*1 v Perlos PEOPLE v PERLOS PEOPLE v BROWN PEOPLE v MILLER PEOPLE v BENTLEY PEOPLE v SCHOMER PEOPLE v ENGLAND 86432-86436, (Calendar Argued May Docket Nos. 86524. Nos. 2-3). 25, 1990. September Decided Perlos, Brown, Miller, A. Marcy Charles Robert L. Timothy B. F. Bentley, separately and John B. charged Schomer were driving 12th District Court with while under the influence of intoxicating liquor or a controlled substance. The defendants separately suppress moved to the admission of blood alcohol results, 257.625a(9); 9.2325(1)0), test MCL MSA which were permission obtained without their after each had been involved separate Miller, automobile accidents. In Perlos and court, Hall, J., Lysle motions, finding G. denied the that MCL 257.625a(9); 9.2325(1)(9) MSA Bentley, was constitutional. court, Justin, J., granted motion, ruling James M. Brown, court, the statute was unconstitutional. In Robert Jr., J., Crary, court, denied the motion as did the Robert E. Biewend, J., appeal, in Schomer. On the cases were consoli- Court, Britten, dated in J., the Jackson Circuit Gordon W. 9.2325(1)0) 257.625a(9); which found MCL to be unconsti- suppressed tutional and Appeals, the evidence. The Court of Kelly, P.J., J., J. and J. D. Payant, (McDonald, J. Michael concurring only), affirmed, finding gov- the result sufficient taking ernmental involvement in the of the blood these cases protections, Fourth determining invoke Amendment any that the exceptions searches did not fall within requirement the search warrant and that federal and state equal protection (Docket guarantees had been violated Nos. 99852-99856).Thereafter, Appeals the Court of remanded the References 2d, Am Jur Searches and Seizures 105. §§ See the Index to Annotations under Blood Tests. Mich independent to the district court to determine whether
cases (Docket permit admission the evidence Nos. source existed to 99852-99856). people appeal. England following trial convicted a bench Trevor C. J., Ziem, Court, of two counts Frederick C. Oakland Circuit *2 trial, involuntary manslaughter. Prior to the court denied the suppress blood results which were defendant’s motion to test and consent taken without search warrant without his follow- a ing an which the two deaths. The automobile accident caused Mackenzie, P.J., Appeals, and E. A. Court of and Weaver JJ., curiam, opinion per explicitly in an Quinnell, affirmed (Docket 99838). declining adopt analysis of No. the Perlos appeals. defendant The opinion joined by Riley, In an Chief Justice Justices Supreme Griffin, Brickley, Boyle, held: and the act, 257.625a(9); provision implied MCL in the consent 9.2325(1)©), involving prosecution MSA for the admission in a driving intoxicating liquor a under influence of or con- the analysis trolled the results of a chemical of a blood substance of sample purpose of treatment from drawn for the medical accident, requirement driver of a involved in an and the vehicle facility person performing in the act that medical or the the attorney analysis prosecuting must results to a who release the prosecution requests the are results for use constitution- Const, 1963, 1, 11, ally valid under Am IV art § US and Const Const, Equal the Clauses of Am XIV and Protection US 1963, 1, art Const 2.§ 9.2325(1)(9) 257.625a(9); provides that if 1. MCL MSA after a vehicle in the accident an accident the driver of involved is transported facility sample to a medical and a of the driver’s purpose time for of blood is withdrawn at that the medical treatment, sample analysis the a chemical of that are results of prosecution to show admissible a criminal for a crime the presence or of a controlled substance the amount alcohol accident, person’s regardless blood at the time of person whether the had' been offered or had refused chemical facility performing test. The the chemical prosecut- analysis analysis must disclose the results ing attorney requests the who results for use a criminal prosecution. cases, 2. Under the of these the defendants did circumstances protected have a Fourth interest in the blood not Amendment samples test The removal of alcohol results. the blood from purposes these defendants was done for of medical treatment agents. not at the of state The actual removal of direction v Perlos protected by samples the Fourth not a search the blood Although not involved. state action was Amendment because subjective the test shared a the defendants private, expectation that it is not an would remain results willing society to consider reason- under the circumstances regard to drunken driv- the societal concerns with able. Given implied physician- Legislature’s ing, of the amendment upon resulting patient privilege, minimal intrusion and the defendants, any expectation privacy the defendants these unjustified. may The defen- had in the test results was have dants, hospitals, conveying to the assumed information hospitals might to the state. disclose information risk that 9.2325(1)(9) Thus, 257.625a(9); does not violate MCL Const, 11. Am IV or Const art § Equal it Protection Clauses 3. Nor does violate Hospitalized per- Michigan and United States Constitutions. arrest, sons, suspect More- do not constitute a class. not under over, legiti- rationally to the classification itself is related prosecution easing of drunken mate state interests ensuring safer travel. drivers and Miller, Schomer, Perlos, Brown, Bentley, reversed and remanded to the district court.
England, affirmed.
*3
Cavanagh
Archer,
joined by
Levin,
Justice
Justices
and
257.625a(9);
9.2325(1X9),
dissenting,
that MCL
MSA
stated
requires
facility
performs a
which
a medical
or a
who
sample
purpose
analysis of a
withdrawn for the
chemical
blood
facility
of medical treatment at the
from the driver of a motor
in an accident to disclose the results of the
vehicle involved
analysis
prosecuting attorney
requests the
for
who
results
prosecution,
Society
in a
is unconstitutional.
use
criminal
subjective
would view the defendants’
their
reasonable;
therefore,
private
test results would remain
as
circumstances,
exigent
person’s
absent
medical records should
not
without a warrant.
be obtained
(1989)
App
177 Mich
NW2d 734
reversed.
