People v. Jagotka

PEOPLE v JAGOTKA January 13, 1998, Docket No. 197753.Submitted at Detroit. Decided Octo- 27, 1998, appeal sought. ber at 9:10 A.M. Leave to Jagotka charged operat- Michael J. was the 52-1 District Court with ing intoxicating liquor. a vehicle while under the influence of court, MacKenzie, J., granted Brian W. the defendant’s motion to suppress blood test results on the basis that the violated 780.655; 28.1259(5) (hereafter 5) by preserve failing § MCL MSA sample prosecution appealed by the blood for trial. The leave granted court, Cooper, to the Oakland Circuit Court. The R. Jessica J., reversing entered an order the district court’s order on the basis prosecution’s arguments implied statute, of the 257.625a; 9.2325(1), require MCL MSA does not the blood preserved result, sample, be because the test not the blood is the process rights evidence and that the defendant’s due were not vio- appealed granted. lated. The defendant leave Appeals The Court of held-. governed by provisions 1. This case is not con- sample pursuant sent statute because the obtained the blood

ato search warrant obtained after the defendant refused to submit Breathalyzer provisions govern to a § test. The of 5 this case. destroyed 2. Section 5 was violated when the blood was safely kept being produced and not or used as provide remedy evidence at trial. The statute itself does not its violation. appropriate remedy 3. An in a criminal § case where 5 is violated resulting in a loss of relevant evidence is to instruct the factfinder unpreserved that it infer that evidence because violations of However, the statute would have favored the defendant. in order to instruction, warrant an adverse inference a defendant must articu- prejudiced late how the violation of 5 the defendant. 4. The defendant articulated how he was in this case by explaining might expected play how the lost evidence significant role in his An defense. adverse inference instruction is appropriate at the defendant’s trial. The order of the circuit court reversing suppressing the district court’s order the blood test require results must be affirmed but modified to an adverse infer- The matter must be defendant’s trial. instruction at the ence for trial.

remanded modified and remanded. Affirmed as majority’s interpretation P.J., §of 5 with the concurred Markman, necessary finding suppression where is a sanction that and its breached, finding from the that been but dissented the statute has There are considerations rel- breached in this case. the statute was samples generally well as to the blood sam- to blood as evant both specifically ples that mandate conclusion in this case “necessary preservation for the of was not any trial,” provided produced in being as or used as evidence on be affirmed without order of the circuit court should § 5. The modification. Intoxicating — — — Liquors Search Warrants 1. Searches and Seizures Breathalyzer Test. Refusal of 780.655; procedures provided MSA in MCL The search warrant procedures provided 28.1259(5), in the consent stat- not the apply ute, 257.625a; 9.2325(1), to a blood MCL MSA person pursuant from a arrested for to a search warrant obtained operating allegedly influence of a motor vehicle while under the Breathalyzer liquor intoxicating test who refused to submit to a 257.625; 9.2325). (MCL MSA — — — Loss of Evidence Evidence Law 2. Searches and Seizures Criminal — Adverse Inference Instruction. 780.655; 28.1259(5) results in the loss of A violation of MCL MSA may proceeding instructing relevant evidence in a criminal warrant unpreserved factfinder that it infer that the evidence because of the violation of the statute would have favored the defendant; instruction, an inference the defend- to warrant adverse ant must articulate how the loss the defendant’s case might expected play sig- explaining lost evidence how the defense. nificant role the defendant’s L. Kelley, Attorney General, Frank J. Thomas Prosecut- General, Goreyca, Solicitor David G. Casey, Chief, Appellate Attorney, Browne, Richard H. ing Todd, Prosecuting Division, Joyce and F. Assistant Attorney, people. Traver), Daniel A. (by and Walzak

Traver, Lepley for the defendant. 232 Mich

Opinion Court Markman, P.J., Before: and Cavanagh, McDonald JJ. charged operating J. Defendant is with

McDonald, intoxicating vehicle while under the influence liquor, appeals 257.625; MCL MSA9.2325. Defendant granted reversing leave a circuit court order a dis- suppressing trict court order blood test results revealing that defendant’s blood alcohol content was percent. 0.18 We affirm the circuit court’s reversal of suppressing the district court’s order the blood test results, but hold defendant is entitled to an adverse inference instruction because of the violation of the search warrant statute that occurred this case.

