People v. Anstey

719 N.W.2d 579, 476 Mich. 436

Opinions

CORRIGAN, J.

Defendant was arrested for operating a motor vehicle while under the influence of intoxicating liquor or with an unlawful blood alcohol level (OUIL/UBAL), a violation of MCL 257.625(l)(a) or (b). Following defendant’s arrest, defendant agreed to take a police officer-administered chemical breath test of defendant’s bodily alcohol level. Under MCL 257.625a(6)(d), after having agreed to take the police-administered test, defendant was entitled to “a reasonable opportunity to have a person of his or her own choosing administer” an independent chemical test. The prosecution does not dispute the district court’s ruling that the statute was violated.

We granted leave to appeal in this case and directed the parties to include among the issues briefed: (1) whether dismissal is the proper remedy for the denial of an independent chemical test in violation of MCL 257.625a(6)(d); and (2) whether People v Koval, 371 Mich 453; 124 NW2d 274 (1963), was correctly decided. 474 Mich 886 (2005).

We conclude that because the statute does not specify a remedy, dismissal is not warranted for a statutory violation. In so holding, we specifically overrule Koval, supra, and its progeny. We hold, however, that when the trial court determines that the defendant was deprived of his or her right to a reasonable opportunity for an independent chemical test under MCL 257.625a(6)(d), the court may instruct the jury that the defendant’s statutory right was violated and that the jury may decide what significance to attach to this fact. We also hold that defendant’s due process right to present a defense was not violated.

I. FACTS

Defendant was stopped by the police and arrested for OUIL/UBAL. The police transported defendant to jail and requested that he take a chemical breath test. Defendant agreed to take the test. It reflected that his body alcohol level was 0.21 grams per 210 liters of breath, plainly above the legal limit.¹ Defendant then asked the arresting officer to transport him to a medical facility in Indiana for an independent chemical test, but the officer refused to do so. Defendant next asked the officer to transport him to Watervliet Community Hospital, about a 15- to 20-minute drive from the jail. The officer again refused, but offered to take defendant to Lakeland Hospital/St. Joseph Medical Center, a nearby location where the police routinely took suspects for chemical tests. Defendant refused this offer, apparently because he did not believe that he could obtain a truly independent test there. Consequently, defendant never received an independent test of his body alcohol level.

Defendant was charged with OUIL, second offense, and/or UBAL, second offense, MCL 257.625(l)(a) or (b); MCL 257.625(8)(b).² Defendant moved to dismiss the charges because the arresting officer unreasonably denied his request for an independent chemical test under MCL 257.625a(6)(d). The district court found defendant’s request to go to the Indiana hospital unreasonable because the officer would have had to travel outside his jurisdiction. But the district court found that defendant’s request to go to Watervliet Hospital for an independent chemical test was reasonable, and that the officer violated MCL 257.625a(6)(d) by failing to honor defendant’s request. The court determined that dismissal of the charges would be an “inappropriate and somewhat draconian” remedy because defendant was not completely denied his right to an independent chemical test, because he was given the opportunity to obtain such a test at Lakeland Hospital. Instead, the court held that suppression of the results of the police-administered chemical test was the proper remedy.

The Berrien County Trial Court reversed, ruling that Koval and its progeny interpreting MCL 257.625a had consistently held that dismissal was the appropriate remedy for the unreasonable denial of an independent chemical test. The court held that the Legislature would have specifically provided for a different remedy or amended the statute to provide for a different remedy if it had not intended for the remedy to be dismissal. Instead, the Legislature had silently acquiesced to the remedy of dismissal by not amending the statute in light of Koval and subsequent Court of Appeals decisions holding that dismissal is the appropriate remedy. The trial court then remanded to the district court for entry of an order dismissing the charges.

The Court of Appeals affirmed. People v Anstey, unpublished opinion per curiam of the Court of Appeals, issued February 8, 2005 (Docket No. 255416). We granted the prosecution’s application for leave to appeal. 474 Mich 886 (2005).