(1989)
App
Frank J. Filip, Prosecuting Attorney, Schroten- and Jerrold Appellate people Attorney, boer, Chief for the Perlos. Attorney Kelley, General,
Frank J. Richard Thompson, Prosecuting Attorney, Michael J. Mo- Appellate delski, Chief, Division, and Paul J. Prosecuting Attorney, Fischer, Assistant for people England. Perlos, A.
Jerome Susskind for defendants Bent- ley, and Schomer. Sims), (by Sims, M.
Robison & P.C. John defendant Brown. Kobrin, Jr.,
John P. for defendant Miller. England. D. John Lazar for defendant Amicus Curiae: Forsyth, O’Hair, President, D. A.
John William Prosecuting Attorney, Timothy McMorrow, K. Appellate Prosecuting Attorney,
Chief for the Attorneys’ Michigan. Association granted appeal
Riley, C.J. We leave to these six cases to consolidated MCL determine whether *4 9.2325(1)(9) 257.625a(9); MSA is constitu- disputed tional, and whether blood test results suppressed. People Additionally, should be in v (On Rehearing), App 657, 658; Perlos 177 Mich People v Perlos Opinion op the Court we granted NW2d leave to appeal consider whether the Court of Appeals correctly remanded plaintiff case to allow present possible evidence on a "independent source” for the disputed test results. We hold that MCL 9.2325(1X9) 257.625a(9); MSA is constitutional un- Const, der US Am 1963, 1, 11, IV and Const art § Equal and the Const, Protection Clauses of US Am XIV and Const art Accordingly, we §2. reverse the decision of the Court of Appeals Perlos, v and affirm the decision of the People England.1 Court of Appeals
i PERLOS, BROWN, MILLER, A. PEOPLE v BENTLEY, SCHOMER each these five cases defendants were involved one-car accidents Jackson County December, 1984, November, between 1985. All defendants were taken to Hospital Foote in Jack- son, for except defendant Brown who was trans- ported to Albion Community Hospital. At the hos- pitals, subjected defendants were to blood tests to measure the alcohol content in their blood. These tests were made for medical treatment.2 The re- unnecessary We find it to reach the issues whether the test results suppressed, Appeals in in Perlos cases should both and whether the Court of properly remanded to the trial court. Perlos, Bentley, The record indicates that the cases of defendants initially and Miller were consolidated in circuit court with two appeal. stipulated defendants not involved in this Those five purposes appeal their blood was drawn for medical treatment. any stipulation by The record lacks defendants Brown Schomer to Nonetheless, that effect. the five cases before us were consolidated to constitutionality 257.625a(9); decide the same issue—the of MCL 9.2325(1X9). only way constitutionality of the statute can be properly requirements this if before Court is the cases meet the statute. purposes Defendant Brown contests that his blood test was for interlocutory appeal, treatment. Since Perlos is an defen- *5 Mich 305 Opinion of the Court had that all defendants the tests showed suits of percent limit, the 0.10 over alcohol content an signifying legal intoxication. performed, and time after the tests were Some 9.2325(l)(9),3 257.625a(9);
pursuant MSA to MCL requested prosecution the the test results from the hospitals, complied. prosecu hospitals the in order a search warrant to tion did not obtain get results, consent to the nor did defendants the basis of the results of the records. On release charged tests, were arrested and defendants operating under motor vehicle while with a intoxicating liquor, 257.625; MCL influence MSA 9.2325. suppress court, to defendants moved
In district claiming results, that subsection their test implied In Per act* was unconstitutional. consent Brown, Schomer, los, Miller, the court deter constitutional and ruled mined the statute against suppressing be Bentley,
the evidence. the statute to be unconstitutional court found suppressed the evidence. appeal court, were in the circuit these cases
On unique applicability of the to their facts contest the statute dants can court. when the cases return to trial of a vehicle involved If after an accident the driver facility sample transported and a of the is to medical accident driver’s blood withdrawn medical sample crime described in subsection or a purpose at that time for treatment, analysis the results of a chemical prosecution in a criminal shall be admissible (1) to show the amount of alcohol person’s presence or of a controlled substance both alleged, regardless had of whether blood at the time been, The medical offered or had refused chemical test. person performing analysis facility close the results requests vided information shall dis or the chemical analysis prosecuting attorney who prosecution pro as for use in a criminal the results person disclosing facility A medical or this subsection. compliance not be with this subsection shall making civilly criminally liable for the disclosure. 9.2325(1) seq.; seq. et et MCL 257.625a v Peelos Opinion op the Court Judge February Gordon On consolidated. unconstitutional W. Britten found the statute Equal and the Pro- under the Fourth Amendment Amendment, and tection Clause of the Fourteenth suppressed the evidence. bring Appeals granted
The Court of
leave
appeal,
interlocutory
July 18, 1988, af-
and on
court, 170 Mich
firmed the decision of the circuit
App
(1988)
J.,
75;
protections, and conse- not fall determined the searches did exceptions any within of the to the search warrant requirement. The Court further held that federal equal protection guarantees and state were vio- lated suppressed. the statute and ordered test results However, 8, 1988, on December the Court of Appeals granted plaintiff’s application for rehear- ing light Murray States, United (1988). 533; rehearing, L 108 S Ct Ed 2d 472 On
the case was remanded to the district
possible "independent
court
permit
to find a
source” to
September 1,
admission
evidence. On
plaintiff’s
request
for clarification was
granted,
position
and the Court reaffirmed its
independent
an
established
source for the evidence could be
court.
the lower
granted
28, 1989,
On December
this
application
appeal
plaintiff’s
for leave to
to decide
whether the statute is constitutional
whether
suppressed.
the test results should be
Defendants’
application
appeal
subsequently
to cross
was
Ap-
granted
whether
the Court of
to determine
436 Mich
Opinion of the Court
if
peals correctly
the case to determine
remanded
"independent
for the evidence.