On 11, 1995, March defendant was arrested and taken to the station. The advised defend- rights pursuant ant of his chemical test to subsection 6(b) the statute, MCL 257.625a(6)(b); 9.2325(l)(6)(b), MSA but defendant Breathalyzer refused to submit to a test. After obtaining police transported warrant, search the hospital sample, defendant to the to obtain a blood Michigan which was mailed to the State Police labo- ratory testing. report toxicology for was com- pleted March 15, 1995,and indicated defendant had a percent. blood alcohol content of 0.18 The blood sam- ple destroyed pursuant departmental pro- was later to May July prosecu- cedure on 16, 1995.On 3, 1995, the provided copy tion defendant with a of the blood test results. suppress

Defendant moved to the blood test results arguing in the court, district the violated the relevant search warrant statute, 780.655; MCL MSA (hereafter 28.1259(5) 5), by failing preserve claimed prosecution trial.1 The sample blood sample the blood would be had notice defendant discovery place that took at the destroyed because of May Although not 3, on 1995. pretrial conference appears prosecu it entirely record, clear from the which indi report, defendant saw the lab tion claimed destroy samples department policy to cated the parties appear to thirty days. However, both within provided not with his own that defendant was agree July prose 1995. The copy 3, of the test results until despite notice the argued cution destroyed, defendant did not take would be that the statute did not action. Defendant countered any action. Defendant also require him to take when requested claimed he had be saved an April 11, 1995, in a letter dated requested he inspect any pros evidence the opportunity tangible prosecu at trial. The ecution intended to introduce destroyed had not been argued tion also evidence would be used as because it was the test results that trial, sample. not the blood Defendant evidence responded that the search warrant statute does for trial must be specify that the evidence to be saved prosecution, defendant, rather than the evidence the Finally, prosecution argued intends to use at trial. position should not be in a better because defendant required get his refusal to consent sample. Defendant warrant to obtain a blood search position because of the he was a different argued and that there were conse- differences in the statutes 1 argued did the statute was violated because the Defendant also provide copy The district court ulti- him with a of the tabulation. appeal. mately rejected argument, and it is not relevant to this this 350 232 Mich quences refusing implied for to consent under the granted consent statute. The district court defendant’s suppress, remarking motion to that the case should differently not be treated than if it were a case involv- ing large quantity destroyed. of heroin that was The district court also reasoned that the blood was direct evidence relevant to the issue of defend- ant’s blood alcohol content. prosecution appealed by to the circuit court granted, again arguing

leave require pre- statute did not the blood to be sample, served because results, the test not the blood prosecution argued was the evidence. The also process rights defendant’s due were not violated sample, relying the destruction of the blood on Cali- v Trombetta, 479; 467 US S Ct 81 L fornia (1984). accepted Ed 2d 413 The circuit court prosecution’s argument and found the district court suppressing erred in the test results. appeal, argues

On defendant the blood test results suppressed should be at trial because the vio- Statutory interpretation question lated 5. is a of law that this Court reviews de Denio, novo. (1997). Mich 691, 698; 564 NW2d 13 provides: Section 5

