People v. Borchard-Ruhland

597 N.W.2d 1, 460 Mich. 278

• Court: Michigan Supreme Court
• Decided: July 1, 1999
• Docket: 112436, Calendar No. 19
• Status: Published

Opinions

Young, J.

We granted leave in this case to determine whether defendant’s blood alcohol test results were properly suppressed where the police did not attempt to comply with the requirements of the implied consent statute, MCL 257.625c; MSA 9.2325(3). Because the clear language of the implied consent statute requires an arrest as a triggering event, we hold that its provisions do not apply to defendant. Rather, the validity of defendant’s consent to chemical testing is evaluated under the standards of US Const, Am IV, and Const 1963, art 1, § 11. The decision of the Court of Appeals is reversed, and the case remanded to the district court for further proceedings.

I. FACTUAL BACKGROUND AND PROCEEDINGS

On October 10, 1995, defendant was involved in a two-car collision. Michigan State Police Trooper William Tyrrell was sent to the scene to investigate. Tyrrell spoke to defendant for approximately five to ten minutes. The trooper testified that defendant had facial injuries and “seemed really lightheaded, pale” and “not really completely coherent.” In response to the trooper’s inquiries, defendant indicated that she had been drinking. Because Trooper Tyrrell was concerned about possible head injuries, he did not request that defendant submit to a Breathalyzer test at the scene. While Tyrrell continued his investigation of the accident scene, defendant and the two passengers in the other vehicle were transported to the hospital.¹

After Tyrrell completed his investigation, he went to the hospital. The hospital staff allowed Tyrrell to speak to defendant. Tyrrell testified that defendant was lying down when he approached her and described her demeanor as “very polite and courteous.” In response to his request for a blood sample, defendant replied “Sure. Fine. No problem.” Tyrrell testified that he did not inform defendant of her chemical test rights under the implied consent statute because she was not under arrest at the time the blood sample was taken.²

Pursuant to Trooper Tyrrell’s request, an emergency room nurse withdrew defendant’s blood and placed it in a Michigan State Police evidence collection kit provided by Tyrrell. The nurse testified that defendant smelled of alcohol and admitted that she had been drinking. The nurse also testified that defendant was cooperative and consented to the blood test. After being treated for her injuries, defendant was discharged from the emergency room and went home.

The blood sample was mailed to the Michigan State Police Laboratory. The blood sample, drawn approximately two and one-half hours after the accident, revealed a blood alcohol level of 0.14 percent. Defendant was arrested on October 19, 1995, and charged with two counts of OUIL causing serious impairment of a bodily function, MCL 257.625(5); MSA 9.2325(5).

At the preliminary examination, defendant moved to suppress the blood alcohol test results. Defendant claimed suppression was required because she had not been “advised of her chemical rights as required by MCL 257.625a(6)(b) [MSA 9.2325(l)(6)(b)] Defendant also argued that the results should be suppressed because she was not under arrest at the time she consented, and a “prior valid arrest is mandatory” before a motorist may “legally consent to blood alcohol testing . . . .” Defendant did not argue that her consent was involuntary under the constitutional standard. The district court granted the motion to suppress under the statute. The circuit court denied the plaintiffs application for leave to appeal.

The Court of Appeals affirmed the suppression of the blood alcohol evidence. 230 Mich App 166; 583 NW2d 247 (1998). Citing McNitt v Citco Drilling Co, 397 Mich 384; 245 NW2d 18 (1976), and People v Weaver, 74 Mich App 53; 253 NW2d 359 (1977), the Court held that blood alcohol testing is presumptively performed pursuant to the implied consent statute in the absence of an express disclaimer by the police made to both the defendant and the medical personnel administering the test that the request for testing was not pursuant to the statute. Because no express disclaimer was given in this case, and because the blood was not obtained in conformity with the statute, the Court held that suppression was required. We granted leave to appeal. 459 Mich 928 (1998).

