*1 573 v Kеen KEEN PEOPLE (Calendar 2) 7, Argued January Docket 1976 No. No. 56474. . Decided 3, 1976. June Jimmy charged manslaughter in E. Keen was Cass Circuit Court, Hoff, suppress James E. J. Defendant’s motion was results breath test taken with his consent denied. The Holbrook, (T. J., Smith, Appeals, Court of P. and R. L. J. M. (Docket Burns, J., dissenting), affirmed as to that issue No. 18176). appeals. Defendant Held: 1. test is Where blood alcohol administered law”, 257.625a; 9.2325(1),
"implied consent
MCL
MSA
the test
result is not admissible in a criminal
other than for
driving
intoxicating liquor
driving
under the
or
influence
impaired.
authority
police
while
The statute limits the
request
taking
officers
blood and limits the use that
may made
be
of the test result.
may
person
2.
blood alcohol
be
No
to a
who refuses
law”,
257.625d;
"implied
consent under the
consent
MCL
9.2325(4); under the statute the issue is not viewed in the
seizure,
solely
context of search
but
and
in terms of consent.
Consent determines to
extent
what
the result of the test
administered under the
can
statute
be used. Whether or not
required,
constitutionally
Legislature may
is
limit
police
officers
others to take blood from
allegedly
drunken drivers and
decide that revocation of a
appropri-
driver’s license for unreasonable refusal to consent
public
ately protects the
interest.
driving,
3. In
context of an arrest for drunk
advice that
of a consensual
blood alcohol test will
used to
be
guilt
determine the innocence or
of the driver means innocence
which
offense for
driver
arrested. A
statutory authority
officer has no
person
submit to a
blood
test unless the
is
driving
arrested
under the influence of
Referenсes
for Points in Headnotes
2d,
357, 364,
21 Am Jur
Criminal Law
[1-5]
§§
366.
tests,
grouping
Blood
1000.
ALR2d
Mich impaired.
must advise the driver
driving
The officer
results shall
admissible in
that if
to a
he consents
impaired.
for drunk
reversed,
Appeals
case
and the
is remanded
Court of
*2
trial.
for
(1974)
App
reversed.
Opinion the Court Implied Test — Alcohol Con- 1. Criminal Law —Evidence—Blood sent. pursuant test which is administered The result a blood alcohol "implied admissible in a criminal law” is not consent prosecution driving the under than for while other (MCL intoxicating liquor driving 257.625a or for seq.X seq.; et et MSA 9.2325[1] Implied Intoxicating Liquors 2. Alсohol Test — —Evidence—Blood and Consent —Searches Seizures. person charged given to a No blood test shall alcohol driving who refuses the influence of under law”, "implied consent; is not to consent issue under constitutionality but of a search and seizure whether there and consent has been a consent the statute of the test are admissible to what extent the results determines (MCL 257.625a, 257.625c, 257.625d; 9.2325[1], MSA as evidence 9.2325[4],9.2325[5]). -Implied Intoxicating Liquors 3. Test — Alcohol Consent— —Blood Seizures. Law —Searches and Constitutionаl Legislature police limited the others has officers and allegedly intoxicated test for to take blood from drivers to if the is not alcohol content even driver’s consent constitution- required; Legislature ally may decide that revocation appropri- driver’s license for unreasonable refusal consent protects public ately in enforcement of drunk interest (MCL257.625a, 257.625d; 257.625c, 9.2325[1], driving laws MSA 9.2325[5]). 9.2325[4], Implied Intoxicating Liquors 4. Alcohol Test — Consent— —Blood Consent. statutory authority driver A officer has alcohol the driver is for submit to a blood test unless arrested intoxicating liquor; the influence the officer the driver that if he consents to a the results must advise driving and admissible in for drunk right to a test and that he has a refuse Opinion 9.2325[1], 9.2325[4], 257.625d; (MCL 257.625c, 257.625a, 9.2325[5]).
