Lead Opinion
Defendant was convicted by a jury of operating a motor vehicle while under the influence of liquor, MCL 257.625; MSA 9.2325, and attempting to resist and obstruct a police officer, MCL 750.479; MSA 28.747, MCL 750.92; MSA 28.287. He pleaded guilty of being a third-time OUIL offender and was sentenced to concurrent terms of two to five years’ imprisonment for the OUIL 3rd conviction and six months to one year for the attempted resisting and obstructing conviction. Defendant appeals as of right both convictions. We affirm. In doing so, we hold that, under the totality of the circumstances of this case, the police did not violate defendant’s Fourth Amendment rights by briefly restraining him with a pain compliance device in order to execute a warrant for a blood sample.
i
After the police stopped defendant for speeding, he stumbled out of his vehicle, stood unsteadily, and with slurred speech admitted that he had been drinking. Thereafter, defendant failed a field sobriety test, refused to take a Breathalyzer examination, and vomited in his jail cell. While arresting officers Bradley LaCross and Michael Troyer drove defendant to a hospital to execute a warrant to draw a sample of
Defendant became “very uncooperative” at the hospital and refused to lie on the examination table. Defendant jerked his arm away from the laboratory technician who attempted to draw his blood. Concerned about the safety threat posed by defendant’s evasive conduct, the two officers restrained defendant by laying him on the examination table and applying for “a few seconds” “Do-Rite sticks”
Officer LaCross described Do-Rite sticks as being two plastic rods connected with a one-inch cord. The device is used by wrapping the cord around certain pressure points and exerting pressure by briefly pulling or twisting the handles.
After trial, defendant claimed that the use of Do-Rite sticks constitutes cruel and unusual punishment. The trial court rejected defendant’s argument finding that, under the circumstances of this case, the police used Do-Rite sticks “in a reasonable fashion[]” to “subdue” defendant and execute the warrant.
Defendant claims that it is “cruel and unusual for the police to have the ability to forcibly draw blood from an individual for a violation of the motor vehicle code.” However, because defendant cites no authority to support this proposition, we consider the issue to be waived. People v Piotrowski,
Nevertheless, the dissent cites Rochin v California,
No Michigan case directly addresses this issue. However, in Holloway, supra, our Supreme Court held that the police acted reasonably in pressing on the suspect’s throat and pinching the pressure points on his jaw to gain access to and search his mouth for hidden evidence. See also Wayne Co Prosecutor v Recorder’s Court Judge,
In Forrester v San Diego, 25 F3d 804 (CA 9, 1994), cert den
m
In the present case, after evaluating the totality of the circumstances, we agree with the ruling of the trial court and hold that the police acted reasonably
Second, the nature and quality of the intrusion on defendant’s person was not severe, unnecessary, or unduly intrusive. Officer LaCross and the laboratory technician testified that defendant was so combative that handcuffs and bed restraints would not have effectively prevented him from moving during the drawing of his blood. Even if the two officers were large and strong enough to control the defendant without using Do-Rite sticks, it is doubtful whether the force exerted in physically overpowering, positioning, and holding the combative defendant would have been less violent or caused less pain than the quick application of the Do-Rite sticks. In addition, we question whether without extreme force or the potential for pain the two officers could have held defendant still enough to ensure a safe, effective
[p]olice officers ... are not required to use the least intrusive degree of force possible. Rather, as stated above, the inquiry is whether the force that was used to effect a particular seizure was reasonable, viewing the facts from the perspective of a reasonable officer on the scene. See Graham,490 US at 396 . . . . Whether officers hypothetically could have used less painful, less injurious, or more effective force in executing an arrest is simply not the issue. See Hammer, 932 F2d 846.