When an officer in the execution of a search warrant any property finds things or seizes of the other which a act, officer, search warrant is allowed this presence person possession prem- from whose or property thing taken, ises the present, or was if or in the presence person, of at complete least other shall make a and property accurate things tabulation of the so taking property seized. things The officer or other under the give person warrant shall forthwith from whom or 351 v Opinion of the Court copy premises property a of the the was taken from whose copy person tabula- give to the of the and shall warrant copy completion, warrant upon leave a of the or shall tion property place or from which the at the and tabulation promptly tabulation with thing taken. He shall file the was suppressed magistrate. The tabulation the court or disposition of the case of the court until the final order property things so ordered. The unless otherwise long safely kept by as neces- the so seized shall be officer produced purpose being or used as evidence sary practicable trial, any as after stolen or on trial. As soon property to the owner thereof. shall be restored embezzled disposed of things under the warrant shall be Other seized except magistrate, that mon- of the court or under direction property eys be turned over to the and other useful shall county municipality, state, the officers of which seized or moneys property shall be under the warrant. Such county state, general or munici- fund of the credited 780.655; 28.1259(5) (emphasis added.)] pality. MSA [MCL blood, seized in this case was defendant’s thing The destroyed May 16, on 1995. Defendant which was part on the allege does not bad faith destroyed dispute and does not the blood was departmental procedure. How- pursuant to routine destroyed, because the blood was it was ever, safely produced or used kept being Accordingly, as evidence at trial. we find the statute was violated in this case. suppression of the test results

The issue is whether remedy for this violation of 5. appropriate § is the remedy for its provide statute itself does not The cited, have not and our research parties violation. The violated revealed, has not a case where App 232 Mich by failing preserve seized items for trial in the con text of a criminal case.2 People Stoney,

In 403 NW2d (1987), this Court addressed the issue whether suppressed test results should be in the context of MCL statute, 257.625a; MSA 9.2325(1). Stoney, In the defendant’s blood was by hospital personnel. hospital drawn and tested later discarded and forwarded the test results, which revealed the defendant’s blood percent, prosecutor alcohol content was 0.21 pursuant implied to subsection 9 of the consent stat- sup- ute. This Court held the trial court erred in pressing plain language the test results because the of implied provides subsection 1 of the consent statute it is the test results, not the blood itself, Stoney, supra which are admissible at trial. at 725. Moreover, this Court reasoned that while the statute provides upon request, the must, results the test be made available to the defendant or the defendant’s attorney, require preservation it does not of the sam- ple Accordingly, itself. Id. this Court held the test implied results were admissible under the consent statute and the destruction of the was “irrele- vant.” Id. 2 portions This Court has addressed violations of other §of 5. See Peo-

ple Lucas, App 554, 573; (1991) (holding v 188 Mich 470 NW2d 460 copies failure leave to of the search warrant and tabulation with the “hypertechnical” require sup- defendant was a § violation of 5 and did not pression evidence); People Myers, App 120; of the seized v 163 Mich (1987) (holding suppression required NW2d 749 where the com- “hypertechnical” by failing give mitted a violation of 5 the defendant a copy People warrant); Tennon, App 447; of the search v 70 Mich (1976) (holding pres- NW2d 756 the failure to make the tabulation in the defendant, duty,” requir- ence a “ministerial did not amount to error ing reversal.) People v

