond other using Dismissal, there- guilt. to establish testing, chemical remedy.7 fore, anticipated not an held) (and Legisla argues that the Cavanagh the trial court Justice 257.625a(6)(d) post remedy -Koval a to MCL decision not to add ture’s agreement Legislature’s the statute indicates amendments to the interpretation Justice how of the statute. Koval Court’s the Cavanagh, Wilkes, holding 668 n ever, ignores 470 Mich our Neal v (2004): NW2d 648 Hawkins, recently explained People Mich v [A]swe acquiescence” (2003), “legislative 507-510; neither 668 NW2d may “be utilized to subordinate doctrine”

nor the “reenactment “Legislative acquiescence” has plain language of a statute.” “Michigan repeatedly rejected because courts this Court been words, Legislature’s its not from intent from [must] determine the Co, 243, 261; Donajkowski Alpena 460 Mich Power its silence.” statutory language Although, is where NW2d 574 may ambiguous, be a more useM tool reenactment doctrine Legis- construction, indication that the the absence of a clear “in prior adopt repudiate this Court’s to either or lature intended primary construction, to subordinate our there is no reason Legislature’s intent principle ascertain of construction —to examining language rule.” the reenactment the statute’s first —-to original.] [Emphasis in Id. at 508-509. 257.625a(6)(d) remedy for a violation omits a Because MCL for an to a reasonable Cavanagh’s Contrary inapplicable. to Justice doctrine reenactment remedy ambiguous Legislature argument, left do not hold that we provide Legislature did not Because the a violation of the statute. for remedy only statute, may not create in the we judiciary holding has power that the to create. Our has the jury regarding authority a violation to instruct the inherent remedy. does not create such statute 257.625a(6)(d) clearly Further, do not to MCL the amendments adopt Legislature’s through intention to words demonstrate Cavanagh errone- interpretation of the statute. Justice repudiate Koval’s 476 MICH436 Opinion op the Court language absence Notwithstanding statutory mandating a violation of MCL dismissal 257.625a(6)(d), trial court of Appeals Court charges of against held that the defendant dismissal Koval, of in required ruling was because this Court’s a interpreted previous This Court version of supra. 257.625a(6)(d) Koval, supra. case, In that the driving stopped defendant while intoxicated. Koval, supra at 456-457. failed officers to the of right indepen advise his to have an statutory test, contrary dent chemical the defendant’s .8 ght statute, previous version of the like the ri ously Legislature’s on focuses the silence rather than words. its We examining by interpret plain language the employing statute its statutory applicable arguing rules of In construction. that dismissal is the remedy 257.625a(6)(d), appropriate for a violation MCL of Justice Cavanagh disregards statutory the text of the and the of statute rule Legislature cannot construction courts assume that the inadvert- ently language portion placed omitted from one the it of statute that portion Monaco, supra another of the statute. at 58. It is Justice majority, disregard statutory not the that “chooses to of rules Cavanagh, ....” 473. construction Post at Further, reject Cavanagh’s holding we Justice contention that our fails give meaning word the “shall” in the statute. While Justice Cavanagh correctly argues right that the word “shall” indicates that the opportunity to a reasonable for an chemical test is manda- tory, Bather, consequences is not the this issue before us. the issue is what Legislature mandatory right the intended when this is violated. time, pertinent language provided At the of the statute as follows: “(3) person charged driving A with a vehicle while under the intoxicating liquor permitted of influence shall be to have a physician registered nurse, supervision licensed or under the of a physician choosing, of his own administer a test as provided in this section within a time reasonable after his deten- tion, and the of such results test shall be admissible if offered competent the defendant be and shall considered with other determining guilt evidence innocence of the defendant.

Any person charged driving with a vehicle while under intoxicating liquor of influence shall have to demand that Anstey People v Opinion the Couet of Court remedy. This version, provide did present statutory mandatory noncompliance held that against charges dismissal required requirement conclusion, reaching this 459. In Id. at the defendant. mandatory form of statute cited this Court the protection enacted for “was noted that statute operating charged with of a defendant and benefit intoxicating the influence under motor vehicle while 8.9 at 45 Id. liquor.” makes clear discussed, the text of the statute As of dismissal did not intend to a reasonable follow from violation Addition- chemical test. for an that neither the conclusion supports case law ally, our appro- is an nor suppression dismissal 257.625a(6)(d). In of MCL remedy for a violation priate 488, 512-513; 668 Hawkins, Mich NW2d exclusionary rule is (2003), held that the 602 this Court and deter police to sanction remedy designed “a harsh given him, provided provided for in this section must he the test reasonably such and the to administer facilities are available if offered results of such test shall be admissible competent in deter- and shall be considered with other mining guilt The defendant of the defendant. the innocence provided for in this of his to the test shall he advised [Koval, supra 455-456.] subsection.” 9 Appeals opinions Koval have held or decided after Several Court remedy recognized appropriate for a violation that dismissal is the See, chemical test. for an to a reasonable (2004), People Green, 392, 407; e.g., People App Mich 677 NW2d 363 v 260 (1996), Prelesnik, 173, 181; on App overruled 219 Mich 555 NW2d 505 v 118, 123-124; grounds People Wager, 594 NW2d 487 460 Mich other v (1994), 618, 620; (1999), Hurn, App 502 People 518 NW2d v 205 Mich (1991), 694, 701; People Dicks, App 500 v People 476 NW2d v 190 Mich (1989), Underwood, 31, 37; People Willis, App v 562 180 Mich 446 NW2d Burton, 600; (1986), and v 13 App 443 153 Mich 396 NW2d cases, along 203, 207; these App 823 We overrule Mich 163 NW2d with Koval.

448 476 Mich 436 Opinion of the Court misconduct where it has resulted in a violation of deleted.) rights constitutional . ..(Emphasis partially This appeal also involves violation of a statutory right, not a right.10 constitutional This Court “reaffirm[ed] that where there is no determination that a statutory violation constitutes an error of constitutional dimen sions, application of the exclusionary rule inappropri is ate plain unless the language the statute indicates a legislative intent that the rule be applied.” Id. at 507. Where there nothing in the statutory language indi cating that the exclusionary applies rule to a violation of statute, this Court should decline to infer such legis intent, lative because do “[t]o otherwise would be an exercise of will rather than judgment.” v People Stevens Remand), (After 626, 645; Mich 597 NW2d 53 (1999) (emphasis in original). This Court has repeatedly applied these principles in holding that suppression of the evidence is not an appropriate remedy for a statu tory violation where there is no indication in the statute intended such a remedy and no constitutional rights were See, Hawkins, violated. e.g., supra; People Hamilton, 465 526; Mich 638 NW2d 92 (2002), overruled in on part grounds other in Bright v Ailshie, Mich n (2002); NW2d 587 People Sobczak-Obetts, v 11 463 Mich 687; 625 NW2d 764 (2001); Stevens, supra. Applying similar reason ing, we hold that dismissal, which is an even more remedy, drastic is not an appropriate remedy for a process See our discussion opinion. of the due issue later in this Cavanagh’s puzzled by areWe single Justice decision to out our “analysis” Sobczak-Obetts, supra, distinguish it on its facts. We list Sobczak-Obetts, supra, only example as an of a case in which this Court suppression held that appropriate evidence is not an for a statutory violation where there is no indication in the statute that the Legislature remedy intended rights such a and no constitutional were Sobczak-Obetts, violated. We do not hold that supra, the statutes in are 257.625a(6)(d). similar to MCL vAnstey Opinion of the Court clearly provides the statute violation unless statutory MCL 257.625a does language otherwise. impose intended reveal of the evi- suppression or drastic of dismissal give a defendant dence when an officer fails chemical opportunity reasonable remedies is appropri- neither of these Accordingly, test. 257.625a(6).12 of MCL We overrule ate for a violation contrary.13 to the holding Koval’s shows that the But while the text of MCL 257.625a suppression intend that Legislature did not dismissal from a violation of subsection of the evidence follow 6(d), language of the statute does not render this agency’s in the face of a police Court to act powerless statutory right of a defendant’s to obtain violation evidence under MCL potentially exculpatory 12Further, suppression neither dismissal nor of the results police-administered appropriate chemical test is because these remedies position put prosecution if the officer’s in a worse than would Stevens, Moreover, improper supra conduct had not occurred. at 640-641. exclusionary inappropriate rule because the rule “forbids the use of misconduct," acquired governmental indirect direct and from relationship provide failure to and there is no causal between the officer’s a reasonable for an Sobczak-Obetts, police-administered supra at test and the chemical test. original omitted); (emphasis and citations see also Hudson 2159, 2163-2165; Michigan,_US_,_; 126 S Ct 165 L Ed 2d (2006). Finally, appropriate remedy suppression for a 64-65 is not an statute, because the loss of evidence should not be violation considering by preventing from more relevant evi remedied trial, truth-seeking sup promoting function at dence. Rather than “ ‘ truth-seeking “costly upon pression of the evidence exacts a toll” 2163; objectives Id._US_; 126 S Ct 165 L law enforcement ....’” Scott, 64, quoting Pennsylvania Bd Probation & Parole v 524 US Ed 2d 357, 364; Ct 141 L Ed 2d 344 118 S not, contends, “simply closethe books and Cavanagh as Justice Wedo Rather, inquiry” point. Post at 470-471. the remainder of end the at this determining opinion court what course of action trial our is dedicated to statutory may take violation occurs. when 476 Mich 436 Opinion of the Court

257.625a(6)(d). Through 257.625a(6)(d), the Leg- islature conferred on a statutory right defendants develop potentially exculpatory evidence to refute the a police-administered results of Thus, chemical test. when a police officer denies a defendant his or her statutory right to a reasonable opportunity for an independent chemical test by person administered his or her choosing, own prevents officer the defen- dant from exercising a statutory right to po- discover tentially favorable evidence in his or her defense.