II. STANDARD OF REVIEW

The prosecutor challenges whether dismissal of the charges against defendant was appropriate under MCL 257.625a(6)(d). Questions of statutory interpretation are questions of law that this Court reviews de novo. People v Denio, 454 Mich 691, 698; 564 NW2d 13 (1997).

III. ANALYSIS

A. MCL 257.625a(6)(d)

The question before this Court is whether the Legislature intended that a violation of MCL 257.625a(6)(d) should result in dismissal of the case because the officer unreasonably denied defendant’s request for an independent chemical test administered by a person of his own choosing.³ “The primary goal in construing a statute is ‘to give effect to the intent of the Legislature.’ We begin by examining the plain language of the statute.” People v Stewart, 472 Mich 624, 631; 698 NW2d 340 (2002) (citations omitted).

The right to a reasonable opportunity to have an independent chemical test is created by statute, MCL 257.625a(6)(d):

A chemical test described in this subsection shall be administered at the request of a peace officer having reasonable grounds to believe the person has committed a crime described in section 625c(l). A person who takes a chemical test administered at a peace officer’s request as provided in this section shall be given a reasonable opportunity to have a person of his or her own choosing administer 1 of the chemical tests described in this subsection within a reasonable time after his or her detention. The test results are admissible and shall be considered with other admissible evidence in determining the defendant’s innocence or guilt. If the person charged is administered a chemical test by a person of his or her own choosing, the person charged is responsible for obtaining a chemical analysis of the test sample. [Emphasis added.]

Notably, the Legislature did not specify what remedy to apply if a police officer failed to advise, or denied, a defendant of his or her right to a reasonable opportunity to obtain an independent chemical test.

By contrast, the Legislature has clearly specified that if a prosecutor fails to comply with subsection 8 of MCL 257.625a, the remedy available to a defendant for violation of subsection 8 of the statute is suppression of the results of the state-administered chemical test.⁴ Had the Legislature intended a comparable remedy for a violation of subsection 6(d) — or even the more drastic remedy of dismissal — it could have so specified. People v Monaco, 474 Mich 48, 58; 710 NW2d 46 (2006) (citation omitted) (“ ‘Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute ....’”).

MCL 257.625a(7) is also noteworthy. At the time defendant was arrested, MCL 257.625a(7) provided, in pertinent part, as follows:⁵

The provisions of subsection (6) relating to chemical testing do not limit the introduction of any other admissible evidence bearing upon the question of whether a person was impaired by, or under the influence of, intoxicating liquor ...

Footnotes

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[6]

Subsection 7 indicates that, notwithstanding the provisions regarding chemical testing evidence set forth in subsection 6, the Legislature intended to allow the prosecution to go forward on other evidence establishing impaired operation of a motor vehicle. Given this statutory language, a prosecutor could adduce evidence relating to a defendant’s erratic driving, inability to perform field sobriety tests, or slurred speech, as well as other evidence tending to establish the defendant’s impairment. Reading this subsection together with subsection 6, it would seem that the Legislature’s intent, whether or not MCL 257.625a(6)(d) was violated, was to permit a prosecutor to go forward under MCL 257.625(l)(a) (OUIL) using other evidence, beyond chemical testing, to establish guilt. Dismissal, therefore, was not an anticipated remedy.⁷

Notwithstanding the absence of statutory language mandating dismissal for a violation of MCL 257.625a(6)(d), the trial court and the Court of Appeals held that dismissal of the charges against defendant was required because of this Court’s ruling in Koval, supra. This Court interpreted a previous version of MCL 257.625a(6)(d) in Koval, supra. In that case, the defendant was stopped for driving while intoxicated. Koval, supra at 456-457. The police officers failed to advise the defendant of his right to have an independent chemical test, contrary to the defendant’s statutory right.⁸ The previous version of the statute, like the present version, did not provide a remedy. This Court held that noncompliance with the mandatory statutory requirement required dismissal of the charges against the defendant. Id. at 459. In reaching this conclusion, this Court cited the mandatory form of the statute and noted that the statute “was enacted for the protection and benefit of a defendant charged with operating a motor vehicle while under the influence of intoxicating liquor.” Id. at 458.⁹