However, governed implied this case is not consent statute because the obtained the blood sample through a search warrant. This Court has a repeatedly held that when authorities obtain search sample, warrant to take a blood the issue of consent removed, implied is and the consent statute is not applicable. Root, App 702, 704; Manko v 190 Mich Snyder, NW2d 776 v 181 Mich (1991); 768, People Hempstead, 449 NW2d 703 v 770; (1989); App 348, 353; (1985); People 144 Mich 375 NW2d 445 Cords, App 415, 421; (1977). 254 NW2d 911 words, procedure In other the search warrant exists independently procedure testing set forth implied supra statute. Manko, Snyder, supra at 770. we Although recognize implied per consent statute refers to chemical tests pursuant formed to a court order in subsection portion simply this of the statute states that 6(b)(iv), allegedly intoxicated driver must be advised that if the driver refuses the request officer’s to take the test, the test pursuant taken court order. Snyder, supra See at 771. The consent statute provide performed does not pursuant tests purview. court order fall within its We refuse to read by Legislature. this into the statute as written we must look to 5 to determine the Accordingly, § appropriate remedy in this case.3 parties cited, have not and our research has revealed, a case where the violated 5§ preserve seized items for trial in the context failing 3 proceeding pursuant it is were We also note clear the officers they complied requirements search warrant statute because with other set tabulation, i.e., filing return, providing § forth in 5 such as copy defendant a of the search warrant. App 232 Mich However, our research has criminal case. revealed that this Court has addressed a violation of proceeding § 5 in the context of a civil forfeiture in In $25,505, re Forfeiture of (1996).4 There, NW2d 341 the officers seized cash ceiling found of the claimant’s basement that proceeds allegedly drug was the of his son’s traffick sequester pre ing. The officers did not the cash to merely deposited trial, serve it for but instead it in a § bank account. This Court assumed 5 was violated prosecution dispute because the did not there was a argued prejudiced violation. The claimant he was this violation because he could not test the cash for fingerprints prove his, that it was not his son’s.56Id. previous examining regarding at 577. After decisions portions supra, § violations of 5, 2, other see note recognized this Court that “even in the context of proceedings, suppression criminal of the evidence is necessary remedy § not a for a violation of 5.” In re supra explained Forfeiture, at 578. This Court language suggested principal § of 5 “the focus of police integrity the statute is to ensure rather than to personal legal right pres create a in the claimant. The party ervation of evidence for the benefit of a from property § whom is seized is a clear benefit of 5 but only an incidental one.” Id. at 579. This Court con summarily returning property cluded that seized to a appropriate remedy claimant was not an for a viola- 4 The trial court did not have the benefit of this decision at the time of ruling. However, parties its it was released well before the filed their appeal party briefs on and neither cited this decision. they The claimant also contended the officers violated 5 because did presence, ability prove not count the cash in his which his $25,505 his claim the officers seized more than in cash. 355 v “an effective Instead,

tion of 5. this Court held that § remedy normally for a violation of 5 is to instruct § the factfinder that it infer that evidence unpreserved because of violations of the statute would have favored the claimant.” Id. at 579-580. We is also giving believe an adverse inference instruction in the As appropriate proceedings. context of criminal Forfeiture, supra In re explained in at 580: resulting violation of 5 in the loss of relevant evi- § [A] presumption unpreserved dence raises a rebuttable police. evidence would have been adverse to the peril they require- thus act at their when fail to observe the § ments of 5. case,

In this the violation of 5 did result in the loss § of relevant evidence. We agree with district court directly the blood was relevant issue of defendant’s blood alcohol content. We recog- nize the meaning- fact that the was not results, ful without test but we do not believe this sample’s fact the blood negates relevance.

We also believe that to warrant an adverse infer- instruction, ence a defendant must articulate how the In In re prejudiced violation of the defendant. § Forfeiture, supra 578-579, emphasized Court this prejudice that the claimant had from the vio- alleged 5, namely, lations of that he could test the lost § ability cash which fingerprints, his money prove belong his claim that the did not to his People Lucas, App 554, Moreover, son. 470 NW2d 460 where the failed to (1991), copies leave of the search warrant and tabulation defendant, with the this Court held that “hypertechnicai” require sup- violation of 5 did not Mich Opinion by P.J. Markman, “particularly pression evidence, where seized any prejudice defendant cannot articulate harm or in that resulted.” We do not characterize the violation hypertechnical, this case as however we conclude defendant must articulate how he was in explain this In must words, case. other defendant expected play might how the lost evidence significant Although role in his defense. we are dis- conclusory appel- turbed at the nature of defendant’s allege prejudice, brief, lant which fails to defendant argued sample prevented below the loss of the blood independent analysis conducting him from an sample. requirement Accordingly, the articulation is in reasons, met this case. For these an adverse infer- jury appropriate ence instruction to the is at trial in this case.

Finally, prosecution argued we note the has defend- process rights ant’s due in case, were not violated this primarily relying supra. on Trombetta, Defendant on statute, relies the search warrant not the constitu- arguing preserved tion, in the should have the sample. holding interpreting blood Our is confined to statute, the search warrant and whether there was a process rights violation of defendant’s due is not rele- vant to this determination.

Affirmed as modified and remanded for trial. We do jurisdiction. not retain J., concurred.