The jury should be permitted weigh the police wrongful officer’s conduct as well statutory as the right that the officer denied. argues When before trial that he or she deprived of a reasonable opportu- nity for an independent chemical the trial court must determine, after an evidentiary if hearing necessary, whether the defendant was in fact deprived of this statu- tory If right. the court statutory determines that a viola- occurred, tion free, then it is upon request of defense counsel, to inform jury of this violation and instruct jury that it may determine weight what give to this fact. Such a instruction is an appropriate conse- quence for the violation of a mandatory statutory right to a reasonable opportunity for an independent chemical test it because will accord meaning to created in 6(d) subsection without creating a remedy that the Legis- lature did not intend. A jury instruction will also presum- ably deter police officers from violating that right in the future. We offer the following possible instruction for 257.625a(6)(d): violations of MCL provides Our law person that a who takes a chemical peace administered at a request officer’s given must be opportunity reasonable person to have a of his or her own choosing administer independent an chemical test. The defendant was denied such a opportunity reasonable for an independent may chemical test. You sig- determine what vAnstey Opinion Court deciding the case. For to attach to this fact nificance might of the defendant’s example, you consider denial for an to a reasonable whether, deciding light of the nonchemi test in chemical evidence, might an chemical test cal test such police- from the produced results different have test.[14] administered de- authority give such instruction

The court’s judiciary. Const powers from the inherent rives 6, 5, authority § with the art entrusts this Court and general governing practice rules duty prescribe Glass in all courts in the state.15 See procedure Remand), 464 Mich 266, 281; (After 627 NW2d 261 “ (2001). that under our form of ‘It is also well settled the judicial the Constitution confers on government to exercise its department authority necessary all the ” Mal- government.’ powers as a coordinate branch Co, donado v Ford Motor 372, 390; 476 Mich 719 NW2d 267, In PA 660, re 1976 (2006), 400 Mich quoting 809 (1977). 662-663; judicial powers The 255 NW2d diminished, may derived from the constitution not be exercised, other or interfered with branches Court, government. Lapeer Lapeer Co Clerk v Circuit Exercising 469 Mich NW2d authority, this our Court has enacted court rules that jury the trial court to instruct on the require the discretion to applicable give law and the court comment on the evidence: times, arguments

Before or after or at both as the court elects, jury applicable the court instruct on the shall proposed incorporates language from MCL This instruction 257.625a(6)(d). establish, by general modify, supreme “The court shall rules amend simplify practice procedure and in all courts of this state.” Const and 6, § 5. art 476 MICH436 Opinion Court

law, presented by case, and, party requests the issues if a (A)(2), provided party’s theory as in subrule of the case. court, discretion, may at its also comment on the evi- dence, testimony, and the character of the witnesses as 2.516(B)(3).][16] justice require. [MCR the interests of Additionally, has directed judiciary to instruct the jury on the and permitted law a court to comment on the evidence: duty judge

It shall be the proceed- to control all trial, ings during the and to limit the introduction of argument evidence and the of counsel to relevant and matters, material with a expeditious view to the effective ascertainment of the truth regarding the matters involved. The jury court shall instruct the as to the law applicable to the charge case and his make such com- evidence, testimony ment on the any and character of witnesses, opinion as in his justice may the interest of require. [MCL 768.29.]

Thus, the judiciary has the authority obligation under both court rule and statute to instruct on applicable law and the discretionary power com- ment on the evidence justice as requires. Legisla- ture has not stripped the judiciary of these powers this context.17 16 procedure require The rules of criminal also the trial court to jury applicable

instruct the on the law: closing arguments waived, After are made or the court must jury required appropriate, instruct the as and but at the discretion court, parties, may the and on notice to the the court instruct jury parties closing arguments, before give any make and appropriate argument. jury further instructions after After delib- begin, may give erations the court additional instructions that are 6.414(H).] appropriate. [MCR 17 situations, Legislature In some has forbidden a trial court from instructing jury regard example, to certain matters. For a trial may court damages not instruct on the products limits on noneconomic liability 600.2946a(2) malpractice and medical actions. MCL and MCL Anstey People y 453 Opinion of the Court in our case law that It is also well-established jury trial instruct on the law applicable court must the case: to facts of

“ duty judge [I]t of the circuit to see to it that the manner, jury goes intelligent to the in a clear and so case they may understanding have a clear and correct decide, they he what it is are to and should state to them fully Especially applicable the law facts. is this his 367, duty [People Henry, in a criminal case.” v 395 Mich 373-374; (1975), People Murray, quoting 236 NW2d 489 v (1888).] 10, 16; 72 Mich 40 NW 29 jury only The trial court must instruct on all charged offense, also, upon elements but issues, defenses, request, on material and theories supported by are the evidence. v Rod- People 466, 472-473; (2000); riguez, 463 Mich 620 NW2d 13 Reed, 342, 349-350; v Mich 224 People 393 NW2d 867 (1975). trial authority

The court’s to comment on the evi- dence encompasses power summarize the evi- issues, relating jury’s dence to the call the attention to Lintz, particular facts, 603, 617; v People Mich (1928), “point important testimony NW 201 out the to lead the jury understanding so as of its Fuller, bearings,” Richards v 38 Mich trial impartial, court’s comments must be fair and Lane, 625, 627; (1936), v 274 Mich Burpee NW 484 the court should not make known to the its issues, regarding disputed own views factual v People 554, 558; (1961), 364 Mich Young, NW2d witnesses, Clark, credibility 340 Mich 600.6304(5). authority has not restricted the trial court’s give jury instructions in the context of a violation of MCL 257.625a(6)(d). 476 MICH436 Opinion of the Court 420-421; (1954), question NW2d the ultimate Lintz, to be jury, submitted to the supra 617-618.18 The instruction we offer falls within the court’s inherent authority jury to instruct the on law applicable to the discretionary case and the power to comment on the evidence.19A defendant who is denied the statutory right to a opportunity reasonable for an independent chemical test aby person administered his or her choosing may own advance the defense that the police-administered inaccurate,20 test was and that 18 People Ward, 624, 628-629; (1969), In v 381 Mich 166 NW2d 451 this explained authority jury Court that the court’s to instruct discharged separately: comment on the evidence must be judge’s authority jury trial twofold to instruct the on the upon evidence, testimony, law and to make such comment as, opinion, justice and the may witnesses his the interest of

require discharged separately. is severable and must he When a judge upon trial affirmatively. instructs the law he must do so So jury concerned, far judge says as the the law is what the it is. They duty have the to follow his instructions on the law. upon evidence, As to the court’s comment such comments bindingupon jury. They are not jury’s duty do not delineate the they prefaced by jury must be words which leave the free to disregard good them in conscience. not, states, We do as Justice Weaver “rewrite the statute from the holding bench.” Post at 467. Our authority that the court has the instruct usurp the statute was violated does not Legislature’s authority by supplying remedy that does not exist Eather, holding statute. power our is based on the inherent judiciary to instruct on the law and comment on the evidence. 20Justice CAVANAGH is incorrect that “the defendant is left with absolutely meaningful way prosecutor’s chemical evidence refute against (emphasis original). him in a criminal trial.” Post at 476 An only way may chemical test is not the challenge a defendant accuracy pohce-administered Trombetta, test. See v California (1984) 479, 490; 467 US (listing S Ct 81 LEd 2d 413 alternative ways in challenge which the defendant Intoxilyzer could the results of the test). example, may For a defendant introduce evidence that the machine People Anstey Opinion of the Court him or her of the police deprived through doubt of guilt indepen- raise reasonable dent The trial court and inform the may test. instruct 257.625a(6)(d) and jury requirements on the of by bringing comment on the evidence to the properly jury’s statutory right attention that the defendant’s has been Such an instruction will com- impartial violated. outcome, and no opinion compel municate but will only jury inform the of the law and the facts and allow Thus, jury the to draw its own conclusions. it will not upon jury encroach the exclusive province weigh testimony the and draw inferences therefrom. (in breathalyzer) used to administer the chemical test this case a improperly may calibrated or maintained. A defendant also adduce evidence, testimony toxicology expert, nonchemical such as the of a give expert opinion body who can an on the defendant’s alcohol level based on the number of drinks the defendant consumed over course Despite by dissent, of time. the concerns raised the article cited the Supreme recently opined the Hawaii Court has more that the “Wid formula,” body mark which estimates an individual’s alcohol level weight gender, type alcohol, based on and and amount of absorption rate, “widely rate and the elimination viewed as reli 94, Vliet, 112; Further, able.” State v 95 Hawaii 19 P3d 42 extrapolation “range” body of a within which a defendant’s alcohol very helpful, by jury, by raising level falls could be if believed operating reasonable doubt that defendant was a motor vehicle Preeee, See, e.g., an unlawful blood alcohol level. State v P2d 971 (Utah 1998) 1, (holding App, 7-8 trial court committed error requiring permitting reversal the defendant to introduce that, formula,” body under the “Widmark his alcohol level legal stopped by could have been below the limit at the time he was police). Moreover, challenge accuracy police- a defendant can itself, administered chemical as as well the method which it was operated Thus, sample. when the obtained his or her breath contrary assertion, police-administered to the dissent’s the results of a Trombetta, See, “indisputable.” e.g., supra chemical test are not at 490 (noting Intoxilyzer challenged that the results of an test can in a he calibration, variety ways, including “faulty of extraneous interference error”). measurements, operator with machine and Mich 436 Opinion of Court 420, 430; (1951); Larco, Mich 49 NW2d 358

People v 639; 141 NW(1913). 632, Mich People Dupree, 175 judiciary’s will also advance the Such instruction ascertaining the truth. The duty to assist goal late D. once stated that “the of Joseph Grano role in discovering play the truth should dominant designing govern procedure.” the rules criminal (Ann Truth, Grano, Arbor, and Confessions, the Law University Michigan Press, 1993), of p see also Grano, objectives re Implementing procedural of Michigan Rules Criminal proposed form: of 1007, I, Wayne Procedure — Part L R (1986); Grano, issue: Introduction —The Special changed changing world constitutional criminal The contribution Jus procedure: Department 22 U Mich L Legal Policy, tice’s J Reform Office of analyzing underlying 402-404 In the purposes objectives reform, and of procedural Grano stated: objective primary procedure