Defendant makes no claim that the sticks caused him severe pain or injury. On the contrary, the laboratory technician testified that defendant showed no signs of pain whatsoever. Furthermore, unlike the scene depicted by the dissenter in Forrester, the evidence in this case does not establish that the police used Do-Rite sticks simply to punish. Rather, Officer LaCross applied the sticks only for a few seconds to subdue and protect the safety of the combative defendant. Under these circumstances, we agree with the trial court that the Do-Rite sticks were reasonably applied and constituted a reasonable means of controlling defendant and executing the search warrant. Indeed, the pain caused by the brief application of Do-Rite sticks appears less severe than the choke hold and jaw poking our Supreme Court deemed reasonable in Holloway. If the use of Do-Rite sticks were held to be unreasonable simply because they briefly inflict pain, then not only is Holloway wrongly decided, but arm twisting, limb holds, and many other commonly used and essential compliance methods would be unconstitutional. We will not subscribe to
IV
There is no merit in defendant’s remaining issues on appeal. Defendant claims that a new trial is required because there were no black jurors. However, defendant did not challenge the jury array below, and he cites no legal authority to support his argument on appeal. Therefore, defendant has abandoned this unpreserved issue. People v Hubbard (After Remand),
Defendant also argues that the trial court committed error requiring reversal in admitting testimony regarding defendant’s performance on field sobriety tests. However, defendant again fails to cite authority in support of his argument. Thus, this issue is also abandoned. Piotrowski, supra at 530. Nevertheless, the evidence was relevant to establish defendant’s drunkenness and lay witnesses are qualified to testify about the opinions they form as a result of direct physical observation. MRE 701; Lamson v Martin (After Remand),
Next, defendant contends that the search warrant authorizing police to draw defendant’s blood was not based on probable cause. We disagree. Defendant’s preliminary breath test, which indicated a 0.169 blood alcohol level, in itself justifies a reasonable person’s conclusion that defendant’s blood could reveal an
Defendant also argues that the results of his blood test were inadmissible because his blood was not timely drawn. Again, we disagree. The reasonableness of any time lapse is consigned to the trial court’s sound discretion. People v Schwab,
Next, defendant claims that reversal is required because a police officer testified that he requested a “pby” (preliminary breath test) from defendant. However, the trial court ordered the testimony stricken, and the jurors did not leam of the test results. Contra People v Keskinen,
Defendant also argues that the prosecutor committed several instances of misconduct. We disagree. In any event, even if we assume arguendo that the pros
Defendant contends that the trial court should have granted defendant a new trial because the trial court admitted testimony regarding defendant’s willingness to “make a deal.” However, because the trial court sustained defendant’s objection and followed both parties’ motions to strike this testimony from the record, we find no error. See McAlister, supra at 504.
Next, defendant claims that he was denied the effective assistance of counsel. We disagree. After a thorough review of the record, we conclude that defendant has neither sustained his burden of proving that counsel made a serious error that affected the result of trial nor overcome the presumption that counsel’s actions were strategic. People v LaVearn,
Finally, defendant contends that the verdict was against the great weight of the evidence. We disagree. There was ample evidence to sustain defendant’s convictions. People v Wolfe,
Affirmed.
Notes
This device is spelled inconsistently in the briefs and record as either “Do-Rite” or “Do Right.”
Because the use of these Do-Rite sticks was not made an issue at trial, the record does not fully depict how this device is made or used.
Concurrence Opinion
(concurring in part and dissenting in part). I respectfully dissent from that portion of the majority opinion upholding the use of “Do-Rite sticks.” In my opinion, the evidence obtained against defendant through the use of the Do-Rite sticks should have been suppressed because the use of these pain compliance devices to obtain evidence for a prosecution violated the Due Process Clause of the United Sates Constitution. In all other respects, I concur.
Arresting officer Bradley LaCross described the nature of Do-Rite sticks, and the use of the devices on defendant to obtain his compliance with the taking of a blood sample, as follows:
Q. What steps occurred then to get ahold of the situation?
A. He was asked to lay [sic] down on the bed, which he refused to do. Finally, he was informed to lay [sic] down or we would lay him down on the bed, at which time Officer Troyer and myself laid Eric Hanna down on the bed and the do right [sic] sticks were applied to his wrists.
Q. And the do right [sic] sticks are restraints? I would just maybe have you explain to the jury what that is.
A. They are two pieces of plastic approximately this long attached by approximately a one-inch rope. They are used to restrain people, are considered a technique for compliance.
Q. What effect do they have upon the person they are applied to?
A. They are designed to gain compliance. Once compliance is gained the pressure is supposed to be relieved in order to not cause any injury or long-term pain.
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Q. And just explain to the jury as far as your action and your use of them as to Mr. Hanna. How did you do that?
A. How did we apply them?
*479 Q. You say there was control on the amount of pressure?
A. I applied it at the wrist with soft hands. I applied pressure when the lab technician was coming up to draw the blood because Mr. Hanna started to pull away. Pressure was applied. He was told repeatedly. At which time he complied after the pain was applied to him.