H. ANALYSIS

The implied consent statute, MCL 257.625c; MSA 9.2325(3), provides that

[a] person who operates a vehicle upon a public highway . . . within this state is considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance or both in his or her blood or urine or the amount of alcohol in his or her breath in all of the following circumstances:

(a) If the person is arrested for a violation of section 625(1), (3), (4), (5), or (6), section 625a(5), or section 625m

(b) If the person is arrested for felonious driving, negligent homicide, manslaughter, or murder resulting from the operation of a motor vehicle, and the peace officer had reasonable grounds to believe the person was operating the vehicle while impaired by or under the influence of intoxicating liquor or a controlled substance or a combination of intoxicating liquor and a controlled substance, or while having an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or if the person is less than 21 years of age while having any bodily alcohol content.

* * *

(3) The tests shall be administered as provided in section 625a(6).

When a chemical test is “administered as provided in section 625a(6),” the person subject to chemical testing is advised of certain rights and benefits as found in MCL 257.625a(6); MSA 9.2325(1)(6), which provides:

(b) A person arrested for a crime described in section 625c(l) shall be advised of all of the following:

(i) If he or she takes a chemical test of his or her blood, urine, or breath administered at the request of a peace officer, he or she has the right to demand that a person of his or her own choosing administer 1 of the chemical tests.

(ii) The results of the test are admissible in a judicial proceeding as provided under this act and will be considered with other competent evidence in determining the defendant’s innocence or guilt.

(iii) He or she is responsible for obtaining a chemical analysis of a test, sample obtained pursuant to his or her own request.

(iv) If he or she refuses the request of a peace officer to take a test described in subparagraph (i), a test shall not be given without a court order, but the peace officer may seek to obtain such a court order.

(v) Refusing a peace officer’s request to take a test described in subparagraph (i) will result in the suspension of his or her operator’s or chauffeur’s license and vehicle • group designation or operating privilege and in the addition of 6 points to his or her driver record.

The rules of statutory construction are well established. The fundamental task of statutory construction is to discover and give effect to the intent of the Legislature. The task of discerning our Legislature’s intent begins by examining the language of the statute itself. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). Where the language of the statute is unambiguous, the plain meaning reflects the Legislature’s intent and this Court applies the statute as written. Judicial construction under such circumstances is not permitted. Id. Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to determine legislative intent. Luttrell v Dep’t of Corrections, 421 Mich 93; 365 NW2d 74 (1984). When construing a statute, the court must presume that every word has some meaning and should avoid any construction that would render any part of the statute surplusage or nugatory. Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992). If possible, effect should be given to each provision. Gebhardt v O’Rourke, 444 Mich 535, 542; 510 NW2d 900 (1994).

Following these principles of statutory construction, we conclude that the plain language of MCL 257.625c; MSA 9.2325(3), and MCL 257.625a(6)(b); MSA 9.2325(l)(6)(b), evinces a legislative intent that only those persons who have been arrested fall within the purview of the implied consent statute. The statute plainly requires arrest as an actuating event before a police officer is obligated to inform a person of his or her rights under the statute. Because the implied consent statute does not control the admissibility of blood alcohol evidence when a defendant is not under arrest,³ Trooper Tyrrell did not err in failing to advise defendant of her rights under the statute.

Notwithstanding the plain language of the statute to the contrary, and in furtherance of the claim that the implied consent statute is applicable even when a defendant is not under arrest, defendant cites McNitt, supra, for the proposition that all chemical testing is done pursuant to the statute unless the police expressly disclaim reliance on the statute.⁴

A. THE McNITT DICTA

THE “LEGAL PRESUMPTION AND DISCLOSURE RULE”

In McNitt, plaintiff, decedent’s personal representative, brought a wrongful death action against the owner of the other vehicle involved in an accident. In defense, the defendant sought to admit evidence showing that the decedent was intoxicated. Decedent was unconscious at the time his blood was drawn, and no consent was or apparently could have been given. In the companion case, Gilbert v Leach, plaintiff similarly brought a wrongful death action against the defendant involved in that automobile accident. Plaintiff sought to admit evidence that the defendant was intoxicated. After an evidentiary hearing, the trial court held that the defendant did not consent to chemical testing. In both cases, the trial court precluded admission of the blood alcohol evidence.