[T]he of criminal is to extent, facilitate the ascertainment of truth. To some therefore, encompass fairness must this concern. Accord- ingly, they provide rules are unfair when do not either party adequate opportunity develop present and his special defendant, case. The concern with fairness for the however, special stems from the abhorrence of erroneous Thus, agreement conviction. basic exists that a rule is unfair if it the adequate opportunity denies defendant an [Grano, against charges. defend Implementing the the objectives procedural proposed Michigan of reform: I, Wayne Rules Criminal Procedure —Part 32 L R (1986).] the Promoting truth-seeking process is one of the judiciary’s primary goals determining appropri- the party prevents ate action to take when one the other obtaining from evidence. Justice ex- MARKMAN has that plained discovery “[t]he of the truth is essential to Anstey Opinion the Court mechanisms for system’s operation the successful Mark- consequences.” its controlling mitigating crime and in criminal Foreword: The “truth issue: man, Special (1989).21 series, U Mich J L Reform justice” fact-finder, the the By all the facts before placing of the truth pursuit instant instruction will further 257.625a(6)(d). real effect to the MCL give premise of our promote This instruction will basic less, more, rather than justice system, providing information generally jury discovering assist the will the truth. It communicate an accurate account will jurors apply and allow the the law to transpired what they the facts decide. evidence or a witness is as Where unavailable or because of the conduct of compromised officers, keep the court should not prosecutors more evidence rather away jurors, from the but should all information, give jurors pertinent including them, what has been denied to and allow them to assess consequences.22 reject charges Cavanagh’s argument We Justice that dismissal of the truth-seeking process allowing jury to consider better serves the than statutory right opportu the violation of the defendant’s to a reasonable nity merely prevent for an chemical test. Dismissal does (as jury considering suppression from evidence relevant would), jury considering charges prevents but it from altogether. Such a ensures that the truth will never bediscovered. Conversely, gives jury instruction that the statute was violated gives information. The instruction all of the available relevant by arguing adequate opportunity defendant an to defend himself police-administered inaccurate and that an test was produced a would have different result. 257.625a(6)(d) procedural obligation Additionally, places on police to enable a defendant to obtain relevant evidence. Police obligation they agencies breaching if from this under will be deterred jurors may statutory violation at trial. An stand that consider the statutory only give instruction not concrete effect to a defendant’s will independent deter future to secure an chemical but it will arbitrary police power by limiting the extent to which the state use of 476 Mich 436 Opinion of the Court

Prohibiting instructing jury the trial court from the 257.625a(6)(d) regarding keep a violation of MCL would the the jury by concealing relevant information from denial of the statutory right develop poten- defendant’s only evidence. tially exculpatory impede Not would this truth, jury’s permit police the search for the but it would ignore mandatory statutory right officers to defendant’s to a reasonable for an independent chemical aby person choosing test administered of his own without Thus, consequence. light general of our power cases, instruct and comment on the criminal goal truth, and the trial’s of promoting the search for we circumstances, conclude that in these narrow the courts may give jury informing instruction that jury 257.625a(6)(d) was violated. wrongdoing.

benefits from its own But unlike the harsh remedies of suppression dismissal, jury “punish” instruction will not seek to police agencies, give jury but will rather relevant information that they may rendering consider when their verdict. Cavanagh’s reject We Justice statements that the instruction “encour- 257.625a(6)(d) ages” police police to violate MCL “reward[s]” violating Contrary the statute. Post at 480 & n 6. to Justice Cavanagh’s argument, meaningful consequence, an instruction is a jury police inappropriately by because it makes the aware that the acted violating Making jury police the statute. aware violated the way “encourages” police. in no law or “rewards” the Cavanagh Further, argues statutory Justice that a violation of the independent puts superior to an chemical test “in a position they trump indisputable because hold will card of chemical (emphasis original). argument n evidence.” Post at 480 6 That contains Cavanagh First, wrongly two flaws. Justice assumes that the results of chemical test would have been favorable to the defen- if dant. Even the results of the chemical test would have prosecution, been favorable to the the instruction allows to make they statutory violation, including finding what will of the independent chemical test would have been favorable to the defendant. Second, police-administered “undisputable” many ways challenge chemical evidence. The defendant has effective opinion. this See n 20 evidence. of this People Anstey v 459 Opinion of the Court a may give the trial court we hold that While is a violation MCL where there instruction necessarily 257.625a(6)(d), appro- is not an instruction every statutory right where for a violation of priate in remedy. appropriate a It is provide does not statute statutory right to the meaning it gives this case because chemi- for an a reasonable to of his or her own person test administered cal to judicial power choosing and is consistent with the evidence the law and comment on instruct on application limit instruc- justice. interests of We to the statute at issue. tion

B. DUE PROCESS of the violation argues Defendant 257.625a(6)(d) process right violated his due also dispute whether parties a defense. Because present and Justice CAVANAGH violation occurred constitutional violated, rights due were argues process that defendant’s the lower despite the constitutional issue we address any on consti- rulings decisions not to base their courts’ only address the constitu- tutional violation.23But we on the correctness of opinion tional issue and offer no that the officer violated the ruling the district court’s statute, case. because that is not at issue this request go to Watervliet The district court held that defendant’s reasonable, denying Hospital so the officer violated the statute court, stating process request. trial while that “a due defendant’s perishable implicated. .. it relates to issue is since constitutional analysis evidence,” ultimately “[a] constitutional is not held that Unpublished statutory required, [dismissal] is clear.” since the Court, 20, County April opinion issued the Berrien Trial (Docket 8, Appeals 2003-411091-SD), slip op The Court of 9. No. issues, holding any instead that did not address constitutional also violation of the because of the officer’s dismissal was warranted statute. MICH436

Opinion of the Court A criminal defendant has a right present defense under our state and federal Const, constitutions. US VI, XIV; 13, 17, 20; §§ Ams Const art People v Hayes, 271, 278; Mich 364 NW2d 635 “[T]he present a defense is a fundamental element of due process .. . .” Id. at In Pennsylvania Ritchie, 279. 39, 56; 480 US 107 S Ct 94 L Ed 2d (1987), stated, United States Supreme Court “Our cases estab lish, minimum, at a that criminal defendants have the right to . . . put before a might evidence that influence the guilt.” determination of

Under the Due Process Clause of the Fourteenth Amendment, prosecutions criminal comport must prevailing notions of fundamental fairness. long We have interpreted this standard of to require fairness that crimi nal defendants be meaningful afforded a opportunity to present complete safeguard defense. To right, that Court developed might loosely has “what he called the area constitutionally guaranteed access to evidence.” United Valenzuela-Bernal, States v. 458 U.S. 867[ 102 S Ct (1982). 3440; 73 L Ed 2d together, 1193] Taken group this privileges constitutional exculpatory delivers evidence accused, into the thereby hands of the protecting the innocent from erroneous conviction ensuring and the in tegrity justice system. of our criminal v Trom [California betta, 479, 485; 2528; US 104 S Ct 81 L Ed 2d 413 (1984).] Defendant argues that his due process right to obtain potentially exculpatory evidence was violated under Arizona v Youngblood, 51; 488 US 109 S Ct L102 (1988), Ed 2d 281 because the officer acted in bad faith in denying request defendant’s to be taken to Waterv- liet Hospital for an chemical test. We disagree. In Youngblood, 57-58, supra the United Supreme States Court held that government’s fail- ure to preserve potentially exculpatory evidence vio- lates a criminal process defendant’s due rights if the Anstey People v Opinion Court govern- part can faith on show bad it involves because Youngblood distinguishable ment. is existing failure to disclose evidence government’s case involves defen- where the instant possession, its evidence exculpatory develop potentially dant’s to process For due government’s possession.24 not in the failing a crucial distinction between there is purposes, failing developed that has been to disclose evidence develop to the first instance. 701, 705; 58 Mich 228 NW2d 527

Stephens, App holding Youngblood cited no cases Defendant has government when the fails progeny apply its Be- yet developed. evidence that has to be turn over involves, develop case the failure to cause instant evidence, existing as to the failure to disclose opposed evidence, inappli- Youngblood the bad-faith test cable. a defense was not vio- present

Defendant’s duty lated have no constitutional police because developing potentially exculpatory assist a defendant in Just as the have no constitutional evidence. tests, any Youngblood, supra duty25 perform Cavanagh argues develop evi Justice the defendant does test, apparently independent he or she takes an dence when in the defendant’s blood because the defendant’s blood and the alcohol sought, however, already exist. The defendant was not his own blood, measuring in his blood but the results a test the alcohol content Cavanagh that these he arrested. Justice fails to see at the time exist, simply administered. do not because the test was never results 25 Cavanagh phrase quibbles with our use of the “constitutional Justice wording any explanation duty.” Though of this would be we did not think Cavanagh duty,” needed, clarify that “constitutional we we for Justice duty police a to honor the defendant’s constitutional mean that have duty,” phrase rights. nothing misleading about the “constitutional We see See, Supreme Court has used this context. which the United States (“the Youngblood, supra police e.g., do not have a constitutional at 59 293, tests”); States, any duty perform particular v United 385 US to Hoffa