Concurring Lindemer, JJ. Coleman Implied Alcohol Test — Con- Law —Evidence—Blood 5. Criminal sent. is administered test which The result of a blood in a "implied not admissible law” is result of civil manslaughter; the use appeal conviction. litigation of a criminal in an is not at issue General, Robert A. Kelley, Frank J. Attorney Michaеl E. General, Derengoski, Solicitor people. Dodge, Prosecuting Attorney, Jr., for defendant. Phillipson, Herbert the result of The statute J. Levin, *3 in in evidence test is admissible alcohol a blood driving a vehicle prosecution "any criminal intoxicating liquor”.1 of under the influence while a blood is whether appeal on this question The prosecution in a admissible alcohol test is manslaughter. test where a blood
We hold that the test re the statute administered in criminal is not admissible sult under the than for other (DUIL) or for liquor due a vehicle was ability (DI).2 liquor of the 1 9.2325(1). 257.625a; MSA 2 Judge opinion holding T. M. Burns with the of is in accord Our Appeals. dissenting of in the Court 9.2325(1) only 257.625(a); applies that MCLA 'T am convinced quite my opinion, it is for DUIL or DI. In to criminal intended, through Legislature the enactment the clear 'relating changing DUIL, wording the from statute 1967 amendment Breathalyzer admissibility tests 'for’ to’ DUIL 573 576 Opinion of the Court I Swincicki, 427; Lebel v 354 Mich 93 NW2d (1958), 281 this ruled that the result Court tqst, sample blood alcohol based on a blood taken driver, from an unconscious inadmissible in a Michigan civil action constitutional provi as the sion securing persons from unreasonable searches 3 precludes drawing seizures of blood with Court, out consent. of Brei authority on the Abram, thaupt v 432; 408; 77 S Ct 1 L US Ed (1957), 2d 448 declared that result of such a test would in a prosecu be inadmissible Federal California, in Schmerber v tion. Subsequently, 757; (1966), US 86 S Ct 16 L Ed 2d United Supreme States Court concluded that Fourth, Fifth, Sixth and Fourteenth Amendments had not been violated the extraction of blood without from an apparently drunken driver and the admission in evidence a drunk driving prosecution of the result of a chemical of the blood.4 We are asked to reconsider Lebel light of Schmerber. need, however,
We see no
to decide this case on
grounds.
constitutional
if
Even
we were to con-
clude,
Lebel,
on reconsideration
the draw-
ing of blood from an apparently
drunken driver
does not
rights
violate his
Constitution,
limits
authority
the statute
officers to
the taking of blood and
corresponding statutory presumptions
and the
driving
be limited to drunk-
Separate opinion
Burns, J., People Keen,
cases.”
of T. M.
84, 92, 96;
(1974).
App
Mich
After Schmerber was
decided,
625a was modif
§
§§625c-625g
added.8 Section 625c
ied7 and
were
257.625;
MSA 9.2325.
9.2325(1).