source” existed
an
B. PEOPLE V ENGLAND gave took rise to this case which The events approximately place 1:30 a.m., At on June 1985. the intersection occurred at collision a two-vehicle of Hickory Ridge Rose Center Road Road and County. Township Defendant was in Oakland Rose driving it collided with his Chevrolet truck when Tempo occupants Tempo. of the Ford Ford seriously injured in killed, was and defendant were the accident. transported collision, defendant was After the Hurley in a semiconscious Center. While Medical drawn, and a blood state, was defendant’s blood revealing analysis performed, an alco- alcohol percent. over 0.10 hol level implied consent 9 of the Pursuant to subsection prosecution re defendant’s test act,5 obtained his and without a search warrant sults without obtained, defen After the results were consent. *7 Following trial, he was a bench arrested. dant was convicted mansláugh involuntary of two counts pursuant 28.553. The 750.321; to MCL ter yield failed to that defendant trial court found sign stop right way and truck ran a when his Tempo. struck the judge defendant’s trial, trial denied
Prior to
suppress
his
results. After
the blood test
motion to
manslaughter,
involuntary
defen-
conviction for
Appeals.
appealed
The Court
in the Court of
dant
affirmed
challenges
rejected defendant’s
and
the conviction
Amendment
9 on Fourth
to subsection
App
grounds.
protection
334;
equal
176 Mich
in n 3.
9 is set out in full
Subsection
People
v Perlos
Opinion op the Court
(1989).
England
explic-
The first issue is whether subsection 9 implied of the consent act6 survives constitutional scrutiny Const, 1963, Am under US IV and Const 1, § ll.7 art
A. OF BLOOD REMOVAL FOR TESTING inquiry The initial must be whether actual taking of the constituted a or blood search seizure Clearly, under the Fourth Amendment. a blood police test conducted under the direction falls within the ambit Fourth Amendment. California, 757; v 86 S 1826; Schmerber Ct 6See n 3. 11, part provides: Const in relevant art § houses, person, papers possessions every person shall be secure from unreasonable and seizures. searches No any place things any
warrant
or
search
to seize
or
them,
describing
probable
shall
issue
without
without
nor
cause, supported by
oath
affirmation.
compelling
greater protection
Unless
there
reason to afford
Constitution,
Michigan
Michigan
provisions
under
will
Mich
NW2d 439
greater protection
and federal
affording
People Smith,
protections.
treated as
the same
v
420
341
(1984);
Nash,
418 Mich
NW2d 841
(1983).
case,
compelling
In this
we find no
reason to afford
Michigan
under
Constitution.
*8
436 Mich Opinion
the Court
of
(1966). However, before constitu-
16 L Ed 2d
protections
and seizures can
from searches
tional
in the
activated,
involved
must be
state action
be
alleged
Jacobsen, 466
States v
search. See United
(1984). In
1652;
was sufficient protections.8 that a held The Court Amendment search a search to the warrant the place improperly without took and seizure exceptions warrant, and that none of
requirement applied to authorize prosecutorial Thus, the statute was action.9 unconstitutional. found to be stated: The Court view, very Amend- for Fourth there is little distinction In our prior request be with- purposes that blood between a ment drawn and statutory once blood is mandate that tested and a state. turned over to the and tested it must be withdrawn Moreover, than the of the state rather it is the involvement heavily weighs a most toward purpose of the search acting private with no state finding A citizen state action. it is the sole participation may when for seize evidence even case, hospital present aiding prosecution. In the purpose statutorily required test to turn over blood personnel are prosecution. there is . . . We believe to the state results sufficient present 428 NW2d participation governmental and authorization 82-83; App Mich action. [170 case to constitute state (1988).] exigent circumstances Specifically, the Perlos Court considered requirement. The Court stated exceptions to the warrant and consent that records formed, justify the search exigent did not exist circumstances per already had been the test a warrant because results would without long enough preserved to obtain and the *9 Perlos v op Opinion the Court considered the England, Appeals the Court of In it. rejected of this issue and Perlos Court’s analysis the Perlos decision England Court stated the with- recognize between the distinction fails to turning over of blood of the blood and drawal the state. test results to here, i.e., the removal performed The "search” defendant, sample from was done
of the blood of medical treatment not strictly purposes police, prosecutor, or of the at the direction Thus, agents. the actual removal of the blood state protected by the Fourth sample is not a search Amendment, since state action is not involved. App Mich 343-344.] [176 agree by
We with the distinction drawn England Court and its conclusion that the Fourth implicated Amendment was not when defendants had their blood withdrawn for medical treatment. there are various medical reasons for a Certainly on patient. doctor to order an alcohol analysis example, determining For an level may alcohol be necessary step prescribe for doctors to safe and cases, effective medication. these blood was reasons, drawn for personnel, medical and not police investiga- connection with any tion.10 9 of the implied Subsection consent act consent, As to warrant. consented to the release of records to the that could not the Court held that none of the defendants Also, the Court state. stated Michigan’s law, 257.625c; 9.2325(3), implied consent MCL MSA impute any person needed because an consent has 257.625d; 9.2325(4), right absolute and defendants were not the tests. to refuse a test under MCL MSA given opportunity to refuse to submit to (see 2), England In addition to n also defendant Brown defendant disputes that his blood was drawn for medical treatment. We enter grant tain serious doubts this case. We that his contention falls within order granted appeal England to decide "whether leave 9.2325(1)(9) 257.625a(9); MCL disputed is constitutional whether the [and] determine, suppressed. . test results should be . .” We are 436 Mich Opinion the Court of medical judgment influence the designed
not
analyses
chemical
whether
regarding
personnel
no state
Since there was
performed.