As discussed, the text of the statute makes clear that the Legislature did not intend the remedy of dismissal to follow from a violation of the right to a reasonable opportunity for an independent chemical test. Additionally, our case law supports the conclusion that neither dismissal nor suppression of the evidence is an appropriate remedy for a violation of MCL 257.625a(6)(d). In People v Hawkins, 468 Mich 488, 512-513; 668 NW2d 602 (2003), this Court held that the exclusionary rule is “a harsh remedy designed to sanction and deter police misconduct where it has resulted in a violation of constitutional rights . ..(Emphasis partially deleted.) This appeal also involves violation of a statutory right, not a constitutional right.¹⁰ This Court “reaffirm[ed] that where there is no determination that a statutory violation constitutes an error of constitutional dimensions, application of the exclusionary rule is inappropriate unless the plain language of the statute indicates a legislative intent that the rule be applied.” Id. at 507. Where there is nothing in the statutory language indicating that the exclusionary rule applies to a violation of a statute, this Court should decline to infer such legislative intent, because “[t]o do otherwise would be an exercise of will rather than judgment.” People v Stevens (After Remand), 460 Mich 626, 645; 597 NW2d 53 (1999) (emphasis in original). This Court has repeatedly applied these principles in holding that suppression of the evidence is not an appropriate remedy for a statutory violation where there is no indication in the statute that the Legislature intended such a remedy and no constitutional rights were violated. See, e.g., Hawkins, supra; People v Hamilton, 465 Mich 526; 638 NW2d 92 (2002), overruled in part on other grounds in Bright v Ailshie, 465 Mich 770, 775 n 5; 641 NW2d 587 (2002); People v Sobczak-Obetts, 463 Mich 687; 625 NW2d 764 (2001);¹¹ and Stevens, supra. Applying similar reasoning, we hold that dismissal, which is an even more drastic remedy, is not an appropriate remedy for a statutory violation unless the statute clearly provides otherwise. The language of MCL 257.625a does not reveal that the Legislature intended to impose the drastic remedy of dismissal or suppression of the evidence when an officer fails to give a defendant a reasonable opportunity for an independent chemical test. Accordingly, neither of these remedies is appropriate for a violation of MCL 257.625a(6).¹² We overrule Koval’s holding to the contrary.¹³

But while the text of MCL 257.625a shows that the Legislature did not intend that dismissal or suppression of the evidence follow from a violation of subsection 6(d), the language of the statute does not render this Court powerless to act in the face of a police agency’s violation of a defendant’s statutory right to obtain potentially exculpatory evidence under MCL 257.625a(6)(d). Through MCL 257.625a(6)(d), the Legislature conferred on defendants a statutory right to develop potentially exculpatory evidence to refute the results of a police-administered chemical test. Thus, when a police officer denies a defendant his or her statutory right to a reasonable opportunity for an independent chemical test administered by a person of his or her own choosing, the officer prevents the defendant from exercising a statutory right to discover potentially favorable evidence in his or her defense.