462 476 MICH436 Opinion of the Court 59,26 at they have no duty constitutional to assist the defendant an obtaining independent chemical test.27 See, e.g., Martin, In re 509, 512; 801; 58 Cal 2d 374 P2d (1962) (in 24 Rptr Cal holding that police are not required to assist a defendant in a obtaining chemi- cal the California Supreme explained Court “police officers are not required to take the or initiative even to assist in procuring evidence on behalf of a defendant which is deemed defense”); to necessary his People Finnegan, 53, 58; 758, NY2d 647 NE2d (1995) (“law 623 NYS2d 546 personnel enforcement are required to arrange for an independent test toor transport defendant to a place person or where the test may performed” be because “police have no affirmative accused”). duty gather to or help gather evidence for an Thus, the police have no constitutional duty to take affirmative action to transport the defendant from the place of his her incarceration to a hospital of his or her choice for requested Choate, test. State v (Tenn 1983) (where SW2d Crim App, 310; (1966) (“Law L S Ct 17 Ed 2d 374 enforcement officers are duty under no constitutional investiga- call a halt to a criminal ....”). tion 26 Youngblood,supra In Supreme the United States Court stated argue “the defendant is free to to the finder of fact that a breathalyzer might exculpatory, police have been but the do not have duty perform any particular constitutional tests.” attempting distinguish In Finnegan case, Cavanagh Justice 257.625a(6)(d) plain language states that the of MCL creates an affirma statutory duty police tive on behalf of the to assist a defendant in obtaining independent Cavanagh chemical test. Justice relies on the language indicating in the statute given that a defendant “shall be opportunity” person reasonable to have a choosing of the defendant’s administer here, however, chemical test. The issue requires whether the constitution that a defendant have reasonable to obtain an parties chemical test. Because the violated, have conceded that the statute had been we need not address duty whether the statute creates an affirmative on behalf of the obtaining assist a such a test. Anstey Opinion the Court argued constitutional that he had a defendant independent obtaining police chemical an assistance complied the statute or not he test whether requiring police-administered test, the him to take a [consti- “affirmative have no held that the court duty tutional] available to make a blood test place by transporting of his him from defendant test”). requested hospital for the incarceration to a did not in the instant case Thus, the officer’s actions rights process the of- because due violate defendant’s duty defendant to assist ficer had no constitutional by transporting independent obtaining chemicaltest an Hospital.28 defendant to Watervliet IV CONCLUSION Legisla- statutory reflect that the text does not suppression of the intended either dismissal ture a violation of MCL to be the for 257.625a(6)(d).Accordingly, Koval and its we overrule jury permissive progeny. in- Instead, we hold that a may appropriate the trial court has when struction be of MCL there was violation determined 257.625a(6)(d). established When of a defendant to seek an allow that defendant to use the test it intended to produced prosecutor at trial. A to rebut evidence right by give meaning to that instruction will including require- placing information, all relevant statute, the fact-finder. Such an before ments appropriate func- in this circumstance is instruction only analysis, Further, although necessary for our the officer not not gave opportunity chemical test at Lakeland for a second defendant an hospital. transport to the Defendant Hospital, he offered to transportation to avail himself of the chose police- Hospital for a second chemical Lakeland test. administered Mich 436 Opinion Weaver, judicial power integrity

tion of the that will ensure the pursuit of the criminal trial and further process right truth. Wealso hold that defendant’s due present a defense was not violated. judgment Appeals

We reverse the of the Court of and remand the matter to the trial court for rein- charges against statement of the trial, defendant. At police-administered the results of the chemical test may admissible, shall be but the trial court instruct statutory the right that the violated defendant’s opportunity independent

to a reasonable for an chemical test. J., C. Young JJ., concurred

Taylor, and Markman, and J. with Corrigan, oconcurring part dissenting J.

WEAVER, part). operating Defendant herein was arrested for a vehicle while intoxicated, a violation of MCL 257.625. arresting request, agreed At the officer’s defendant prosecutor take a chemical breath test. The has con- ceded opportu- that defendant was denied a reasonable nity independent second, to have a chemical test a person choosing. of his People

Pursuant to this Court’s decision in Koval,1 v Appeals the Court of affirmed the trial court’s dismissal charges against defendant on the basis that he had request independent been denied his reasonable for am test. majority’s opinion

I concur with the result overruling progeny,reversing Koval and its the Court of Appealsjudgment, remanding to the trial court to charges against reinstate defendant. 371 Mich 124 NW2d 274 Anstey Opinion Weaver, join portion decline to that

However, I dissent and remedy when creating majority’s opinion for unreasonably denied instruct test, may trial court an its Rather, that Koval —with that effect. now jury to of drunk remedy of dismissal created extreme judicially overruled, I it to would leave cases—has been driving it to revise whether wishes Legislature to consider 257.625a(6)(d) violation of remedy for supply so, In should doing that subsection. as it issues exist any whether constitutional consider defendant, an who has the interest of accused balances the violation of the statu- been provided tory right impaired drivers off safety keeping interest

public policy matter of public the roads. This is a ability, decide it has the Legislature should because case, public in to hold deciding unlike this Court this all an for those hearings provide and to information on differing possessing views and holding information their views and the wisest course share Legislature. 257.625a(6)(d) that a defendant who provides chemical test “shall be police-administered takes a an to have given opportunity” a reasonable However, the the defendant. by person a selected avail- any remedy did not was Legislature specify denied an unreasonably op- is when a defendant able Court test. Because this for an portunity remedy the extreme of supplying in Koval in erred 6(d), Court is of this dismissal for a violation subsection Koval. affirmatively overrule deciding correct in Detroit,2 to over- under Robinson appropriate It is decided, and wrongly Koval was rule Koval because 439, 464-465; 613 NW2d 307 462 Mich 476 Mich 436 Opinion by Weaver, J. practical workability, defies and because reliance inter- overruled, if ests will not undue Koval hardship suffer longer and in the law or changes justify facts earlier decision. The 1963 version the statute did not provide remedy, a but it had a mandatory requirement that the be his or her right advised of to take an independent factors, test. Because of these two convicted, because the defendant had been already Koval Court deemed that it had to apparently supply remedy only and that remedy available was dis- missal.

I note that the Koval while decision was rendered the early during 1960s an era society when was not as vigilant drinking about curtailing our driving, present-day perspective has changed remarkably. Rec- ognizing Legislature that our has interest ensur- ing public safety keeping impaired drivers off the roads, we look to the language must statute order if discern, possible, legislative intent.

In determining case, such intent in it this is apparent Legislature that the it aware that had the option supplying some kind of remedy for violation of sub- 6(d) section because the supplied remedy in another subsection of MCL Specifically, 257.625a. if a prosecutor to comply fails with subsection 8 of MCL 257.625a, available to a defendant violation of that subsection is suppression the results of the state-administered test.3 Leg- Had the 257.625a(8) provides:

3 MCL (6) administered, If a chemical test described in subsection is person charged the be test results shall made available the to person’s attorney upon request prosecution, written to the copy request prosecution with a filed with the court. The days day shall furnish the results at least 2 before of the trial. prosecution offer shall the test results as evidence in that Anstey by Opinion Weaver, of for a violation remedy comparable intended islature 6(d) remedy of drastic the more even subsection —or has the only Not specified. could have so dismissal —it remedy for a violation provide to declined Legislature fact, Legislature specified 6(d), in but of subsection (6) relating to of subsection provisions “[t]he that any introduction not limit the testing do chemical of . . . .” admissible other an showing statutory language of absence Given any, if remedy, to what specify intent to a statutory right of this denial imposed upon to be test, an obtain opportunity reasonable showing statutory language presence given on other can proceed a prosecutor an intent that for this Court evidence, improper it was nonchemical from the bench. the statute Koval to rewrite created extreme judicially its that Koval —with Now been driving cases—has of drunk remedy of dismissal it consider whether overruled, Legislature should 257.625a(6)(d) remedy supply to revise MCL wishes so, doing Legis- In subsection. for violation is- constitutional any consider whether lature should interest of an accused exist as it balances sues defendant, provided who has been an statutory right violation keeping interest safety public with the of public is a matter the roads. This drivers off impaired Court, should this Legislature, policy Court ability, unlike this it has the decide because hearings and to case, public to hold deciding this differing holding for all those provide comply request the admission fully with the bars trial. Failure prosecution. [Emphasis added.] into evidence the results added). 257.625a(7) (emphasis 476 Mich 436 Dissenting Opinion Cavanagh, views and on possessing information the wisest course to share their views and information the Legisla- ture. J. (dissenting). Today majority the takes CAVANAGH,

its most recent stride in eroding statutory rights constitutional criminal of defendants. Despite the Legislature’s clear intent the right bestow issue, majority elects divest this Court of the ability to redress a right. violation Faced with a complaint that a officer prohibited defendant from exercising legislatively his sanctioned constitu- tional to an right test, independent chemical the ma- jority’s magic wand an opinion makes the right disappear. Today’s edict puts Michigan on citizens no- tice that when the Legislature grants explicit right —indeed, one with a constitutional dimension —but fit sees to leave the for violating right that to a discretion, court’s is right really right at all. The provides “consolation” the majority ability is the to tell jury right that was violated. So drivers be Although Legislature warned: our decided you that have an indelible a right requested to reasonably inde- pendent this Court finds that if you attempt right, to exercise that the decision whether you permitted are to do solely so rests the hands of your jailer. If that person decides, for good reason, bad reason, all, or no reason at deprive you that right, so be it. Thanks majority’s to the continued plod through law, the volumes of our there are no meaning- ful consequences decision, to that so we have now amassed another worth not paper Legis- lature it printed on.