257.625a;MSA
6 MCLA
7
by
by
It
first amended
Section 625a was added
Section provides, 625d that "[a] under of his to right arrest shall be advised refuse tests; to submit and if he to chemical refuses the request aof law enforcement officer to submit to tests, given”. chemical no be test shall If the driver to refuses take a a sworn report required to the Secretary to be forwarded of State give who shall notice of the to a motor license vehicle revocation heari ng.9 If timely request the driver does not a hear ing, the Secretary suspend of State shall or revoke give of but less that such fact shall not rise 0.05% 0.15% presumption in was competent but could be with other considered evidence determining the or and if innocence defеndant there presumed more it or that 0.15% the defendant was presumption under the influence. The retained 1967 act the former that the defendant was not the influence if there was at that presumption time or less but area of 0.05% reduced the to the range between than 0.05% less If there was or 0.10%. 0.10% presumed ability more it would be motor vehicle was that "the defendant’s provisions the within of section 625b of consumption intoxicating liquor”. this act due The former presumed rule that influence it be would was defendant under thе if there was or was more retained. 0.15% (1971 154), presumptions changed PA 1971 as were follows: (a) less, presumed 0.07% defendant not was (b) influence; the within the liquor; influence. 0.10%, presumed in excess of but less than 0.07% ability defendant’s motor vehicle was provisions of 625b due to the § (c) more, presumed that the 0.10% defendant was under the 9.2325(3)-9.2325(7). 257.625c-257.625g; hearing may requested purpose determining A for the (i) grounds whether the officer had reasonable to believe that person ability was under the influence or while his to drive (ii) impaired; placеd had been under arrest on that (iii) (iv) account; reasonably test; he refused to submit to a he was rights. advised of his People v Keen Opinion op the Court his less than 90 period license for a not days nor more than 2 After a years.10 requested hearing Secretary suspend, of State revoke or deny issuance of a driving license.*
Ill *6 case, requested this the officer and the driver consented to the test. seq
While 625c et are sometimes called the §§ "implied and 625c provides law” that a § person operates who a motor vehicle "is deemed to have to a blood alcohol consent” com- panion 625d in terms that "no test shall § given” be to a who refuses to consent. Under the statute the issue is not viewed seizure, context of search and but solely terms of consent. 318,
The people rely Spry, on State v 87 SD 323- (1973). 504, 207 NW2d 507-508 The South Dakota statute requires officer to advise the driver of his right to refuse to submit blood consequences test and the of such refusal in respect to the revocation of driving privi- his leges. Before declined to Spry right exercise his refuse, officer, he had asked the who was aware died, that the driver of the other car had whether anyone seriously injured and the officer re- sponded, "I’m afraid so”. The South Dakota Su- said, preme Court "It is clear that the results of the blood test despite were admissible the failure of the police officer to inform the defendant that driver the other car had died as a result of the accident. The statute makes no requirement 9.2325(6). 257.625f;
11Id. act, 335, changes procedures A 1968 1968 PA made certain in the regarding suspension hearings appeals. license and Mich op subject more than informed that that his license that he to refuse has suspended if he does.” will be rejected The South Dakota Court considered adding: defendant, another contention of the however, hold that, we that a "Aside from all is irrelevant refusal defendant’s consent or test if the of the results of blood admission taken arrest”. is a valid accept if the South We can that dictum Dakota Court meant that consent refusal irrelevant purposes of the Federal constitution and the is not South Dakota statute. But consent irrele- Michigan The vant under the statute. South Da- speaks presumptions kota statute arise regarding from certain test results but is silent admissibility of test results. statute specifically provides are test results admissi- prosecutions. in DUIL The South ble Dakota stat- provide ute does not the driver be advised regarding the use that be made of test re- *7 sults. The statute the driver be informed that
test results would be prosеcution. admissible in a DUIL though taking Even the of an automobile driv- not er’s blood without consent does violate the Federal Constitution and even if on reconsideration of Lebel we were to conclude that it did not violate Michigan Constitution, the it would still be within legislative prerogative right limit the the police officers and others to take blood from al- legedly drivers. drunken Whether consent is or is constitutionally required, Legislature may the not the interest in the decide enforcement of subjecting justify drunk unconsenting laws does not impo-