The jury should be permitted to weigh the police officer’s wrongful conduct as well as the statutory right that the officer denied. When the defendant argues before trial that he or she was deprived of a reasonable opportunity for an independent chemical test, the trial court must determine, after an evidentiary hearing if necessary, whether the defendant was in fact deprived of this statutory right. If the court determines that a statutory violation occurred, then it is free, upon request of defense counsel, to inform the jury of this violation and instruct the jury that it may determine what weight to give to this fact. Such a jury instruction is an appropriate consequence for the violation of a mandatory statutory right to a reasonable opportunity for an independent chemical test because it will accord meaning to the right created in subsection 6(d) without creating a remedy that the Legislature did not intend. A jury instruction will also presumably deter police officers from violating that right in the future. We offer the following possible instruction for violations of MCL 257.625a(6)(d):

Our law provides that a person who takes a chemical test administered at a peace officer’s request must be given a reasonable opportunity to have a person of his or her own choosing administer an independent chemical test. The defendant was denied such a reasonable opportunity for an independent chemical test. You may determine what sig nificance to attach to this fact in deciding the case. For example, you might consider the denial of the defendant’s right to a reasonable opportunity for an independent chemical test in deciding whether, in light of the nonchemical test evidence, such an independent chemical test might have produced results different from the police-administered chemical test.[14]

The court’s authority to give such an instruction derives from the inherent powers of the judiciary. Const 1963, art 6, § 5, entrusts this Court with the authority and duty to prescribe general rules governing the practice and procedure in all courts in the state.¹⁵ See People v Glass (After Remand), 464 Mich 266, 281; 627 NW2d 261 (2001). “ ‘It is also well settled that under our form of government the Constitution confers on the judicial department all the authority necessary to exercise its powers as a coordinate branch of government.’ ” Maldonado v Ford Motor Co, 476 Mich 372, 390; 719 NW2d 809 (2006), quoting In re 1976 PA 267, 400 Mich 660, 662-663; 255 NW2d 635 (1977). The judicial powers derived from the constitution may not be diminished, exercised, or interfered with by other branches of the government. Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 162; 665 NW2d 452 (2003). Exercising this authority, our Court has enacted court rules that require the trial court to instruct the jury on the applicable law and give the court the discretion to comment on the evidence:

Before or after arguments or at both times, as the court elects, the court shall instruct the jury on the applicable law, the issues presented by the case, and, if a party requests as provided in subrule (A)(2), that party’s theory of the case. The court, at its discretion, may also comment on the evidence, the testimony, and the character of the witnesses as the interests of justice require. [MCR 2.516(B)(3).][16]

Additionally, the Legislature has directed the judiciary to instruct the jury on the law and permitted a court to comment on the evidence:

It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. The court shall instruct the jury as to the law applicable to the case and in his charge make such comment on the evidence, the testimony and character of any witnesses, as in his opinion the interest of justice may require. [MCL 768.29.]

Thus, the judiciary has the authority and obligation under both court rule and statute to instruct the jury on the applicable law and the discretionary power to comment on the evidence as justice requires. The Legislature has not stripped the judiciary of these powers in this context.¹⁷

It is also well-established in our case law that the trial court must instruct the jury on the law applicable to the facts of the case:

“ [I]t is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner, so that they may have a clear and correct understanding of what it is they are to decide, and he should state to them fully the law applicable to the facts. Especially is this his duty in a criminal case.” [People v Henry, 395 Mich 367, 373-374; 236 NW2d 489 (1975), quoting People v Murray, 72 Mich 10, 16; 40 NW 29 (1888).]

The trial court must instruct the jury not only on all the elements of the charged offense, but also, upon request, on material issues, defenses, and theories that are supported by the evidence. People v Rodriguez, 463 Mich 466, 472-473; 620 NW2d 13 (2000); People v Reed, 393 Mich 342, 349-350; 224 NW2d 867 (1975).