Cavanagh, part (concurring dissenting Markman, P.J. in and part). Although generally I subscribe to the inter- pretation (hereafter 28.1259(5) of MCL780.655; MSA by 5), majority, specifically agree accorded suppression necessary that is not a sanction where Opinion P.J. Markman, the statute has been I breached, respectfully dissent from its determination the statute has been breached the instant case. I would therefore affirm the circuit court order reversing district court order suppressing blood alcohol test results. operative language provides 5§ that “[t]he property and so seized things safely shall be kept necessary officer so as long purpose produced being or used as evidence on trial.” In my judgment, there are considerations relevant both samples generally as well as to the blood samples in this case specifically, that lead me to the conclusion preservation of such was “necessary of being produced or used as evidence By on trial.” finding con trary, I believe that the majority would considerably alter traditional police practices to pertaining preservation samples.1 of blood

First, and most importantly, the chronology of this case indicates that the defendant had a reasonable period within which request to further testing samples before their destruction. The test results were by available 15, March 1995, and the samples were not destroyed May until 16, 1995. At least two weeks before the destruction of the sam- ples, the defendant appears to presented have been both the results of their testing and their destruction schedule. Despite this, he request did not further test- ing preservation or of the samples they until after had been destroyed. I agree with majority that a 1 Indeed, implications I am also concerned about the of this decision police department’s obligations to retain in evidence other con- currently practice, preservation texts where it is not common such as the large drugs pursuant amounts of seized to a search warrant.

Opinion Makkman, P.J. object obligation to is under no affirmative defendant I further 5, under and of evidence the destruction to of an oth mere awareness that a defendant’s believe schedule does not destruction unreasonable erwise noncompliance §with 5. to excuse suffice my judgment, schedule in the destruction However, in altogether well- routine and reasonable, this case was good faith, in and communi established, administered in a manner sufficient cated to the defendant objection. timely Thus, the convenient enable his object to the destruction of defendant’s failure strong sample gives inference con believe, I to a rise, exculpatory potential. cerning Indeed, I its lack of a statement a defendant cannot think of clearer “necessary” use at is not himself that nonobjection of his to its destruct trial than the fact possible that a defendant who ion.2 Is it to conceive truly preservation of evidence could believed that the fail to ensure such his exoneration would lead to possible preservation? Is it that such defendant the destruction of evidence “neces would tolerate sary” exchange for the adverse inference at his trial especially of the fact that the defendant did not This is true view when he chose to allow destruc- have the benefit of the instant decision decision, samples. While, this defendants tion of the as a result of future credibly acquiescence argue in the destruc- be able more that their samples generate should not an inference that the tion of blood majority unnecessary trial, as here the concedes were viewed cited, revealed, parties and our research has not case have not “[t]he by failing preserve § 5 seized items for trial where the violated 351, legal uncer- a criminal case.” Ante 353. Given this the context of tainty confronting allow the defendant at the time he made his decision to hardly proceed, surmised that he con- evidence to it can be destruction of “necessary” any way his That to be for defense. sidered such evidence one, altogether an reasonable see the discussion this decision itself was that follows. People v Opinion by Markman, P.J. prescribed majority?3

instruction Where a effectively acquiesced defendant has in the destruc of evidence, tion I do not believe that an inference prosecutor adverse to the ought arise from such destruction.

Second, underscoring the inference —drawn from a nonobjection defendant’s to the destruction of evi dence after having apprised been of its imminent destruction —that such potentially evidence is not exculpatory is the simple fact that blood samples rarely “produced themselves are or used as evidence” Rather, at trial. what typically constitutes evidence are the test results relating samples. For example, in Michigan’s implied statute, consent MCL MSA 257.625a(8); 9.2325(1)(8), relating to trials for operating motor vehicle while under the influence liquor of intoxicating it is the “test results” (ouil), themselves that are the evidence that must be pre served trial, not the blood, breath, or urine sam ples that are the basis of testing.4 See also People Stoney, v 157 Mich App 721, 725; 403 NW2d 212 (1987); Tebo, v App 307, Mich 309-310; 349 NW2d (1984); People Stark, v 73 Mich App 332, 337-338; 251 NW2d 574 (1977); California Trombetta, 479, 467 US 487-488; 104 S Ct L81 agree majority IWhile with the that such an adverse inference instruc- may generally appropriate tion where there is destruction of evidence 5, including under under some circumstances the destruction of blood samples, appropriate such an instruction does not seem where defend- inaccuracy impropriety ant’s own conduct has demonstrated the such an inference. 4 Although recognize dispositive I law is not respect pursuant warrant, with to blood drawn to a search it insight regarding Legislature does nevertheless offer what the considered investigation to be relevant “evidence” in connection with the and trial of charges. ouil criminal 232 Mich P.J.