drivers blood alcohol tests — sition of the sanction of revocation of driver’s v Keen op to consent refusal for unreasonable license public protects appropriately interest.12 only Michigan statute, is not Under the of whether and to what but determinative relevant administered under the the result of a test extent authority be used. the statute can scope Keen, in whether of the consent in result a criminal of the test it extended to use depends DUIL, on a than fоr other what the statute and occurred construction of given. solicited and when Keen’s consent was IV original 1960, § in Since enactment 625a has its be made of results of limited use pur- administered with the driver’s consent a test to the statute. suant
quirement of consent. their efforts to obtain evidence from dissuade expressed stop extracting 757, 772; L Ed 2d 448 Chief that had been violated. ber, Douglas, of the than forcible prosecutor, upon extraction California, supra, pp California, supra, p 779. * *** Chief Justice Warren reiterated "that due privacy stealth”. While the Federal constitutional penumbra short of the defendant’s Justice’s No in a principles espoused by the four legislators 86 S Ct which, person, body clearer invasion of this the State has Breithaupt dissent process *8 blood, separate opinion, bruising (1957). blood-letting Breithaupt opinion, of some fluids, since the or to utilize the 1826; in over from Schmerber v means at least Justices Black constitutional whether Breitbaupt: 778-779. Justice Fortas also dissented: v Abram, protest, specific guarantees 16 L Ed dispensing body, Breithaupt of the kind involved here.” Schmerber added: "We are they contemplate doing breaking 352 US California, supra, p 2d (Schmerber right an dissented on the further to commit that persons suspected question was decided in Schmer- right against with the case, act of violence.” 432, 440, 442; Douglas, law-enforcement officers skin, [1966]) dissenting justices might we privacy of such a have held to be within dealing present statutory v puncturing California, 384 US who the views self-incrimination kind of violence can Bill of crime 77 S Ct joined tort, it Schmerber 773. Justice by imagined tissue or force or he had ground Rights. in the must right "As re- Opinion of the Court "(1) begins: Section 625a In criminal prose cution for13 driving a vehicle while under liquor”. The qualifying words, prosecution "driving for a vehicle while liquor” influence are repeated in the clause of opening both the first (3): and second subparagraph sentences of "(3) person charged A driving with a vehicle while under the influence of who takes a chemical test administered at (1) (2) provided оfficer as paragraph hereof, shall be informed that opportu- he will be reasonable nity to choosing have a of his own administer one of provided the chemical tests as in this section detention, within a reasonable time after his and results of such test shall be admissible and shall be competent considered with other evidence in determin- ing the guilt innocence the defendant. Any person charged driving a vehicle while under the influ- ence of intoxicating liquor shall be informed that he has the tо demand that one of provided the tests (1) in paragraph given him, and the results of such test shall be admissible and shall be considered competent with other determining evidence in the inno- ” cence or of the defendant. (Emphasis supplied.) We read the statute to mean that will be used only determining guilt or innocence in a prosecution a vehicle while under the influence of intoxicating liquor or for driving while ability a vehicle due consumption of intoxicating liquor14 and for 13The 1960 "relating and 1964 enactments use the words to”. Keen change contends that use which to "for” in 1967 makes clearer the limited be made of test results. adding through 625g Legislature §§625c did not make conforming adding amendments to 625 and 625a §§ after "for intoxicating liquor” a vehicle while under the influence of the words ability "or while his a vehicle has been due to the intoxicating liquor”. clearly It is nevertheless *9 People 583 v op Opinion the Court of an purpose.15
no other In the context arrest "driving under a vehicle while that intoxicating liquor”, advice results of a con to determine sensual test will be used the inno guilt or means cence of the driver innocence or of guilt the offense for which the driver was arr ested.16 who,
The Secretary
pursuant
of State
granted
him,17
power
prescribed
to
has
the advice
rights
persons
of
to be
officers to
by
pursuant
arrested
to
625a-625 of the
§§
Code,
placed
Vehicle
to have
that
appears
con
arresting
struction on the statute.18 The
officer is
sense of the amendments that
625 and 625a should be read as if
§§
conforming
such
amendments had been made.
15
(1975) (a
Moore,
643;
People
Cf.
v
395
(a) "You for the have been arrested offense of upon highways a motor vehicle this state while under the influence of intoxicating liquor or while motor your ability vehicle has been due to the of intoxicating liquor.”