should
testing of de-
in the withdrawal
involvement
no Fourth
blood,
there were
we find that
fendants’
cases.
stage
at
this
intrusions
Amendment
have
circumstances,
state courts
other
In similar
v John-
See State
the same conclusion.
reached
v
(1989); Nelson
ston,
P2d 556
108 NM
v
(Alas, 1982);
Alaska, 650 P2d
426, 427
Wisconsin
Jenkins,
427-434; 259 NW2d
2d
80 Wis
Arkansas, 258 Ark
425, 435-437;
(1977); Turner v
Enoch,
App
Oregon
(1975);
Or
B. re- the state’s is whether inquiry Our second results without of blood test acquisition quest unconstitutional, whether the results should if test the statute is admissibility, independent despite possible or a suppressed sources of exception exclusionary possible good-faith rule. order did to the Our finding England question Appeals that the the Court of not cedi into case fell within the parameters of the statute. Nonetheless, stipulated England that his blood at trial defendant drawn for medical treatment: hereby stipulated ... It is Kozma Prosecutor]: Mr. [Assistant hereto, through by parties agreed their and between the and respective counsel, as follows: One, Emergency Dr. Norman was the Room that Carter supervised Emergency physician treated Room Team that that Defendant, England. Trevor withdrew Dr. Carter’s order that someone That it was under Defendant, for medical treatment. blood from the that, agreed your We have Mr. Kostin Counsel]: [Defense supplied.] [Emphasis Honor. Furthermore, police directed or not contend that the defendant does drawn, requested duced at trial evidence was ad- blood be and sufficient that purposes. to show that the blood was drawn for People v Perlos Opinion op the Court a search infringed warrant on defendants’ Fourth words, Amendment interests. In other privacy did defendants have privacy interests their blood existed, alcohol test If results? no privacy interests standing do not have challenge defendants government action.
The test to determine
if
person
protected
has a
Fourth Amendment
privacy right
is whether
expectation
reasonable
privacy
has
Katz v
area
invaded
by
government.
States,
United
389 US
S Ct
L Ed 2d
(1967).11
The test
was articulated
this Court
Smith,
1, 28;
420 Mich
It offers no exact that can be mechani- cally upon imposed a set of facts to determine does, standing whether or not is warranted. It however, provide the normal common-law value of [Id., p general practical direction and flexibility. 26.] proceeded to cite with approval from *11 Rakas v Justice Powell’s in concurring opinion Illinois, 128, 152; 421; 439 US 99 L S Ct 58 Ed 2d (1978), 387 where he stated ultimate ques- "[t]he tion, therefore, is whether one’s claim to privacy government from intrusion is in light reasonable Thus, of all surrounding circumstances.” Smith person’s Court determined that whether a expectation of is should privacy reasonable
11 origins This test has its in Justice Harlan’s concurrence in Katz. 436 Mich op Opinion the Court the cir- of considering totality after decided cumstances.12 in Perlos did not address Appeals of
The Court ex- expectation privacy a reasonable whether England, However, in test results. isted blood expectation found that the defendant’s the Court reasonable, stating: was not privacy (9) implied consent enacting By subsection the the statute, to limit Legislature has chosen so, doing evidentiary privilege. By scope of the people of the State Michigan, through the ac they Legislature, have indicated tion of their do not pri expectation of recognize a reasonable of a alcohol test taken vacy in the results blood accident, of a car in an where from the driver test was administered to medical treatment hospital pursuant by a staff App diagnosis. Mich [176 345.][13] expectation privacy the reasonable
Applying
case, we believe that defendants
test to the instant
test
expectation
their
subjective
shared
However,
not
we do
private.
would remain
results
blood
believe that
circumstances,
results,
is
under
these
alcohol
test
willing
to consider reasonable.
society
one which
Furthermore,
of United
we believe that a review
Supreme
relating
third-party
Court cases
States
v United
Couch
supports
analysis.
records
our
States,
322;
611;
In United States 425 S Ct 96 Secrecy Act 48 L Ed 2d Bank the that maintain certain of banks mandated Department Treasury records.14 The transactional the with all records subpoenaed bank connected respondent The was respondent’s activities. subse- arising tax-related crimes quently convicted of operation. liquor manufacturing illegal from an the respondent challenged subpoena on The the it search ground that constituted and seizure Id., 440. "private papers.” p his respondent The held that the had no Court the expectation privacy in records. reasonable belonged to The that records Court reasoned the respondent and the not claim bank that could Also, ownership or possession the records. of a subpoenaed slips checks were not deposit nature, but were confidential financial documents Court be used transactions. commercial legitimate privacy reasoned no voluntarily was existed because information exposed ordinary to the employees bank’s Also, Court stated course of business. legitimate expecta- Congress perceive did not any purpose tion of because records records which "have a the act to maintain 1829b(d). 12 use Mich Opinion of high degree criminal, tax, of usefulness in investigations proceedings.” regulatory 1820b(a)(l). USC *13 Lastly, Miller Court stated: the risk, depositor revealing The in the takes his another, affairs to conveyed by that the information be will . . . that to the Government. repeatedly has held that the Fourth Court This prohibit obtaining does not the Amendment information party and con revealed third veyed by the authorities, him Government if even assumption on revealed the information that only purpose will be used a limited and the it for placed party the third will not be confidence in
betrayed.[15]
US
[425
443.]