Opinion Makkman, rarely pro- samples (1984). are The blood Ed 2d 413 rarely “necessary,” In at trial. duced, and therefore being upon things focusing of seized “for the produced take into we must evidence,” or used as than the results, rather that it is the test consideration ordinarily samples, in a the “evidence” constitute driving trial. drunk accuracy high light level of of the

Third, extraordinarily integrity it is tests, alcohol of blood unpreserved unlikely testing on the that additional produced samples case would have in this blood laboratory contrary and, of the to those results exculpatory for the defendant. have been therefore, light (observing accu that, in of the See id. at 489-490 Breathalyzer racy the chances were tests, of “extremely unpreserved breath low” that analy exculpatory). Unlike areas of would have been experts reasonably disagree might about sis in which meaning significance evidence, of blood alco or scientifically impose virtu are routine and hol tests upon assessing ally interpretative those no burden improbable making highly that the defend results, it made a itself would have ant’s access very Indeed, at trial. fact difference procedure samples is a routine destruction of blood police departments among the virtual most illustrates accuracy controversy regarding absence of testing Thus, blood alcohol content. scientific comparison unpreserved evidence,

to other forms demonstrating prejudice relative to an burden of Opinion Markman, P.J. unpreserved normally blood will be a much ***5 one.* greater

Fourth, unpreserved even absent samples, possesses defendant still a reasonable means of impeaching the alcohol content test results where there is actual concern about the accuracy of the results. At trial, opportunity he retains the to raise questions accuracy regarding procedures and of particular equipment test results at issue (e.g., condition, margins error, compliance of with testing practices, norms and and human error) without resort to the Stoney, supra itself.6 6 See at 727; Trombetta, supra at 491.

Finally, with respect majority’s I analysis, note that no evidence has been offered here either party concerning the extent to which blood samples deteriorate degrade or over time and, point, some effectively cannot be tested for alcohol content. Even majority’s under the I analysis, do not believe that the retention requiring of evidence “so long as 5— 5 Indeed, defendant himself has not claimed that he was harmed or any specific way by police procedures in in this case. He does specifically claim that access to the blood would have allowed exculpatory evidence, explain mitigate him original to offer or test results, any way provide stronger or in other himself with a defense. Youngblood, 51, 56; See also Arizona 488 US 109 S Ct 102 L Ed (1988), Supreme Court, 2d 281 in which the United States in the context unpreserved samples, suppress Breathalyzer of breath refused to test and results remarked: [FJirst, acting ‘good “the officers here were faith and accord practice’ ”; second, light procedures with their normal in the actually preserved samples used the chances that would have exculpated slim; third, samples the defendants were even if the might inaccuracy tests, have shown in the the defendants had demonstrating “alternative means of their innocence.” [Citations omitted.] App.346

Opinion Markman, P.J. produced being necessary or used preservation requires the evidence on as trial”— testing beyond Addi- life. their effective majority’s analysis, tionally, I do not under the even need be inference instruction that an adverse believe approved given court itself has either the trial where procedure testing or the of evidence the destruction necessarily in its destruction. has resulted itself respectfully affirm the order of dissent and would I court. the circuit

Case Details

Case Name: People v. Jagotka

Court Name: Michigan Court of Appeals

Date Published: Jan 15, 1999

Citation: 591 N.W.2d 303

Docket Number: Docket 197753

Court Abbreviation: Mich. Ct. App.