1. THE McNITT HOLDING

The McNitt Court framed the issue as follows:

The common issue in these appeals concerns the admissibility of the result of a blood alcohol test in civil litigation, specifically actions for wrongful death commenced by the administrator of the estate of the allegedly drunken driver in McNitt and against the allegedly drunken driver in Gilbert.

We hold the results of tests administered pursuant to the statute cannot be used in civil litigation. [Id. at 388.]

At the time McNitt was decided, MCL 257.625a(l); MSA 9.2325(1)(1), limited the admissibility of blood alcohol evidence to “any criminal prosecution for driving a vehicle while under the influence of intoxicating liquor . . . .”⁵ Thus, the statute did not permit the admission of blood alcohol evidence in civil actions.⁶

2. THE McNITT DICTA

The language of the statute prohibiting the admission of chemical test results in civil actions was and should have been dispositive of the issue as framed by the McNitt Court. However, for reasons that are unclear, the McNitt Court chose to address additional arguments in dicta. It is this dicta that has given rise to the erroneous construction of the statute on which the Court of Appeals relied.

The proponent of the evidence in McNitt asserted that “statutory authority is not needed to authorize the administration of blood alcohol tests or to make test results admissible in evidence . . . .” Id. at 390. The Court rejected this argument, holding that the proponent’s argument ignored “the fact that but for the statute the tests probably would not have been administered by the hospital personnel.” Id.

A footnote in McNitt discussed the grant of civil and criminal immunity afforded medical personnel pursuant to the implied consent statute. The statutory language at the time provided:

“[A]t the request of a police officer, [a qualified person] can withdraw blood for the purpose of determining the alcoholic content therein under the provisions of this act. No liability for a crime or civil damages predicated on the act of withdrawing blood and related procedures attaches to a qualified person who withdraws blood or assists in the withdrawal in accordance with this act unless the withdrawal is performed in a negligent manner.” [Id. at 391, n 9.][⁷]

After quoting the statutory language, the McNitt Court added:

The exculpation from liability is we think triggered by “the request of a police officer.” Absent disclaimer by the officer that he is acting under the statute, hospital personnel are protected in relying on such a request as authorization to proceed to administer a test under the statute without independent investigation and determination whether statutory requirements have been observed. [Id,.]

In sum, it appears that, in dicta, McNitt created a legal presumption that the requirements' of the implied consent statute apply to any chemical testing. This McNitt dicta can also be read to require that an officer seeking a blood alcohol test expressly disclaim reliance on the statute in order to overcome the presumption. Neither of these conditions originate from the plain text of the statute as it existed then or now. Nevertheless, the Court of Appeals relied on this dubious presumption. To the degree that this McNitt dicta created a legal presumption with corresponding disclaimer obligations, it is erroneous and of no persuasive force.

B. THE EXTENSION OF THE McNITT “PRESUMPTION”

In People v Weaver, supra, the Court of Appeals extended the erroneous McNitt presumption to the suspected intoxicated driver who did consent to chemical testing. Defendant Weaver was not formally arrested at the time a blood sample was requested, but he had received Miranda warnings.⁸ Although the defendant was not under arrest, the police attempted to comply with the implied consent statute. Before signing a written consent to the procedure, defendant was given an incomplete statement of chemical test rights under the statute. He was found guilty of negligent homicide. On appeal, defendant claimed that the test was administered under the implied consent statute and was not admissible in a negligent homicide prosecution. Relying on the analysis in McNitt, the Court of Appeals panel stated:

As the Supreme Court in McNitt held that a blood alcohol test is obtained pursuant to the statutory authority absent express disclaimer to the hospital personnel asked to administer that test, so do we hold that consent to a blood alcohol test obtained from a conscious driver will be considered to have been obtained under color of the statutory authority absent express disclaimer to the driver of reliance on the statute and upon statutory penalties, and advice that the statutory limits on the use to which such test results may be put is inapplicable. [Id. at 63.]