The Oz-like curtain majority behind which the hides pronouncement is its that because the did provide remedy, are powerless courts to enforce People Anstey Opinion by Dissenting Cavanagh, J. rectify violation, than a court statute. Rather nonmandatory jury only instruc- make available can violated, which tells the tion that spite purpose.1This remedial serves no instruction Legislature’s purposeful of the word “shall” use bestowing right. legislature purpose- A when “mandatory” right intending fully at the enacts while would be an odd one time that it not be enforced same goes job Thus, trash bin the tenet that the indeed. to the implement legislative is to and intent of a court discern no was intended flies to hold that enforcement because Legislature logic. face of does not in the all When the remedy mandatory particular specify for of a a violation adjudicate right, fair it is on this Court to a incumbent legislative just in as best accord with resolution possible. remedy actually, not intent as theoretically, should suppositionally, rectify

hypothetically, or way truly providing a to the violation. But instead remedy the of a defendant who was denied his situation mandatory an

majority merely powerless, this declares Court shroud- ing a of its decision the veil of unreasonableness jury negligible instruction of force. oft-repeated direct mantra

In contradiction its changed rewritten, or can that word in a statute be majority the statute of concern. does indeed rewrite 257.625a(6)(d) person a states that a who makes request an chemical test reasonable for given procure “shall” be a reasonable Notably, choose did not the word one. “may” “might.” “shall,” “can” It with all its or chose implications. consequent mandatory This Court has 1 calling proposed majority carefully a avoids its instruction although permissive jury “gives “remedy,” a instruction it claims right. n meaning” to the Ante at 457 459. effect” “concrete 476 Mich Dissenting Opinion Cavanagh, permissive. See, held that “shall” is not

repeatedly 82, 87; e.g., People Francisco, Mich 711 NW2d (2006); Hosp Burton v Mich City Corp, Reed 745, 752; (2005); Pollak, 691 NW2d 424 Scarsella v 547, 549; (2000); Mich 607 NW2d 711 Oakland Co (1997) 144, 154; v Michigan, 456 Mich 566 NW2d 616 J.). To (opinion by hold that there is no KELLY, meaningful violating mandatory right for a directly unambiguous contravenes rule of con struction that no in a can word statute be rendered nugatory. a

Preventing enforcing court mandatory from this by truly statute a remedying violation of it not only rewrites statute but does immeasurable violence legislative failing intent. By permit meaningful remedy for a violation of the statute be- stows, majority changes shall “[you] given be opportunity” reasonable to “it if you does matter get opportunity, you but can ask that be you if doing so, told did not.” In majority fully Legislature’s emasculates the clear intent to create a mandatory requirement, mandatory right with meaningful no remedy for its violation is no all.

The majority reasoning part bases its on the fact 625a(8) §in statute, that of the Legislature the speci- a fied for remedy violating that subsection. Ante at the 443-444. Had Legislature remedy intended a for 625a(6), § reasons, the majority then it would have 625a(8). provided § one like it did in I am not distracted, as is the majority, by path resistance, that of least for statutory analysis is neither one-dimensional nor nec- essarily simplistic. comparison When to another statute does not answer the question remedy whether intended, this Court not simply should close the books y Anstey People 471 Dissenting Opinion Cavanagh, J. on us Rather, it is incumbent inquiry.2 and end to us until and tools available additional rules use the And additional legislative intent. those we discern Leg- The used, to this conclusion: mechanisms, if lead dismissing the remedy is satisfied with islature request makes a a defendant reasonable charges when right. and is denied that for an discerning recognizes that ostensibly majority The statutory con- goal intent is the primary legislative duly majority Ante at 442-443. But while the struction. remedy for Legislature specify did notes that statute, that the refuses to also consider violating it repudiate longstanding has declined to Legislature in the remedy some other remedy specify of dismissal or it has the statute years over 43 that amended times Koval, 453; 124 v 371 Mich since our decision Koval, course, held that In we NW2d violating remedy for proper dismissal was 625a(6)(d).3 that Legislature § It repeating bears Sel-Way, law. Inc presumed to know of our case Gordon Bros, Inc, 488, 505-506; Mich 475 NW2d Spence (1991). Nonetheless, over, deliber- 12 times it has leave while ately holding place, chosen to this Court’s substantial, other, at to the law. making changes times Thus, indeed, us, on perfectly logical, it is incumbent legislative majority on its does indeed close the books search for statute, finding remedy despite explicit in the that it intent after “nonremedy remedy” to craft its of a instruction. See continues on n 17. ante at 452-453 incorrectly majority mistakenly the Koval Court asserts remedy despite the statute clear that the found a that “the text of makes remedy from a did not intend the of dismissal to follow considering of the statute. at 447. But text violation” Ante conveys mandatory right, dismissal was this Court found that statute so, desperately Although majority appropriate. tries to do mandatory right simply separated from the cannot be nature violating right. determination of what exists 476 Mich 436 Opinion by Dissenting Cavanagh, J. that any

conclude has not sensed ur- gency invalidating either in the Koval or incor- decision we found porating prudent Koval because through its intent is out that being precedent. carried the Legislature Because has not acted to invalidate Koval, despite having years opportunities over so, do must it presume we is satisfied with what this Court did that case.

In stark contrast to this our majority, United States recognizes Court Supreme reenactment doc- a legitimate trine is tool to in determining legis- assist Denver, lative intent. Bank Central NA v First Inter- Denver, NA, 185; state 164, Bank 511 US 114 S Ct (“When (1994) 1439; L Congress 128 Ed 2d 119 reen- statutory acts language given been a has consistent construction, judicial we often adhere to that construc- tion in interpreting statutory reenacted language. See, Corp States, Keene v. e.g., 200, United 508 U.S. 2035; [1993]; [113 212-213 S Ct 124 L Ed 2d 118] Pierce Underwood, v. 552, 2541; 487 U.S. [108 S Ct 101 L Ed [1988]; Pons, 490] 2d Lorillard v. 434 U.S. [1978].”). 866; [98 580-581 S Ct 55 L Ed 2d 40] See also Rutherford, United v 10; States 442 US 554 & n S Ct 61 L Ed 2d 68 majority’s choice ignore, alternatively misapply, the reenactment plainly doctrine it illustrates that is not interested in truly discerning legislative intent but is satisfied with reaching using decision all less than available mecha- Unjustifiably, majority nisms. deprives a defendant ability of an her rights have violation his or merely personal rectified because it has aversion to widely utilized rule. reenactment But applying this perfectly applicable statutory tool of construction not only provides assistance, needed interpretive but also assists in reaching indubitably a conclusion that is more logical than the majority. one reached Put Anstey Dissenting Opinion Cavanagh, the to refusal account way, majority’s the another through invalidate Koval decision not to Legislature’s that a holding in a results multiple its reenactments meaningful has mandatory right no given the taking But into account for its violation. remedy in the in Koval change choice result Legislature’s that 1963 the statute since its 12 reenactments of con- inescapably in the more sensible decision results the exist, indeed and that remedy that a does clusion set in Koval. is that which this Court forth remedy the would be so by its view that Misguided interpre- as to fail to correct erroneous inefficient so law, disregard majority chooses to tation of the this of a deprive drivers statutory rules of construction right. mandatory addition, fundamentally misunder- majority

In workings the reenactment doctrine stands the of Wilkes, Mich in Neal misapplying its statements majority The 661, 668 n NW2d inapplicable that the reenactment doctrine is claims 257.625a(6)(d) to MCL here “the amendments because through Legisla- clearly do not words demonstrate interpre- repudiate intention to or Koval’s adopt ture’s majority 445 n of the Ante at 7. tation statute.” repudiate failure to point: Legislature’s misses any Koval in of 12 amendments the statute majority that Koval. If the accepted clear indication it wording overt to that that there be some means must doc- effect, majority then the renders reenactment obviously Legisla- completely trine useless because words, clear from intent would then be its ture’s repudiate meant to adopt whether it determination necessary. would be the case I that lines, states majority the same

Along that statutory “the rule of construction disregard 476 Mich 436 Dissenting Opinion by Cavanagh, assume the Legislature courts cannot inadvert- ently omitted from one language portion statute it placed another portion statute.” Ante added). First, 446 n 7 I (emphasis do not believe that the Legislature “inadvertently” Rather, omitted anything. doctrine, in accord with the used I widely reenactment the Legislature very conclude that advertently accepted necessary Moreover, found we Koval. I solely rely choose not on the rule statutory construction the cites at majority expense ignor- ing other that can applicable analysis. rules aid The majority’s selective use of rules construction is transparent.

Further, cites majority Neal for the proposition that the reenactment doctrine is a tool useful of statu- tory interpretation when statutory language ambigu- is ous. Ante at 445 n majority 7. The must believe that the language of the ambiguous statute issue here is because it sanctions a jury despite recogniz- instruction ing that is clearly permitted none in the of language the I, too, statute. believe the remedy that to be afforded defendant who is divested of his mandatory right was initially ambiguous left by the Legislature. The differ- ence the approach by majority taken the and the dissent is that the majority ignores an applicable rule of construction that would lead to the conclusion that dismissal is the I proper remedy, while would employ it.

Clearly, majority’s attempt the to circumvent reen- the actment doctrine is soundly based.