Several state courts
also dealt with similar
have
regarding
rights
privacy
issues
records
medical
samples.
supra,
Jenkins,
or blood
Wisconsin
charged
negligent
the defendant was
with
homi-
using
cide as a result of
a motor vehicle while
intoxicated. The defendant was in and out of con-
accident,
sciousness after an
and his blood was
purposes
drawn without
consent
of medical
for
his
prosecution
The
somehow
the
treatment.
results
obtained
prior to the defendant’s arrest. The doctor
analysis
who ordered the chemical
testified
at
preliminary examination,
defendant’s
de-
fendant
bound over for
trial. The defendant
challenged
admissibility
of the test results on
grounds,
Supreme
but
Fourth Amendment
admission of the evi-
Court Wisconsin allowed
it
Court stated
declined to address the issue of eviden-
The
tiary privileges in the context of
Id. at
n 4.
statement.
this
Maryland,
A similar
rationale was
in Smith v
employed
99 S Ct
61 L Ed 2d
where the
held that
petitioner
privacy
phone
had no reasonable
private
petitioner
his
The
numbers
the risk in
company might
residence.
assumed
dialed from
using
phone
phone
his
information transmitted
conveyed
government.
to the
v Perlos
Opinion of the Court
expecta-
dence. The court held that no reasonable
tion of
existed
either
the doctor’s testi-
mony or the test results. The basis of the court’s
precluded
was a Wisconsin statute which
decision
physician-patient privilege
applying
from
homicide trials.
(Ind App,
State,
In Pollard v
1982) appealed , the defendant his conviction for driving while intoxicated which resulted in the person. death of another collision, After a hospital defendant’s blood was drawn at a Although they probable treatment. had prosecution subpoenaed cause, the later the blood sample without a search warrant. The court noted exempted that a state statute blood alcohol test physician-patient privilege. results from the court dismissed the defendant’s Fourth Amend- challenge by noting *14 ment that to the use of the results sample privileged
the blood was not and was hospital, taken from the defendant could "not claim the not the defendant. The
right
of another to
be free from search and seizure.”
The defendant was convicted of
death
Dyal,
use of an
232;
automobile in State v
97 NJ
(1984).
collision,
meaningfully distinguishable from a host of other unpleasant privacy invasions of that are associated many with facets of health care. Unquestionably, some individuals’ concern for their own may medical attention. postpone lead them to avoid or to needed Nevertheless, pri- disclosures doctors, vate medical hospital information to personnel, companies, to insurance public and to agencies health part are often an essential practice modern medical may even when the disclosure unfavorably reflect on the character of the patient. Requiring representa- such disclosures to tives of having the State responsibility for the health community, does automatically not impermissible amount to an privacy. invasion of at [Id. 602.]_ (art 1). pertinent part, provision
tution
states that
§
"[a]ll
rights, among
. . .
men
are those of
possessing
have certain inherent and indefeasible
which
enjoying
defending
liberty,
acquiring,
life and
protecting property
reputation
. . .
*16
After Amendment tion, a Fourth rejected the Court statute, finding that cases stating challenge to right privacy such a affirmative, unannounced, narrowly fo- involve cused during the privacy intrusions into individual investigations. never We have course of criminal carried the pri- interest Fourth Amendment’s Roe us. appellees would have
vacy as far as the
604, n
do
now.
at
We decline to
so
[Id.
32.]
act
is the Bank
type
reporting
A similar
which
corresponding
regulations
Act and
Secrecy
suspicious
to report
financial
institutions
require
cur-
provision is that
banking activity. One such
$10,000
re-
over
have
transactions
rency
Shultz, Bankers Ass’n v
California
In
ported.18
(1974), the
privacy, 62 NC L R 255 18See 31 USC 5313 and 31 CFR 103.22. v Perlos Opinion op the Court protec- level, On the state all states have child require suspected tion statutes which child reported abuse be to state or local authorities.19 Michigan’s 25.248(3), law, 722.623; MCL re- quires therapists, psychologists, doctors, teachers, many report suspected others to child abuse to People Cavaiani, state authorities. 172 Mich *17 (1988), App 706; 432 NW2d lv den 432 Mich Appeals rejected the defen- therapist’s argument dant that the statute violated rights his Fourth Amendment patients. and those of his legislation placing reporting Similar a obligation 750.411; on medical institutions is MCL requires person- 28.643, MSA which that medical report by deadly weapons nel wounds inflicted to local authorities.
Applying expectation privacy the reasonable England, test to Perlos and we believe that defen- subjective expectation dants shared a their private. Generally, test results would remain infor- relating mation to medical treatment falls under physician-patient privilege, confi- remains dential.20 expectation
However, dowe not believe that an privacy results, in blood alcohol test under these society willing circumstances, is one which to objective aspect consider reasonable. To assess the 19Coleman, Creating therapist-incest exception offender to manda tory best, reporting psychiatrist child abuse statutes—When knows (1986). Many abrogate physh U Cinn LR of these statutes cian-patient privilege. 600.2157; provides part: MOL in 27A.2157 Except law, provided by person duly as otherwise a author- practice surgery any
ized to medicine or shall not disclose person acquired attending patient information that the has in character, professional necessary in a if the information was to prescribe patient physician, enable the for the as a any patient surgeon. to do act for the as a 436 Mich Opinion of the Court totality of the consider we must of this test circumstances "understandings searching society.”21 permitted by recognized and that are Although determinative, source ana- one not expectation lyzing is to of an the reasonableness Legislature. Pollard, In Jenkins to the look finding interest, the courts Fourth Amendment no exempted acknowledged that state statutes privilege physician-patient circum- in those analysis, part the United Also, of its as stances.22 States Supreme Miller, Court in United States Congress supra, rea- did not consider noted that privacy records in bank an sonable tax, criminal, their usefulness because per- investigations. regulatory Likewise, are we Michigan, 9, the under subsection suaded Legislature expec- an not consider reasonable does test results. in blood alcohol tation of Legislature patient abrogate physician-
decided granting prosecutors privilege by access Legislature abolished has the results.23 Nor test longstanding creating right by common-law *18 21 144, Illinois, supra, p n 12. Rakas v 22 Appeals supra, Copeland, Court of n 16 the Missouri In State v sample, the court in a blood but a Fourth Amendment interest found declined to the excepted apply which would have a new Missouri statute privilege in that case. 23 148, 151; People App 371 Traylor, 377 NW2d v 145 Mich In , privilege (1985), physician-patient had been that the the Court found 28.643, requires 750.411; by that impliedly MSA which amended MCL reported police by deadly weapons author to local inflicted wounds ities. The Court stated: privi- statute, creating general one such as the When a statute, reporting specific
lege, as the a such conflicts with exception statute, to specific to be an is considered statute general statute. omitted.] [Citation Appeals Cavaiani, People supra, where the Court v See also exception legislative reporting provision to a to be found a child abuse the privilege. Sands, Statutory support in 1A Sutherland can be found Further (4th ed), 23.09, p 331. § Construction 327 Perlos Opinion physician-patient privilege. to the exception which did right statutorily a created is privilege York Life Ins common law. See New not exist at Newman, 368; 18 NW2d Co v 311 Mich Boucher, 216; 345 App Mich People v (1983). fact, subject In is privilege NW2d it where exists exceptions states many to of statute.24 virtue has Legislature enacting subsection
By provisions with other consistently acted its belief expressing act implied consent drive, a diminished they encounter people when example, For under MCL privacy. 9.2325(3), to 257.625c; person presumed is MSA blood, urine, or breath tests given consent have various offenses related any if arrested or controlled under the influence alcohol driving 9.2325(1X6), 257.625a(6); MCL substances. Under peace of a request if a refuses test, blood, breath, urine officer submit suspended, license will be person’s operator’s person’s driving to that rec- points and six added ord.