The trial court’s authority to comment on the evidence encompasses the power to summarize the evidence relating to the issues, call the jury’s attention to particular facts, People v Lintz, 244 Mich 603, 617; 222 NW 201 (1928), and “point out the important testimony so as to lead the jury to an understanding of its bearings,” Richards v Fuller, 38 Mich 653, 657 (1878). The trial court’s comments must be fair and impartial, Burpee v Lane, 274 Mich 625, 627; 265 NW 484 (1936), and the court should not make known to the jury its own views regarding disputed factual issues, People v Young, 364 Mich 554, 558; 111 NW2d 870 (1961), the credibility of witnesses, People v Clark, 340 Mich 411, ; 65 NW2d 717 (1954), or the ultimate question to be submitted to the jury, Lintz, supra at 617-618.¹⁸

The instruction we offer falls within the court’s inherent authority to instruct the jury on the law applicable to the case and the discretionary power to comment on the evidence.¹⁹ A defendant who is denied the statutory right to a reasonable opportunity for an independent chemical test administered by a person of his or her own choosing may advance the defense that the police-administered test was inaccurate,²⁰ and that the police deprived him or her of the opportunity to raise a reasonable doubt of guilt through an independent test. The trial court may instruct and inform the jury on the requirements of MCL 257.625a(6)(d) and properly comment on the evidence by bringing to the jury’s attention that the defendant’s statutory right has been violated. Such an impartial instruction will communicate no opinion and compel no outcome, but will only inform the jury of the law and the facts and allow the jury to draw its own conclusions. Thus, it will not encroach upon the exclusive province of the jury to weigh the testimony and draw inferences therefrom. People v Larco, 331 Mich 420, 430; 49 NW2d 358 (1951); People v Dupree, 175 Mich 632, 639; 141 NW 672 (1913).

Such an instruction will also advance the judiciary’s duty to assist the jury in ascertaining the truth. The late Joseph D. Grano once stated that “the goal of discovering the truth should play a dominant role in designing the rules that govern criminal procedure.” Grano, Confessions, Truth, and the Law (Ann Arbor, The University of Michigan Press, 1993), p 6; see also Grano, Implementing the objectives of procedural reform: The proposed Michigan Rules of Criminal Procedure—Part I, 32 Wayne L R 1007, 1011, 1018 (1986); and Grano, Special issue: Introduction — The changed and changing world of constitutional criminal procedure: The contribution of the Department of Justice’s Office of Legal Policy, 22 U Mich J L Reform 395, 402-404 (1989). In analyzing the underlying purposes and objectives of procedural reform, Grano stated:

[T]he primary objective of criminal procedure is to facilitate the ascertainment of truth. To some extent, therefore, fairness must encompass this concern. Accordingly, rules are unfair when they do not provide either party an adequate opportunity to develop and present his case. The special concern with fairness for the defendant, however, stems from the special abhorrence of erroneous conviction. Thus, basic agreement exists that a rule is unfair if it denies the defendant an adequate opportunity to defend against the charges. [Grano, Implementing the objectives of procedural reform: The proposed Michigan Rules of Criminal Procedure — Part I, 32 Wayne L R 1007, 1018 (1986).]

Promoting the truth-seeking process is one of the judiciary’s primary goals in determining the appropriate action to take when one party prevents the other from obtaining evidence. Justice MARKMAN has explained that “[t]he discovery of the truth is essential to the successful operation of the system’s mechanisms for controlling crime and mitigating its consequences.” Mark-man, Special issue: Foreword: The “truth in criminal justice” series, 22 U Mich J L Reform 425, 428 (1989).²¹

By placing all the facts before the fact-finder, the instant instruction will further the pursuit of the truth and give real effect to the right in MCL 257.625a(6)(d). This instruction will promote a basic premise of our justice system, that providing more, rather than less, information will generally assist the jury in discovering the truth. It will communicate an accurate account of what transpired and allow the jurors to apply the law to the facts as they decide. Where evidence or a witness is unavailable or compromised because of the conduct of prosecutors and police officers, the court should not keep more evidence away from the jurors, but should rather give the jurors all the pertinent information, including what has been denied to them, and allow them to assess the consequences.²²

Prohibiting the trial court from instructing the jury regarding a violation of MCL 257.625a(6)(d) would keep relevant information from the jury by concealing the denial of the defendant’s statutory right to develop potentially exculpatory evidence. Not only would this impede the jury’s search for the truth, but it would permit police officers to ignore a defendant’s mandatory statutory right to a reasonable opportunity for an independent chemical test administered by a person of his own choosing without consequence. Thus, in light of our general power to instruct and comment on the evidence in criminal cases, and the trial’s goal of promoting the search for truth, we conclude that in these narrow circumstances, the courts may give a jury instruction informing the jury that MCL 257.625a(6)(d) was violated.