The majority also unconvincingly attempts to dis- claim that important consideration this is the case mandatory of right nature to an independent chemi- cal test. See ante at 446 n 7. I fail to see how we can determine best remedy what alleviates a violation of right this without first determining the level of entitle- People Anstey v Opinion by Dissenting Cavanagh, instance, police if the had For right. to the ment for an inde- request to honor a discretionary authority (and no if there were constitu- chemical test pendent it is right), a denial of that then of tional ramifications would be proper means that certain made this Legislature fact that dismissal. But the on weigh, heavily mandatory weighs, should analysis. between this The also asserts a correlation majority Mich Sobczak-Obetts, 463 case and finding (2001), on that case to avoid relying NW2d In remedy for the current defendant. an available and Sobczak-Obetts, violated 780.654 an affidavit by failing produce with 780.655 used the defendant’s valid warrant to search otherwise argued that she Notably, home. the defendant never right. See Sobczak- deprived of a constitutional Obetts, n 9. In of Appeals, at 697 the Court supra producing the affidavit was statutory requirement “ ministerial than a duty characterized as ‘more ” “ barely to the right’ ‘only relating] substantive ” protect.’ Id. at seeking J.). quoting App Mich 503-504 (HOEKSTRA, majority agreed elaborating that description, statutory requirement “procedural require- is a police during followed ment[] [is] be facially of an otherwise valid search after execution Sobczak-Obetts, (emphasis at 707-708 supra warrant.” affidavit, original). requirement producing view, “ministerial,” at in the was id. majority’s id., “technical,” Thus, id. at 712. “administrative,” and no legislative found that there was majority because of a search support suppressing fruit when “technical,” that was had committed violation search, cause for probable did not diminish the 476 Mich 436 Opinion by Dissenting Cavanagh, rights, violate did not the defendant’s constitutional provide remedy. declined to majority one Despite agrees majority’s whether Sobczak-Obetts, reliance analysis any on case is drastically misplaced. bestowed 257.625a(6)(d) “technical,” “ministerial,” hardly is Rather, “procedural.” an inde- exercising 625a(6)(d) § pendent gather test under physical bodily only evidence is the away physically driving restrained drunk can such suspect obtain evi- Moreover, just important, dence. as that indepen- dent the only test result is evidence available to a defendant to police gather by refute evidence the taking their own chemical tests. Equally important, evi- perishable, extremely dence is so once the short window of in which time a defendant can obtain the evidence elapses, that evidence is forever unavailable. result is that is left with no mean- absolutely ingful way to the prosecutor’s chemical evidence refute in a criminal him against See, trial. e.g., State v 248, 253-255; Minkoff, 308 Mont (2002), P3d 223 later discussed in this opinion. that,

The majority’s assertion in lieu using of of results the independent chemical test a defendant deprived obtaining, of simply the defendant can evidence, “adduce nonchemical the testimony such as toxicology expert, who can give expert opinion on the defendant’s alcohol based body level on the number drinks defendant consumed over a course of time,” simply unpersuasive. ante 455 n Not only does that idea ignore the uncorrelative character of types evidence, the different but the notion that a person’s body alcohol level be prognosticated can on other bases is similar to the “deceptively simple pro- retrograde extrapolation, Bostic, cess” of see Alcohol- People Anstey by Dissenting Opinion Cavanagh, J. Wager, extrapolation Retrograde related after offenses: (2000), prob- the same presents B J 668 and 79 Mich article Bostic’s The discussion in J. Nicholas lems. significant debate within the scientific illuminates evi- reliability prognosticated of community over in the “variability 669. dence. Id. at This is because (ethanol)” “exacerbated response human alcohol is on measuring the effects of alcohol the difficulties enzymes alcohol.” Id. body and human on the human of unnec- of article is lengthy recapitulation While a here, attempting involved in essary complexities through alcohol level nonchemi- person’s body divine a Among the cal means should not be underestimated. bearing analysis timing on are the factors rates, the stage, elimination postabsorptive onset of onset, frequency of food on the postabsorptive effect race, differences, use, gender, interindividual alcohol conditions, differences, pathological intraindividual acid-blocking drugs. illustrates, the article’s of various studies

As citation or one can offer to any expert study that side likely to a the other is support particular premise, side study directly to offer an or that refutes expert be able illustrates, article Moreover, that as the also premise. may relatively range be consistent while there is, nonetheless, a extrapolation, range.4 it accuracy majority’s respect of State v is true with to the citation The same Despite Vliet, ante 455 n 20. 95 Hawaii P3d 42 See admissible, despite that court found formula” whether the “Widmark widely rehable, inequitable can this whether the formula be said to be unchanged: left to evidence a defendant is rebut chemical fact remains extrapolation despite the fact that he was with nonchemical evidence his to obtain chemical evidence and was denied entitled police. claiming By that is remedied because nonchemical that situation body range raise a doubt in of a alcohol can reasonable 476 MICH436 Opinion by Dissenting Cavanagh, J. his trying prove body

But when very precise statutorily alcohol level did not exceed a level, namely, grams per 0.08 of alcohol proscribed blood, per breath, per milliliters 210 liters urine, milliliters of it is of little help expert be which might range able demonstrate a into body likely Thus, defendant’s alcohol level fell. it is the hardly consoling majority pronounce for to that a can offer simply expert testimony body defendant on his level on alcohol “based the number of drinks the defendant gives “[t]he consumed” that instruction the an adequate defendant to defend him- opportunity arguing self by police-administered that test was inaccurate and that an independent test would have produced a different result.” Ante at 455 n 457 n 21. what nonchemical Despite evidence the defendant can produce, prosecutor find to will hold the clear advantage in only that not can any he rebut nonchemi- expert testimony, cal with evidence but pos- he alone sesses the of a results chemical test to which the defendant has no rebuttal at all.

Further, despite Justice CORRIGAN’s interpretation of the principles she cites from writings three her of late husband and a by foreword Justice see ante MARKMAN, 456-457,1 at fail to see how the truth-seeking process is enhanced or by only furthered denying defen- favor, majority grasp defendant’s does not seem to the unbalanced position places Nothing produces into which it a defendant. a defendant regard go by prosecutor’s in this will unrebutted own witnesses. So to edge any by expert testify out reasonable doubt created a defense can who “range” body may to a into which defendant’s alcohol level have fallen, prosecutor eyewitness evidence, armed will be observation sobriety results, expert any field a rebuttal nonchemical evidence produces, and, critically, indisputable defendant results aof Undeniably, justice heavily test. scales of are tilted in the prosecutor’s favor. People Anstey Dissenting Opinion Cavanagh, defense, in his evidence right gather mandatory dant’s present allowing prosecutor but also to rebut. for the defendant impossible has made the state “truth-seeking process” type this is the I do not believe byor constitutions framers of our either the envisioned fact, a In justice system. on the criminal commentators her assertions belies by Justice CORRIGAN quoted passage a defendant’s protect sufficient to instruction is denied trial when to a fair “ defend opportunity adequate him of ‘an deprives ” Grano, ante 456, quoting charges.’ See against objectives procedural Implementing reform: I, Procedure-Part Criminal Rules Michigan proposed D. Joseph Professor L R Wayne he wrote the words correct when completely Grano Corrigan quotes: Justice procedure is to objective of criminal primary

“[T]he extent, To some of truth. facilitate the ascertainment concern. Accord- encompass must this therefore, fairness party they provide do not either are when rules ingly, unfair present his case. develop adequate defendant, for the how- with fairness special The concern erroneous con- ever, special abhorrence stems from is agreement exists that a rule basic Thus, viction. if unfair adequate opportunity to an it denies the defend supra at charges." [Ante against the Grano, quoting added).] (emphasis that the Professor Grano outlined It is for the reasons an that dismissal is misguided asserting majority is never be “the truth will remedy because inappropriate omitted). ante at 457 (emphasis n 21 discovered.” See right to obtain evidence5 denying a defendant’s Simply, informing jury that a defen Oddly, majority concludes that “plac[es] right independent all the facts denied his dant was 476 Mich 436 Dissenting Opinion by Cavanagh, J.

his prevents defense also the truth from ever being exposes discovered and a defendant to the possibility of being wrongfully convicted, despite “special concern for fairness” and “special abhorrence of erroneous conviction” identified by Professor Grano. And therein lies the fundamental difference approach. While the majority favors rewarding the deprivation of the right to obtain proceeding with trial expos ing the defendant wrongful conviction to further what it perceives as the “truth-seeking process,” I favor a meaningful remedy that encourages the police to act ,6 according to a mandatory which in turn pro- statute fact-finder,” provides “more, before the less, information,” rather than “communicate[s] transpired,” an accurate “gives account of what jury all of the available relevant information.” See ante at 457 & n 21. majority jury also asserts that the instruction informs the of “all the pertinent information, including what has [sic].” been denied to them propositions Ante at 457. simply These “pertinent are incorrect. The placed jury information” that is not before the is the results of an independent jury chemical and, thus, test. The is denied this information denied jury its to all the facts. The thus receives less information than that to which it incomplete was entitled and is left with an account transpired majority’s permissive events. The jury insistence that a truth-seeking process instruction furthers simply logic. is backward majority’s permissive jury claim that the instruction will “accord meaning right” police to the violating and “deter right” officersfrom that First, nothing ridiculous. See ante at alerting jury 450. about person deprived ability of an to obtain an meaning” test “accords to the Simply, embodied in the statute. little, Second, instruction is majority’s “too too late.” rule of law actually encourages police person’s request officers to decline a for an only test because not meaningful negative are there are no consequences decision, police put superior position but the are in a they trump because indisputable will hold the card of chemical evidence. way, In this “permit[ted]... officers ignore are indeed mandatory statutory right____” defendant’s See ante at 458. surprisingly, majority Not disagrees assessment, with this but again, majority’s simplistic and idealistic view fails to account for the practicalities way real-world about the play in which these scenarios will opinion. Moreover, out. See n 4 of this because the defendant was denied People vAnstey Dissenting Opinion Cavanagh, J. view, This, my to a fair trial. right tects a defendant’s fostering of constitutionally sound the more is truth-seeking process. Sixth Amend that a defendant’s no clearer

It can be implicated is when a full defense right present ment right to an of his codified he is deprived .7 to the test has been right test While an unconstitutional right is codified, the violation Indeed, a fair trial. defendant’s of a deprivation 625a(6)(d) demonstrates § further intent behind one party meant to afford never Legislature party the other denying while scientific same, thus further obtain ability independently assertion, at 457 n ante rebutting majority’s “truth-seeking sufficiently assists instruction jury process”: enacting The intent 9.2325(1)(5) production