Q. Pain, it sounds pretty bad. Was it pinching? How does it all work?
A. It’s just through pressure points that are learned through our training. It’s not a permanent pain. It’s just real quick and simple. It is used for compliance for subjects that aren’t cooperative.
Q. You indicated, I thought, soft hands, if I am quoting you correctly. What does that denote and relate it to other types of procedures that you might have used.
A. It wasn’t used as a restraining instrument or any type of a weapon for use of force that way.
Q. Okay. Are they able to be used in that manner?
A. Yes, they are.
Q. If you had not had the do right [sic] devices at this time, Officer, would you have been able to get the blood?
A. No.
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Q. In the case here with Mr. Hanna how long did you have them applied to him?
A. A few seconds.
Q. And was the same degree of pressure constant as far as the pair of restraints you were controlling?
A. There was a short, very short period of pressure, maybe two seconds, at which time he laid [sic] still. At that time the pressure was released and Mr. Hanna was informed if he didn’t comply further pressure was going to be reapplied.
Q. Now, what was his response to that statement?
A. At that time he laid [sic] still. [Emphasis added.]
The state may force a person suspected of driving while intoxicated to submit to a blood alcohol test. South Dakota v Neville,
In Rochin v California,
*481 [Rochin] was handcuffed and taken to a hospital. At the direction of one of the officers a doctor forced an emetic solution through a tube into Rochin’s stomach against his will. This “stomach pumping” produced vomiting. In the vomited matter were found two capsules which proved to contain morphine. [Id. at 166.]
Eventually, the defendant was convicted of illegally possessing morphine. The Supreme Court, in reversing Rochin’s conviction under the Due Process Clause, stated:
This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation. [Id. at 172.]
Since Rochin was decided, the Supreme Court has clarified that claims of excessive force under the Due Process Clause should be analyzed under the Fourth Amendment “reasonableness” standard. Graham, supra at 395. The question is not simply whether the force was necessary to accomplish a legitimate police objective; it is whether the force used was reasonable in light of all the relevant circumstances. Hammer v Gross, 932 F2d 842, 846 (CA 9, 1991).
The use of the Do-Rite sticks in this case was not reasonable under all the circumstances. Two officers were with defendant when his blood was drawn by a medical technician. Defendant repeatedly insisted that he did not want to be stuck with a needle because he was afraid of contracting AIDS. The officers each used the Do-Rite sticks when defendant,
The propriety of using devices called “Orcutt Police Nonchakus,” pain compliance tools which, like Do-Rite sticks, consist of two sticks each connected at one end by a cord, was addressed in Forrester v San Diego,
To be reasonable, force has to be designed to accomplish a legitimate objective efficiently. The objective was to make the demonstrators move from where they were seated to*483 the vans. But the force was not used to move the demonstrators into the vans. It was used to punish them for refusing to get up and walk to the vans. It worked as punishment does, by hurting people enough so that they do something to avoid it. The nonchakus did not work like pinching the fatty part of the arm, or pulling a person by the finger, or a hammerlock, to move the demonstrators to the van. The nonchakus . . . were used as a pain inflicting device.
In this case, a more efficient pain compliance technique would have been for the officers to warn demonstrators that if they did not move voluntarily they would be burned with lighted cigarettes, and then hold the cigarettes against then skin until they complied. The pain would have been comparable, the risk of long term disability less than from tendon injury or fractures in the wrist, and the officers would have been able to keep one hand free. Probably one officer instead of two could have accomplished each arrest. I am quite sure we would not accept the use of lighted cigarettes against the skin as reasonable force in this case. Yet the nonchakus were worse. They inflicted more serious injuries, with longer lasting consequences, without working any better to arrest people rapidly with minimum police effort. The difference may be that nonchakus at least look like dragging devices. But they were not being used to drag, so that distinction does not work.
* * *
. . . The Graham standard of reasonable force bars this use of pain as a law enforcement tool. The intentional infliction of pain was not a reasonable means of achieving a legitimate end. [Id. at 813-814, 815 (emphasis added).]
I agree with this reasoning. Like Forrester, the devices in this case were not used to directly control the physical actions of a person, but rather, were used to inflict pain to coerce a person into compliance. As such, the use of the Do-Rite sticks must be condemned as unreasonable.
As the Supreme Court remarked in Rochin, supra at 173, “to sanction the brutal conduct . . . would be to afford brutality the cloak of law.” Because the evidence used against defendant to secure his conviction was obtained by unnecessary methods that offend the Due Process Clause, I would reverse.