(b) "I advising you your right am further take a chemical to determine the alcoholic ** * content your person ”. * * * (c) "I further you advise the results *10 of such tests shall be admissible and shall be competent considered with other in evidence deter mining your guilt prosecutiоn or innocence in any relating to your driving a vehicle while either intoxicating liquor or while your ability operate to a impaired vehicle was due to the consumption intoxicating of liquor.”19 "(2) you tests, any That have a to refuse to take such and if refuse, you you. so no tests shall be to "(3) your provided may That refusal to take a test as result in the suspension operating privilege. your operator’s or revocation of or chauffeur’s license or "(4) Notwithstanding any provision other mentioned herein or else, anything you option only have the to demand that a breath test given you, your any shall be in which case refusal to submit to other test shall not constitute a refusal to take a chemical test. "(5) taking test, request That after a chemical administered at the officer, you or direction of a law enforcement have a reasonable opportunity your choosing to have a of own administer one of tests, detention, said chemical within a reasonable time of and thаt the results of such test shall be admissible and shall be considered competent determining your guilt with other in evidence or innocence any prosecution relating your driving in to a vehicle either intoxicating liquor your ability under the influence of or while to a vehicle was due to the of .liquor. "(6) Regardless any provision, you other if are afflicted with hemophilia, any requiring diabetes or condition the use of an anti- coagulant physician, you under the direction of a need not consent to blood, your a withdrawal of but take a urine or a breath test.” report The sworn contains the statement: "I read to him the Rights contents of the Advise for Chemical Test on the reverse [sic] side hereof’. 19Id. Court has been arrested for that he
A driver advised consents to if he and that DI or for DUIL be admissible shall test test chemical determining in evidence considered for prosecution driv- in or innocence his under the influence of "either” ing a vehicle while ability to his or while intoxication would through was vehicle if were he conclude justifiably only results would the test test requested for which he the offense in a used on that consent obtained that his arrested and use not warrant understanding would purposes. results for other given to scope of the consent It exceed the would representation on the test results obtained allow where the prosecutions they will be used is 90 days a first offender penalty maximum for a to be used imprisonment of 15 penalty years.20 with a maximum felony statutory authority A officer has to a blood alcоhol test that a driver submit driving under the influence unless the arrest is for required The officer is liquor. if he consents to a *11 advise the driver that provides that for conviction of Section punished by imprisonment person for not more a influence than 90 $100, days or $50 a fine of not less that nor more than or may punished by the offender be a second conviction both. On year imprisonment $1,000. and a fine of not more than for not more than one period subsequent ten a a third or conviction within On guilty felony. years Under the offendеr shall be deemed 28.771, by impris 750.503; may punished on that account be he years. for not more than four onment 625b that a convicted of Section may imprisoned days than 90 or fined not be for not more both, $100, together prosecution. with the costs of the more than subsequent may imprisoned for not conviction he be On a second and more than one $1,000, year fined not or both. to exceed imprison- manslaughter years for is 15 The maximum sentence 750.321; MSA 28.553. ment. MCLA 396 Mich Opinion by Coleman in test DUIL and results shall be admissible driv- ing impaired рrosecutions. Test results ob- tained following consent obtained on advice cannot for properly be used man- slaughter. The test results are not admissible this case. opinion
We intimate on the continued viabil- Lebel. Lebel does not ity of preclude Legisla- ture broadening from admissibility results where the driver consents to a test.
V
Appeals
Court of
held that by reason of
Renno,
People v
The Court of is reversed and the cause is remanded for trial.
Kavanagh, J., Williams, Coleman, C. Fitz- gerald, Lindemer, Ryan, JJ., concurred with Levin, J.
Coleman, (concurring). J. I agree with Justice the statutes limit Levin the use that made of information obtained implied *12 People v Opinion by Coleman emphasize that Keen consent law. I wish con- prosecution and, a criminal the stat- cerns prosecu- ute, not be used the test results could manslaughter. The use of the test in tion for civil litigation encompassed by and is not not at issue this concurrence.
Lindemer, J., Coleman, concurred with J.