While we hold that the trial court may give a jury instruction where there is a violation of MCL 257.625a(6)(d), an instruction is not necessarily appropriate for a violation of every statutory right where the statute does not provide a remedy. It is appropriate in this case because it gives meaning to the statutory right to a reasonable opportunity for an independent chemical test administered by a person of his or her own choosing and is consistent with the judicial power to instruct on the law and comment on the evidence in the interests of justice. We limit application of the instruction to the statute at issue.

B. DUE PROCESS

Defendant argues that the violation of MCL 257.625a(6)(d) also violated his due process right to present a defense. Because the parties dispute whether a constitutional violation occurred and Justice CAVANAGH argues that defendant’s due process rights were violated, we address the constitutional issue despite the lower courts’ decisions not to base their rulings on any constitutional violation.²³ But we address only the constitutional issue and offer no opinion on the correctness of the district court’s ruling that the officer violated the statute, because that is not at issue in this case.

A criminal defendant has a right to present a defense under our state and federal constitutions. US Const, Ams VI, XIV; Const 1963, art 1, §§ 13, 17, 20; People v Hayes, 421 Mich 271, 278; 364 NW2d 635 (1984). “[T]he right to present a defense is a fundamental element of due process .. . .” Id. at 279. In Pennsylvania v Ritchie, 480 US 39, 56; 107 S Ct 989; 94 L Ed 2d 40 (1987), the United States Supreme Court stated, “Our cases establish, at a minimum, that criminal defendants have the right to . . . put before a jury evidence that might influence the determination of guilt.”

Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed “what might loosely he called the area of constitutionally guaranteed access to evidence.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867[ 102 S Ct 3440; 73 L Ed 2d 1193] (1982). Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system. [California v Trombetta, 467 US 479, 485; 104 S Ct 2528; 81 L Ed 2d 413 (1984).]

Defendant argues that his due process right to obtain potentially exculpatory evidence was violated under Arizona v Youngblood, 488 US 51; 109 S Ct 333; 102 L Ed 2d 281 (1988), because the officer acted in bad faith in denying defendant’s request to be taken to Watervliet Hospital for an independent chemical test. We disagree. In Youngblood, supra at 57-58, the United States Supreme Court held that the government’s failure to preserve potentially exculpatory evidence violates a criminal defendant’s due process rights if the defendant can show bad faith on the part of the government. Youngblood is distinguishable because it involves the government’s failure to disclose existing evidence in its possession, where the instant case involves defendant’s right to develop potentially exculpatory evidence not in the government’s possession.²⁴ For due process purposes, there is a crucial distinction between failing to disclose evidence that has been developed and failing to develop evidence in the first instance. People v Stephens, 58 Mich App 701, 705; 228 NW2d 527 (1975). Defendant has cited no cases holding that Youngblood and its progeny apply when the government fails to turn over evidence that has yet to be developed. Because the instant case involves, the failure to develop evidence, as opposed to the failure to disclose existing evidence, the bad-faith test in Youngblood is inapplicable.