Furthermore, strong there is a apparent it 9 of the interest reflected subsection public believe is aware of implied society consent act. We curtail drunken the need for effective laws to devastating Intoxicated drivers take driving. each year. human and financial toll alone, traffic Michigan there were fatal acci- alcohol related. Those accidents dents were lives, high- 46.5 of the total percent claimed prob- recent deaths that Nor is this a way year.25 (3d 98, 101-104, rev), 2380, 243-246, 249-258; McCormick, ed), pp Evidence §§ 3, 5, 6, (McNaughton Wigmore, 2388- ns § §§ 8 2391, Evidence 819-828, pp 853-868. Police, Department related fatal motor vehicle of State Alcohol *19 study Michigan, January-December, 1988. traffic accident 436 Mich Opinion op the Court legislatures Throughout nation, state lem. tragic problem wrestling been with this for have decades.26 persuaded public
We are interest furthered prosecution this act it because facilitates
of drunken drivers insures injured in drivers who are automobile accidents get prompt police will medical attention because injured will be less inclined to detain an driver for investigation. criminal carefully
We find subsection 9 to be a tailored only statute which allows test chemical results to narrowly be turned over to the state under defined requests circumstances, if the state them. For the apply accident, statute to there first must be an facility, must taken to a medical person must have been the driver of a vehicle personnel accident, involved in the and medical analysis, must order a chemical initiative, on their own for medical treatment. This is not a sweeping physician-patient abandonment of the privilege. only gain Prosecutors can access to They chemical test results. cannot obtain all of a person’s they records, nor can obtain a sample discretionary testing. blood their own Consequently, parameters, Leg- within narrow exception has islature created a minor to the physician-patient privilege. Thus, we conclude that Abram, Breithaupt 352 US 77 S Ct 1 L Ed 2d Supreme the United States Court stated: community living requires Modern modern scientific methods public go unprotected. of crime detection lest the ing slaughter The increas- highways, our on most which should be avoid- able, astounding figures only now reaches heard of on the States, measures, through safety
battlefield. The modern scien- methods, laws, using tific and strict enforcement of traffic are driving danger- all reasonable means to make automobile less ous. *20 v Perlos Opinion of the Court scope to an amount does not the enactment government on defen- for intrusion authorization Fourth Amendment interests. dants’ agree Furthermore, under- rationale we with the suggesting lying that there v Miller United States objectively no reasonable is in the Clearly, cannot test results. defendants ownership possession Also, results. claim as stated party, conveyed or Miller,
in information third revealed purpose, properly for a limited can even government if the informa- to the even cases, In these was revealed in confidence. tion purpose, limited medical blood was taken for a Eng- Miller, in in As both Perlos treatment. conveyed privileged. land, the information was not hospitals analysis, ob- the Miller once the Under purposes,27 it the results for medical would tained have been unreasonable for to assume defendants private.28 necessarily remain that the results would hospital employees very least, At the various be- in the normal come aware the test work. results Society places their a risk on course of persons dealings parties in their with third parties conveyed to third will not information remain private. Moreover, while in Miller government access all of re- allowed spondent’s case, records, bank in the instant only extremely limited and state could obtain portion medical of defendants’ overall well-defined records. statutory summary, persuasive analo- we find states, facility medical The last sentence of subsection or "[a] person disclosing compliance with this subsection shall information making civilly criminally for disclosure.” We do not be liable personnel immunity granting sentence to medical not read this as words, personnel "taking” In other medical unauthorized must still act of blood. acquiring responsibly in accordance with the law samples.
blood
many
n 17.