257.625a(5); was to allow the MSA orderly man- in an of chemical evidence preservation 681, 686; State, App Mich Secretary ner. Broadwell v argued petitioner in Broadwell 405 NW2d choosing person of his entitled to have that he was subjected being to a first administer the test without However, this Court officer. chemical test place of the statute would a construction found that such impairment within only of chemical scientific evidence test, speculation regarding right to an his constitutional very unhelpful. The him is been favorable to the test would have whether defendant was denied point know because the that the will never right to the evidence. his constitutional obtain expressed only in its argument the trial court because I address this in nature. opinion at issue was constitutional its belief that the unnecessary holding on constitutional to base its court found it trial clearly called of dismissal was principles it found that the because merely statutory right clearly a codifica However, it considered the for. judicially Thus, right. be process I find that it would tion of a due this issue. to not address inefficient 476 MICH436 Dissenting Opinion by Cavanagh, J. petitioner’s contrary disposal, sole legislative to the Koval,

intent of People the statute. Id. In v 371 Mich (1963), Supreme NW2d 274 our Court found that existing statute, the then which significantly does not one, differ from the current protection was enacted for the charged and benefit of driving motorists while under intoxicating liquor. Thus, influence of may it be said intended that the scientific shall not disposal be at the sole party, either and it by ensured allowing police this result to administer one test and allowing the accused to an independent choose person to administer a second [People chemical test. v Dicks, (1991) 694, 698-699; App Mich 476 NW2d 500 added).] (emphasis Further, the majority’s centering of its analysis on its characterization that the evidence defendant was de- prived of, namely, an independent chemical test of his body level, alcohol was evidence that yet had not been “developed” is simply game of semantics. See ante at 461. For despite the majority’s strenuous attempt minimize the importance of the right or the subsequent significance of the evidence, the fact remains defendant had a due process right to obtain the evi- dence, whether that entailed it, “creating” “developing” it, or any other way it, of getting however stated. Simply, defendant sought to exercise mandatory his to procure independent chemical testing, and, thus, documentation, of his already-existing body alco- hol level at the time he was taken into custody. And he sought to exercise this because the Legislature penned a statute that grants the right to do so. When the majority’s fallacy logic exposed, its constitu- tional analysis apart. falls

The correct conclusion, and one that the trial court reached, is that the right issue, though codified through statute, implicates a defendant’s constitutional right when violated. Simply, refusing the defendant an vAnstey Dissenting Opinion Cavanagh, “ ‘is an he has to defend himself only opportunity him the deny ” 2d Dawson, App 184 Cal v charge.’ People against (Cal Dep’t, Super App 881, 882; Rptr 7 Cal Supp 862, 866; Newbern, App 2d In 175 Cal 1960), re quoting accused has an absolute “[T]he Rptr Cal additional evidence and obtain right to secure witnesses government, the evidence obtained to counteract To hold acquittal. and to seek to establish a defense and the stake.” State return to the rack otherwise is to 1975) (NM 16, 23; App, 536 P2d 280 88 NM Myers, omitted). J., (Sutin, dissenting) (emphasis conclusions, majority its Attempting bolster from Ari- following statement selectively extracts 333; L 51, 59; 109 S Ct 488 US Youngblood, zona “ (1988): argue free to to 2d defendant is ‘[T]he Ed might test have breathalyzer finder of fact that a a do not have constitu- exculpatory, police been but ” Ante at any particular to tests.’ duty perform tional only n view the excised statement 462 26.8 One need material from which it was extracted the context of the reliance: majority’s curious reject to Appeals referred somewhat The Arizona Court of also “inability quantitatively obliquely to the State’s to test” Ariz., samples the newer P-30 test. 153 certain semen with 2d, If court meant this statement at 734 E at 596. police is when the fail that the Due Process Clause violated tool, investigatory strongly disagree. particular a we use prosecution here no different than a The situation 8 my opinion, speak police in terms of a officer’s “constitutional In question duty” from the true involved. obfuscates the issue and detracts Thus, accurately question in terms of I is more addressed believe rights police are violated when the a constitutional whether defendant’s statutory duty permit comply defendant an their a fail to dispositive chemical test. While not to obtain overshadowing analysis, it is indeed a that those terms avoid scrutiny. right under constitutional defendant’s [July- 476 Mich 436 Dissenting Opinion by Cavanagh, driving alone;

drunken police rests on observation argue defendant is free to to the finder of fact that a breathalyzer might exculpatory, have been but duty do not perform any have constitutional particular [Youngblood, supra tests. 58-59.] at As the reader Youngblood did not see, can involve body alcohol level testing and it did not involve a statutory right to testing. Clearly, the Youngblood Court was in no way on commenting process the due rights that arise when defendant is denied a mandatory right to obtain independent testing body of his alcohol level.

In another citation that best, is inaccurate at majority states that in In Martin, re 509; 58 Cal 2d P2d (1962), Cal Rptr 833 the court held “that the police are not required to assist “ obtaining test,” a chemical and that ‘police officers are not required to take the initiative or even to assist in procuring evidence on behalf of a defendant which is ” deemed necessary to his defense.’ Ante at quoting Martin, supra at 512. What the majority omits to tell the reader is that there was no statute that mandated the police to person allow a an opportunity for indepen- dent chemical testing. What majority also omits to mention is that in Martin “was released the defendant within minutes after his ‘booking’ at the police station.” Martin, supra at 512. Because his fast release, court concluded that “[n]o meritorious claim can be made that not, [the could defendant] time, have obtained a timely if Id. sampling unhampered.”

Similarly, the majority mistakenly relies on State v Choate, (Tenn 667 SW2d Crim App, 1983), for the proposition that “the police have no constitutional duty to take affirmative action to transport the defen- dant from place of his or her incarceration to a hospital of his or her choice for the requested test.” Ante People vAnstey Opinion by Dissenting Cavanagh, is that by majority, ignored but Important, at 462. required in that case at issue the state statute chemical police-administered to a to submit suspect take that test. had refused to test, and the defendant find a due 111-112. The court could not Choate, at supra violation, reasoning as follows: process test, police breathalyzer he to take Since refused in obtain- steps to assist the defendant took no affirmative However, was not ham- ing sample. the defendant a blood test, police obtaining a blood pered prevented from arrange himself to for a blood test and he made no effort accompa- telephone to a and was although he had access (emphasis police [Id. station. nied a friend to added).] majority’s in the The reliance is seen misplaced same 58; Finnegan, 85 NY2d citation Finnegan, In 647 NE2d 758 NYS2d chemical for an state statute allowed suspects on the to assist obligation police put but “Right stated: obtaining the test. statute be person permitted tested shall additional test. to administer physician choose a at the direction addition to the one administered 1194(4)(b). Traf To officer.” Veh & Law police states, “A who takes contrary, person our statute request peace administered at a officer’s chemical test shall be a reasonable given in this section provided as choosing or her own person to have a of his in this 1 of the chemical tests described administer her time after his or a reasonable subsection within 257.625a(6)(d). Thus, by plain its detention.” MCL action on some affirmative words, requires the statute rely on majority For the police. part officer’s violation to excuse Finnegan misguided. What simply this case is defendant’s is that our statute majority actually asserting 476 Mich Cavanagh, J. Dissenting by Opinion no on the a who the places duty police person assist custody by police honoring person’s holds reason- request independent able to obtain an chemical test. an Such assertion rewrites the statute of concern. above, As is evident a majority takes painfully journey circuitous to reach what ultimately is a that no meaning right conclusion there is to the 625a(6)(d), and, thus, § codified in purpose to the statute at The majority pronounces all. that there is no providing mandatory available when statute right is violated and that the police have no “constitu- duty,” 461-463, tional ante at to follow the statute. Moreover, in deciding that defendant deprived was not of his constitutional right independent to an test, majority engages in a pretense. It concludes were not obligated to assist defendant obtaining independent an chemical test. This is incorrect and simply illuminates the majority again fundamentally misunderstands the crux of the right at issue. provides a thorough well-reasoned dis-

Minkoff cussion regarding the due process implications of inter- fering with a right defendant’s an indepen- obtain dent defendant, test. In Minkoff, rather than requesting asked the police officer for the offic- er’s advice regarding whether he should obtain an test. Id. at 249. The officer told the defen- “ dant that a blood test ‘comes out with the exact amount going and it’s to be higher than what the breath ” test is.’ Id. Accordingly, the defendant “did not re- quest blood test.” Id. at 250. Deciding whether the process argument defendant’s due that the officer “frustrated” his to obtain an independent merit, had the court provided following funda- mental principles: People Anstey Dissenting Opinion by Cavanagh, undisputed person

It that a accused of a criminal process right existing exculpa has a due to obtain offense (1986), 357, tory See State v. Swanson Mont. evidence. that, undisputed 722 P.2d 1157. It also is when DUI, charged has a offense is the accused or her obtain a test of the amount of alcohol his blood officer, arresting independent of the test offered regard re without to whether the accused has taken or Mont, Swanson, 360-61, jected at the offered test. Finally, that, undisputed P.2d at it is while a law 1157. duty affirmatively enforcement officer has no assist a person obtaining independent of DUI in an blood accused test, impede person’s the officer cannot frustrate or Mont, Swanson, efforts to do so. See at 722 P.2dat Moreover, 1157-58. we have held that accused must be right independent testing informed his or her and that process failure to so advise is due violation. State v. (1997), 122, 127, Strand 286 Mont. 951 P.2d 555. case, present [State In the the District Court relied on v\ (1997)] denying [286 Sidmore Mont 951 P2d 558 in There, and, Minkoff s motion to dismiss. we clarified in fact, limited “the Swanson rule” that a DUI accused has a process right independent due to an blood test. We held support allega that two criteria must be established to an process rights regard tion of denial of due to the (1) independent timely to an request test: accused must (2) test, independent unreasonably the officermust Mont, Sidmore, 234-35, impede to the at test. Here, request 951 E2d at 568-69. Minkoff did not and, therefore, it, independent on test the face of concluding in District Court did not err that the Sidmore [Id. 250-251.] criteria had not been met. at The court then argu- considered defendant’s unreasonably impeded ments that the officer his oppor- tunity independent to obtain an and concluded that the officer did indeed do so: that, duty have held have no to assist an

We while sobriety, obtaining independent accused evidence of through “they cannot frustrate such an effort either affir- 476 Mich 436 Dissenting Opinion by Cavanagh, Swanson, regulations.” mative acts or their rules and Mont, (see 361-62, 61-8-405(2), § at 722 P.2d at 1158 also MCA, peace may unreasonably impede “The officer test”). person’s right Here, independent to obtain an blood repeated the officer’s statements the blood test would level, higher well-intentioned, show a blood alcohol albeit frustrate, were affirmative acts which would if not obliter ate, any the intention of rational arrestee to obtain an independent Rare, indeed, blood test. person would be the persist asking who would for an blood test being after advised —twice—that the amount of alcohol the blood test result higher would show as than the amount in the offered breath test. We conclude that the officer’s unreasonably impeded advice frustrated and Minkoff s due process right to the [Id. 252.] blood test. on Finally, the basis of the severely uneven footing on which the deprivation of the opportunity to obtain independent chemical placed defendant, court overruled its prior case law that held that sup- pression of the evidence was a sufficient concluded that the only constitutionally sufficient rem- edy was dismissal of the charges. See id. at 253-255.