The Weaver Court stated that the presumption was justified because the “coercive effect” of the implied consent statute required a defendant to choose “between submitting to a test and facing revocation of one’s driver’s license.” Id. at 62. The Court further stated:

The possibility of the statute exerting such a coercive effect, and thereby aiding in the obtaining of the test results, is great enough to require that a request for a blood alcohol test made pursuant to authority other than the statute must expressly disclaim reliance on the statute and the statutory penalties for refusal. [Id. at 63.]

As explained above, any judicially created legal presumption found in McNitt is contrary to the plain language of the statute. The extension of this dubious legal presumption to a suspected intoxicated driver who is not under arrest and who consents to chemical testing is also erroneous.

Only those who are arrested and fall within the scope of the statute are subject to the statutory penalties for refusing a request for testing. Motorists who have not been arrested are not subject to the statute. They are not faced with the same predicament as those who are arrested, and may refuse chemical testing without being subject to license revocation and other statutory penalties. As explained below, a motorist’s knowledge of the right to refuse to consent to chemical testing when requested other than under the statute is but one factor to be considered in determining whether the consent was voluntary under the applicable constitutional standards. Accordingly, the judicially created presumption created in Weaver is expressly overruled.

C. THE GALLAGHER LIMITATION ON POLICE AUTHORITY TO REQUEST CONSENT

As an alternative basis of affirmance, defendant argues that suppression is required because she was not under arrest at the time she consented to chemical testing. Defendant argues that a “prior valid arrest is mandatory” before a motorist may “legally consent to blood alcohol testing . . . .”

In Gallagher v Secretary of State (On Rehearing), 59 Mich App 269; 229 NW2d 410 (1975), the defendant was arrested, but refused to take a Breathalyzer test. The Secretary of State initiated the statutorily prescribed procedure to revoke Gallagher’s driver’s license for refusing to take a Breathalyzer test. Gallagher’s arrest was later held invalid because the drunk driving was not committed in the presence of the arresting officer. The trial court issued a permanent injunction against the appellant, enjoining it from interfering with Gallagher’s driving privileges.

In upholding the injunction, the Court of Appeals held that a valid arrest is an “absolute condition precedent” to a police officer’s right to “request a person to submit to chemical tests of his blood, breath or urine or other bodily substances . . . .” Id. at 275. Because the arrest was invalid, the request to submit to the test was also invalid and the implied consent statute could not be utilized to revoke the defendant’s driver’s license.

Gallagher correctly observed that “the sine qua non to energize the statutory mandate of the ‘implied consent’ law is a prior valid arrest.” Id. at 276. Just as a defendant is not entitled to the benefits of the statute in the absence of arrest, neither is the defendant subject to the statutory penalties for noncompliance.

However, the Gallagher Court, while acknowledging that the statute did not apply, erroneously limited a police officer’s authority to request chemical testing when the motorist was not arrested and did not come within the scope of the statute.⁹ Nothing in the statutory language limits or abrogates the authority of the police to request voluntary chemical testing.¹⁰ A police officer’s request is merely that — a request— which can be granted or denied. Indeed, the police need not have a reasonable suspicion to request to search. United States v White, 81 F3d 775 (CA 8, 1996). Because nothing in the relevant statutory provisions purports to limit the authority of the police to request voluntary chemical testing where the suspect is not under arrest, we expressly overrule the contrary holding in Gallagher.