See
Note the
social uses for medical information
Roe, supra.
also Whalen v
child activity. impose obliga- financial tions These statutes parties report government third on types they might certain of information which happen upon during ordinary course of their jobs. personal Much of this information is commonly or financial data. These statutes are used and gath- An relied on. efficient information ering ing government type help- tool, this of statute is effective priorities.
to effectuate its We prevalence reporting view the statutes as clear *21 recognizes society evidence that as reasonable laws oblige parties report which third certain sensi- government. Furthermore, tive information to the consistently we note that these statutes have stood constitutional with- challenges. comparable reporting
Subsection 9 is to the acts imposes obligations to the personnel it extent on medical govern- to turn over information to the acquire during they ordinary ment which jobs. report- addition, course In of their unlike the ing impose obligations, acts which blanket under obligation subsection 9 to turn over informa- only upon request by tion is activated the state. By today, our decision we do not hold that unrestricted access to medical records is outside scope protection. of Fourth Amendment Rather, we hold that defendants do not have a protected Fourth Amendment interest in blood pre- alcohol test results under the circumstances Any expectation sented defendants these cases.
may have had test results was unjustified, given regard societal concerns with driving, Legislature’s implied drunken ment of the resulting holding, amend-
physician-patient privilege,
minimal
intrusion on defendants.
so
recognize
defendants,
we also
v Perlos
Opinion of the Court
conveying information
to the hospitals,
assumed
hospitals might
the risk that
disclose informa-
tion to the state. We find that
257.625a(9);
MCL
9.2325(1)(9)
Const,
does not violate US
Am
1963,
1,
IV or Const
art
11.
§
EQUAL
III.
PROTECTION CHALLENGE TO
SUBSECTION
The next
issue we must address
is whether
subsection
9 is constitutionally
valid under
Equal
Const,
Protection Clauses of US
Am XIV
1,
and Const
art
2.§
Court,
This
in Manistee Bank & Trust Co v
McGowan,
Mich
tion test interest which have courts applies the court a "strict scrutiny” requiring the state to "compelling” show a
justifies Rarely classification. legislation sustained subjected to this standard of review. legislation, Other principally social and eco- nomic, subjected to review under the traditional equal protection test. The burden is on the challenging the classification to show that it is
without that justification. reasonable It has been said *22 statutory discrimination will not be set "[a] if any aside conceived state of facts reasonably may be justify
to
it.” A classification will stand
unless it is shown to be "essentially arbitrary.”
Few statutes have been
wanting
found so
in "ra-
tionality” as to fail
satisfy
to
"essentially
the
arbitrary” test.
Perlos,
the Court of Appeals held that
defendants’
fundamental
right
to be free from
unreasonable
searches and seizures had been vio-
Therefore,
lated.
a strict
scrutiny
analysis was
given to drivers who not conscious hospital. App Mich [170 89-90.] agree. We that no fundamental do not find We Fourth Amendment
right
by the
violated
persuaded
Furthermore,
treat-
we are
statute.
ing hospitalized
under
who
not
individuals
are
differently from
are
arrested drivers who
arrest
not
hospital
not raise the level
does
scrutiny. Thus,
to strict
we conclude
examination
that
hospitalized persons,
arrest,
not
not under
do
"suspect”
class.
constitute
"principally
as
Subsection 9 can be classified
legislation. Therefore,
our
social
inquiry
tionally
economic”
ra-
the "classification
is
whether
itself
governmental
legitimate
in-
related
Dep’t Agriculture v Mo-
terest.” United States
528, 533;
reno, 413
S Ct
37 L Ed 2d
(1973).
agree
Appeals
England:
the Court of
We
with
possible
safety.
statutory
If
One
rational basis is
procedure requires a driver
involved in an acci-
test
dent
arrested before the blood alcohol
administered,
procedure
lead to
were
would
injured
delays
arresting
treatments
drivers while
steps necessary
took
for a
officers
Second,
attempt
legal
to combat
arrest.
property damage cost in lives and
tremendous
Legislature
"to
our
has chosen
ease
society,
prosecution
of drunk drivers
have been
[who
making the results of
involved in an accident]
*23
People
Perlos
v
Opinion of the Court
performed by hospitals
blood alcohol tests
avail-
prosecutors,
able to
cumbersome
Mich
Mich
without
the use of otherwise
procedures.” Stoney,
(1987).
721, 726;
App
may very properly be addressed to to legislature, go the the tionality.” judiciary—they but not law, expediency and not to its constitu- responsibility drawing for society lines in a complex identifying priorities, as as ours—of weighing the choosing relevant considerations and competing Legisla- between alternatives—is ture’s, quired: judiciary’s. not the Perfection is not re- drawing of lines that create distinctions is "[T]he peculiarly one. Perfection in tions is neither legislative task and an unavoidable
making the necessary classifica- possible necessary.” nor One reasonable basis subsection 9 underlying is safety. By "easing prosecution” of drunken drivers, Legislature paved has way safer travel in Michigan. We find that subsection is rationally legitimate related state interest. we Accordingly, hold that subsection 9 of the implied consent act is constitutional under US Const, XIV, Am 1 and Const art 2. § §
IV. CONCLUSION We hold that subsection 9 of implied consent 436 Mich Opinion Levin, J. Dissenting constitutionally Const, Am valid under
act *24 Equal 1, § 11, the art and Const IV and Const, XIV and Am Clauses of Protection 1, § Therefore, 2. the test results art Const suppressed improperly in the Perlos cases. were constitutional we find subsection to be Because Equal Pro- Amendment and the under the Fourth unnecessary Clause, reach find it the tection we suppressed the evidence should be issues whether Appeals prop- in Perlos the Court of and whether erly the decision remanded the case. We reverse of Appeals Perlos, we remand the the Court of and district court. We affirm the cases the Perlos England. Appeals the of Court of decision JJ., concurred Brickley, Boyle, Griffin, C.J. Riley, with (dissenting). question presented The J.