No case cited the majority’s labored opinion either considered or addressed whether a person’s due process rights are violated when that person submits to a required police-administered chemical test but is none- theless denied a request reasonable statutorily required independent chemical test. But there is no shortage of states in deprivation which the right (1) to an independent chemical test has been found to (2) be unconstitutional require dismissal of the charges. See anno: Drunk driving: Motorist’s right to private sobriety test, 45 ALR4th 11. In Georgia, court of appeals questioned use, without enforce- ment, of a requiring rule a police grant officer to reasonable request for an independent chemical test: “But of what value is right if the accused is in People Anstey 489 v Dissenting Opinion Cavanagh, either refuse custody of law enforcement officials who State, v right?” or fail to allow him to exercise the Puett (1978). 300, An Arizona 301; 248 SE2d 560 App 147 Ga court, argument faced with a prosecutor’s he independent defendant had no to an test unless test, explained: a police-initiated first took correct, logical [prosecutor’s] If the contention was police affirmatively conclusion would be that could every breathalyzer from prohibit driver who refused a obtaining sobriety, in independent evidence of his essence suppressing evidence favorable to the defendant. Such process v [Smith result would be violative due of law. (Ariz 1977) Coda, 510, 512; App, 114 Ariz 562 P2d 390 (staying prosecution charges on related to intoxicated driving).] (Utah

Further, City Werner, in Provo 810 P2d 469 1991), App, highlighted the court the due con- process cerns inherent in a defendant’s to an independent chemical test. That court stated:

Similarly, required provide process all that is due is an opportunity purpose to obtain an “The test. unfairness, process prevent due is to fundamental and one of its essential elements is the to defend.” State Snipes, 299, (Mo.), denied, v. 478 S.W2d cert. 409 U.S. (1972). 979, 332, 93 S.Ct. 34 L.Ed.2d 242 “The issue is whether the opportu a reasonable afforded nity examination-, to obtain an it neces sary that such an examination in fact be conducted.” Alano, 1122, Commonwealth v. Mass. N.E.2d (Ala. State, Bilbrey See also v. 531 So.2d 1987) (defendant App. prove by Ct. must clear and convinc ing police evidence that the conduct of the was unreason violation). process [Id. able order to establish a due added).] (emphasis they its conclusion that the did all Again, duty, required were to do had further majority changed language has of the statute and Mich Dissenting Opinion by Cavanagh,

rewritten an plainly requirement otherwise worded any duty police actually eliminate honor the request person reasonable of a attempting obtain independent chemical evidence. See ante at n 27.

If given all, it is to be any meaning at the statute clearly requires police to assist in some way when a person attempts right to exercise his to obtain an Here, course, chemical test. outright refused to take defendant where he asked to go, a decision that the prosecutor this case agreed has unjustifiable. was process Defendant’s due obtain the test clearly violated.

Further, punishing a violation of the statute with the strict remedy of dismissal and allowing the prosecu- tion to go forward with the charges will enable a completely one-sided presentation evidence, even if the police-initiated results of the test are suppressed. By an disallowing the police benefit from a win-win situation. Without scientific evidence, prosecutor can easily persuade jury with the police officer’s observation evidence. A defendant can counter that testimony with absolutely nothing but his word.

As a Tennessee court succinctly explained, “We do not believe that simply suppressing the State’s blood alcohol test is sufficient safeguard of the Defendant’s gather to be able to preserve evidence in his evidence, defense. This if favorable to Defendant, easily could have secured his acquittal.” State v Livesay, (Tenn 1996). 941 SW2d Crim App, And in Washington, the appellate court rejected likewise argument for suppression of the police- results of the administered an adequate test as remedy. That court’s reasoning bears repeating: People Anstey by Dissenting Opinion Cavanagh, J. remedy proper

The State contends the for violation of right independent Mr. McNichols’ to obtain an blood test is suppression argues of the State’s breath test results. It purpose independent accuracy test to is contest test; therefore, of the State’s breath if a defendant is unfairly deprived challenge of an the State’s results, denying playing use of those results levels the any field and the defendant free leaves to contest other by evidence of intoxication introduced the State. remedy, recognize extraordinary is an

We dismissal suppression is when which unwarranted evidence will any prejudice by governmental eliminate caused miscon- Suppression inadequate present in duct. ... case. In a DWI case defendant’s condition at the time of his against charge is critical To arrest to his defense. defend him, against Mr. present McNichols would have to intoxicating liquor that he was not under the influence of regardless the time of his arrest. That is true whether the State introduces BAC test or other results evidence of intoxi right cation. The State’s interference with Mr. McNichols’ independent obtain an alcohol concentration test foreclosed a by depriving trial him fair forever of material evidence which potentially supported could have a claim that he was inno Suppression cent. of the State’s BAC test results would not prejudice eliminate the because a favorable blood test is rehable evidence of nonintoxication that could be used to against proof defend other of intoxication. Because the error trial, cannot be remedied appropri new dismissal is the McNichols, remedy. 283, 289-291; ate App [State v 76 Wash (1994) (citations omitted).][9] 884 P2d 620 Finally, aptly explained why the court Minkoff than rectify other dismissal would the consti tutional violation: Washington Supreme While the Court overturned this case on the jail personnel right get

basis that did not interfere with the defendant’s independent Supreme agreed blood Court with the Court of Appeals process right. McNichols, that the was a due State v Wash 2d 906 P2d 329 Mich Dissenting Opinion Cavanagh, Strand, dismissal, urged by

In the issue of as defendant, state, suppression, argued by versus as was above, squarely opted before us. As discussed we and, so, suppression doing distinguished on the Swanson regarding facts whether the state’s offered breath test had discussing been taken or In appropriate refused. rem edy Strand, however, we made several statements on through. regard, which not we did follow In that while we Washington Supreme relied on a propo Court case for the permitted sition that the state cannot be to use scientific evidence of intoxication which the defendant is unable to apprised rebut because he indepen his testing, that, dent we also stated while blood test results have rebuttal-type value as evidence to the evidence, state’s such results also “have value compelling evidence, as regardless scientific of the evidence Mont, by Strand, introduced the State.” at (citation omitted). P.2d at 555 possibility We discussed the might that a challenge potentially elect not to intoxication-related observations the officer or field sobriety results, might test produce given but —if opportunity conclusively showing scientific blood test a —a blood legal Strand, alcohol concentration below limit. Mont, at 951 P.2d at 555-56. Had we followed through statements, on limiting these rather than our question evidence,” focus to the of “like dismissal would appropriate remedy. have been the Here, the State admitted Minkoffs .167 blood alcohol during jury content as evidence presented trial. It also arresting testimony officer’s videotape and evidence on performance sobriety Minkoffs on field tests: he did not successfully alphabet “T”; recite the after the letter he swayed during one-legged put stand and his hand on a brace; and, door during as a the walk and turn he line, stepped nearly over, off the fell steps took more than he Suppressing was instructed to take. the State’s allowing breath a new trial would leave Minkoff sobriety unable to through rebut the field test evidence right blood test —the to which he was effec- tively suppression denied. We conclude of the breath test Anstey Dissenting Opinion Cavanagh, remedy of that deprivation is insufficient results forth in and, set accordingly, we overrule [Minkoff, supra 254.] Strand. ig- Neither highly persuasive. concepts

I find these for allowing nor violation the constitutional noring chemical test the state’s the results of suppression equal a defendant on put or rectify the violation will Rather, officer his accuser. footing with that of from in a position a defendant unilaterally place can completely with- namely, never which he can recover — against to defend evidence to use out chemical or good And an officer’s chemical evidence. prosecutor’s the fact that the defendant bearing on bad faith has he evidence that only exculpatory deprived is still simply “This is not case might possibly obtain. to defen- ‘fairness’, in the Denial abstract. ‘justice’ blood test to conduct his own dant of the might he have denial of access to evidence was a reason, it is a defense. For this introduced his own due constitutionally guaranteed process denial of his Thus, my view, nothing less at 24. Myers, supra law.” violation, there is no other than dismissal cures right to Sixth Amendment way to ensure a defendant’s fair trial. merely to in- designed jury A toothless instruction nothing does that the was violated form the that of the over prosecutor’s position elevate the but adequate. any further from defendant and cannot be go must the case majority’s proclamation simply for “truth” is quest preserve forward de- truth-seeking process when the unpersuasive in cat- and resulted by the state liberately thwarted bring any ability denying defendant egorically majori- defense. Under his meaningful view of of its distorted indiscriminate elevation ty’s 476 MICH Dissenting Opinion Cavanagh, J. “truth-seeking process over constitutional due process” violation will ever merit the rights, constitutional suppression dismissal of a case or even of evidence. mandatory I find that a driver of the depriving would process to an chemical test is a due charges only violation for which dismissal of the is the remedy. only ignore To hold otherwise is to not statute, clearly mandatory nature of the but to disre- gard the constitutional of its violation. For implications reasons, I respectfully these dissent. J.,

Kelly, Cavanagh, concurred with

Case Details

Case Name: People v. Anstey

Court Name: Michigan Supreme Court

Date Published: Jul 31, 2006

Citation: 719 N.W.2d 579

Docket Number: Docket 128368

Court Abbreviation: Mich.