Defendant’s right to present a defense was not violated because the police have no constitutional duty to assist a defendant in developing potentially exculpatory evidence. Just as the police have no constitutional duty²⁵ to perform any chemical tests, Youngblood, supra ,²⁶ they have no constitutional duty to assist the defendant in obtaining an independent chemical test.²⁷ See, e.g., In re Martin, 58 Cal 2d 509, 512; 374 P2d 801; 24 Cal Rptr 833 (1962) (in holding that the police are not required to assist a defendant in obtaining a chemical test, the California Supreme Court explained that “police officers are not required to take the initiative or even to assist in procuring evidence on behalf of a defendant which is deemed necessary to his defense”); and People v Finnegan, 85 NY2d 53, 58; 647 NE2d 758, 623 NYS2d 546 (1995) (“law enforcement personnel are not required to arrange for an independent test or to transport defendant to a place or person where the test may be performed” because “police have no affirmative duty to gather or help gather evidence for an accused”). Thus, the police have no constitutional duty to take affirmative action to transport the defendant from the place of his or her incarceration to a hospital of his or her choice for the requested test. State v Choate, 667 SW2d 111, 113 (Tenn Crim App, 1983) (where the defendant argued that he had a constitutional right to police assistance in obtaining an independent chemical test whether or not he complied with the statute requiring him to take a police-administered test, the court held that the police have no “affirmative [constitutional] duty to make a blood test available to the defendant by transporting him from the place of his incarceration to a hospital for the requested test”). Thus, the officer’s actions in the instant case did not violate defendant’s due process rights because the officer had no constitutional duty to assist defendant in obtaining an independent chemical test by transporting defendant to Watervliet Hospital.²⁸

IV CONCLUSION

The statutory text does not reflect that the Legislature intended either dismissal or suppression of the evidence to be the remedy for a violation of MCL 257.625a(6)(d). Accordingly, we overrule Koval and its progeny. Instead, we hold that a permissive jury instruction may be appropriate when the trial court has determined that there was a violation of MCL 257.625a(6)(d). When the Legislature established the right of a defendant to seek an independent chemical test, it intended to allow that defendant to use the test to rebut evidence produced by the prosecutor at trial. A jury instruction will give meaning to that right by placing all relevant information, including the requirements of the statute, before the fact-finder. Such an instruction in this circumstance is an appropriate func tion of the judicial power that will ensure the integrity of the criminal trial and further the pursuit of the truth. We also hold that defendant’s due process right to present a defense was not violated.

We reverse the judgment of the Court of Appeals and remand the matter to the trial court for reinstatement of the charges against defendant. At trial, the results of the police-administered chemical test shall be admissible, but the trial court may instruct the jury that the police violated defendant’s statutory right to a reasonable opportunity for an independent chemical test.

Taylor, C. J., and Young and Markman, JJ., concurred with Corrigan, J.

1

At the time defendant was arrested, MCL 257.625(1) set the statutory intoxication threshold at a body alcohol content of 0.10 grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. Pursuant to 2003 PA 61, however, the statutory intoxication threshold has been reduced from 0.10 to 0.08.

2

MCL 257.625(8)(b) has since been redesignated as MCL 257.625(9)(b).

3

We offer no opinion regarding whether the district court correctly ruled that the police violated MCL 257.625a(6)(d). But because the prosecution does not challenge the district court’s ruling, we assume for purposes of this section of the opinion that the statute was violated.

4

MCL 257.625a(8) provides:

If a chemical test described in subsection (6) is administered, the test results shall be made available to the person charged or the person’s attorney upon written request to the prosecution, with a copy of the request filed with the court. The prosecution shall furnish the results at least 2 days before the day of the trial. The prosecution shall offer the test results as evidence in that trial. Failure to fully comply with the request bars the admission of the results into evidence by the prosecution. [Emphasis added.]

5

Koval and its progeny did not address this subsection (or its then-existing equivalent) in determining that dismissal of charges was the appropriate remedy for an unreasonable denial of the right to an independent chemical test.

6 Subsection 7 was amended in 2003 to provide, in pertinent part: “The provisions of subsection (6) relating to chemical testing do not limit the introduction of any other admissible evidence bearing upon any of the following questions . . ..” 2003 PA 61. Our analysis applies equally to the amended statute.