Levin, constitutionality of amendment of concerns the an providing Michigan § 625a of Vehicle Code if of a that after accident driver motor transported involved in the accident to a vehicle is facility sample is and a of his blood with- medical purpose at the time for the of medical drawn analysis treatment, results of chemical sample in a shall be admissible criminal prosecution crimes there described to certain presence the amount alcohol or of a con- show substance, trolled facility person performing medical or [t]he analysis shall disclose results of the
chemical analysis requests to a prosecuting attorney who prosecution results for in a as use criminal provided this subsection.[1] by 1982 The amendment enacted PA 310 which added subsec 9.2325(1)(9). (9) 257.625a(9); 625a. MCL tion to § Perlos Dissenting Opinion Levin, J. language, requir- quoted hold that We would performing facility ing the medical analysis the results to disclose chemical analysis requests attorney prosecuting who prosecution, is in a criminal for use the results unconstitutional.2 by the state a search statute authorizes
The person’s records of a a warrant without exigent showing probable cause without circumstances.3 majority does not that a driver declares privacy expectation reasonable
have a analysis "we do not because of á chemical results in blood that an believe circumstances, results, is these test under alcohol willing society reason- to consider one which *25 able.”4 disagreement. The ma our is the nub of
There
justifying
We
chemical
analysis
quoted language
made
Schmerber
the results obtained
908
Ed 2d 1081
(1957),
rule
and
search warrant.
"there was
an
whether
search or
and
determining
as reasonable.”
4Ante, p 318.
See
intoxicating liquor,”
Breithaupt
In
expectation
thus see no need to
(1966),
charge
quoted
applicable
applicable
each
was decided before
were
that
analysis
seizure,”
the officer
decided after
v
him with
plainly probable
(1961),
of the consolidated
whether
California,
provided pursuant
expectation
v
Smith,
(Emphasis
in state court
to the states
before the commencement
Abram,
would be
"the court
made
other than on the basis
majority
directing
driving
420 Mich
"a defendant
express
Mapp
384 US
the federal search
is one
the federal Search
added.)
admissible
cause for the officer
an
that
through
must decide whether
opinion
criminal
v
an
automobile
1, 28;
to a
that
Ohio,
object
757, 768;
cases,
taking
432;
there' were
opinion
request
may
society
the Fourteenth
A an medical records are personal persons willingly matter. Few would share their medical records with the state. today’s society, undergo person a little has choice but facility,
medical treatment at a medical generally operate by by licensed and authorized to persons ability Few state. have obtain homes, medical treatment persons in their and even such necessity, employ physicians would, of medically persons other subject trained who would be statutory edict. by A driver does not consent to a search state of his medical records for the results of a analysis ingesting chemical holic of his blood alco- beverages driving substance, or a controlled a becoming vehicle, motor involved an automobile permitting transported accident, himself to be facility, allowing sample of his blood purpose to be withdrawn for the of medical treat- ment.
Under the circumstance who be- accident, comes involved of medical to automobile in need *26 ordinarily treatment, no has choice but permit transported himself to be to a medical facility allow blood to be withdrawn for the
5 Ante, p 318. 6 1984) (Mo Copeland, v App, State Cf. (dictum); 680 SW2d 330 Hipp, 345, 354-355; Super Commonwealth 380 A2d 1086 Pa 551 (1988) (dictum). v Perlos 337 Dissenting Opinion by Levin, J. treatment, of purpose emergent medical and hav- ing personal mind the intensely nature of medi- records, cal the permission granted by driver purpose—to such the medical and not facility7 to the state—differs from lodging, nonemergent circumstances, accountant,8 tax records with an or financial records with a bank.9 are person’s Nor garbage records like left for collection at curtilage curb outside the of the home.10
Nor do we think it importance of Legis- lature, by enacting 625a, the amendment has § expressed a policy permitting a search of medi- cal records for the purpose obtaining the results of chemical of a analysis driver’s blood. The consti- tutional protection against unreasonable searches and seizures is a limitation on power gov- ernment cannot legislative be avoided by decree. Legislature While the may power have the modify physician-patient it privilege, does not have the power modify scope of the Search and Seizure Clause. Roe,
We note conclusion that Whalen v 429 589, 605-606; 869; 97 S Ct 51 L Ed 2d where the Court sustained the constitutionality a statute requiring that physicians identify pa obtaining tients prescription certain drugs so that their names and addresses could be recorded in a centralized computer state, maintained Court said:_ sure, facility person performing To be the medical the chemical
analysis they is not the state. Were to disclose the results of the statute, analysis ques chemical without the constraint of a different presented. tion would be States, 322; 611; See Couch v United 409 US 93 S Ct 34 L Ed 2d (1973). Miller, 435; 1619; See United States v 425 US 96 S Ct 48 L Ed 2d (1976). Greenwood, See California v 486 US 108 S Ct 100 L Ed (1988). 2d 30 *27 436 Mich by Dissenting Opinion Levin, J. decided. we have not
A final word about issues of the threat are not unaware We of vast amounts implicit in the accumulation computerized data banks personal information in The collection government massive files. or other taxes, and social the distribution of welfare health, benefits, supervision public security Forces, and the en our Armed the direction of require the criminal laws all forcement of the preservation great quantities of informa orderly tion, personal in character much of which is embarrassing harmful if disclosed. potentially or public right use such data for The purposes to collect and accompanied by a concomi typically statutory regulatory duty or to avoid unwar tant Recognizing that in some cir ranted disclosures. roots in the duty arguably that has its cumstances Constitution, statutory New York’s nevertheless scheme, pro implementing administrative and its with, cedures, proper pro evidence a concern of, privacy. We the individual’s interest tection not, not, any question need and do decide therefore might presented by unwarranted which private data—whether disclosure accumulated system or unintentional—or intentional comparable provisions. We security did not contain simply hold that this record does not establish right protected by the any liberty invasion of Fourteenth Amendment.11 Cavanagh Archer, concurred with JJ., Levin, J._ separate concurring opinion stating Brennan filed a Justice "face, not, deprivation amount of constitu
the statute did tionally protected privacy on its interests, any than the more tradi more reporting provisions.” Id. at 607. tional