Docket 3,645 | Mich. Ct. App. | Oct 21, 1968
PEOPLE
v.
CLAIRMONT.
Michigan Court of Appeals.
*578 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Walter T. Dartland, Prosecuting Attorney, for the people.
Wisti, Jaaskelainen & Schrock, for defendant.
PER CURIAM:
Defendant was convicted by jury verdict of operating an automobile under the influence of intoxicating liquor, contrary to section 625 of the vehicle code, CLS 1961, § 257.625 (Stat Ann 1960 Rev § 9.2325). At the trial a police officer testified concerning the interrogation of defendant upon his apprehension. During his testimony the following transpired:
"Q. Now, after was this the extent of the interrogation at that time in the automobile?
"A. I believe that we asked him, then, if he would take a blood test."
Immediately following the question and answer the defense counsel objected, and the court stated to the jury:
"That will be stricken from the record and, ladies and gentlemen, you are instructed to totally disregard that remark."
Defense counsel immediately moved for a mistrial but the court denied it on the ground that:
"[T]here has not been sufficient error committed that would prejudice the defendant's position, and I will strongly instruct the jury at the time the instructions are given to them at the close of the proofs."
*579 On appeal it is claimed that the above quoted question and answer constituted prejudicial error, as being contrary to PA 1960, No 148,[*] which read:
"The refusal on the part of any person to submit to any such test shall not be admissible in any criminal prosecution relating to driving a vehicle while under the influence of intoxicating liquor."
This case is distinguishable from People v. Reeder (1963), 370 Mich. 378" court="Mich." date_filed="1963-06-03" href="https://app.midpage.ai/document/people-v-reeder-1926735?utm_source=webapp" opinion_id="1926735">370 Mich 378, relied upon by the appellant, in that in Reeder the prosecutor asked a direct question relating to a blood test, while in the case at bar, he asked a routine, non-leading question, which did not call for a response relating to a blood test. We do not regard an answer volunteered by the police officer that "we asked him, then, if he would take a blood test", as constituting a reversible error. The trial court's ruling and instructions in our view were adequate.
Affirmed.
T.G. KAVANAGH, P.J., and McGREGOR and PHILIP C. ELLIOTT, JJ., concurred.
NOTES
[*] PA 1960, No 148 (CLS 1961, § 257.625a) has since been amended by PA 1964, No 104 and PA 1967, No 253 (Stat Ann 1968 Cum Supp § 9.2325[1]).