D. CONSTITUTIONAL STANDARDS

Having determined that defendant falls outside the purview of the implied consent statute, we hold that the admissibility of the blood alcohol evidence is governed by the conventional constitutional standards against unlawful searches and seizures found in the Fourth Amendment of the United States Constitution and Const 1963, art 1, § 11. The taking of blood to determine alcohol content constitutes a search and seizure under the Fourth Amendment. Schmerber v California, 384 US 757, 767; 86 S Ct 1826; 16 L Ed 2d 908 (1966). A defendant has a federal constitutional right to refuse to consent to a search, the assertion of which right cannot be a crime or evidence of a crime. People v Stephens, 133 Mich App 294; 349 NW2d 162 (1984); Camara v Municipal Court of the City & Co of San Francisco, 387 US 523, 532-533; 87 S Ct 1727; 18 L Ed 2d 930 (1967).

US Const, Am IV, and Const 1963, art 1, § 11 guarantee the right of the people to be free from unreasonable searches and seizures. Searches and seizures conducted without a warrant are unreasonable per se, subject to several specifically established and well-delineated exceptions. Schneckloth v Bustamonte, 412 US 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973); People v Champion, 452 Mich 92; 549 NW2d 849 (1996).

One established exception to the general warrant and probable cause requirements is a search conducted pursuant to consent. Schneckloth, supra at 219. Whether consent to search is freely and voluntarily given is a question of fact based on an assessment of the totality of the circumstances. Id. at 227; People v Reed, 393 Mich 342; 224 NW2d 867 (1975). The presence of coercion or duress normally militates against a finding of voluntariness. Id.

While an intoxicated motorist may not know of the right to refuse chemical testing without penalty, knowledge of the right to refuse consent is not a prerequisite to effective consent. Rather, knowledge of the right to refuse is but one factor to consider in determining whether consent was voluntary under the totality of the circumstances. Schneckloth, supra at 227; People v Lumpkin, 394 Mich 456, 458; 231 NW2d 637 (1975). However, we note that the people need not prove that the person giving consent knew of the right to withhold consent. Schneckloth at 248-249.

Because the defendant did not challenge the constitutional validity of her consent, the district court did not consider the issue. Rather, the district court suppressed the blood alcohol evidence under the statute. On remand, defendant is free to raise this issue for the district court’s consideration.

in. CONCLUSION

Because the clear language of MCL 257.625c; MSA 9.2325(3) requires arrest, its provisions are not applicable to defendant. Therefore, the trial court erred in suppressing the chemical test evidence on statutory grounds. Rather, the validity of defendant’s consent must be evaluated pursuant to search and seizure principles under US Const, Am IV, and Const 1963, art 1, § 11. The judgment of the Court of Appeals is reversed and the case remanded for further proceedings.

Weaver, C.J., and Brickley, Taylor, and Corrigan, JJ., concurred with Young, J.

1 The two passengers in the other vehicle suffered serious injuries. The twenty-year-old driver suffered five broken ribs, a crushed arm, a fractured femur, and two fractured knees. The ten-year-old passenger suffered a fractured leg and facial scarring.

2 The Michigan State Police have apparently created a card to assist officers to comply with the disclosure requirements of the implied consent statute. The first line of Tyrrell’s chemical test rights card stated Tm a police officer, and you’re under arrest.”

3 Our construction is consistent with the holdings of other jurisdictions applying similar statutes. See State v Smith, 84 Wash App 813; 929 P2d 1191 (1997); State v Vandergrift, 535 NW2d 428 (SD, 1995); State v Cribb, 310 SC 518; 426 SE2d 306 (1992); State v Waring, 779 SW2d 736 (Mo, 1989); State v Zielke, 137 Wis 2d 39; 403 NW2d 427 (1987); State v Pitchford, 10 Kan App 2d 293; 697 P2d 896 (1985); Nelson v State, 650 P2d 426 (Alas App, 1982); State v Baker, 184 Neb 724; 171 NW2d 798 (1969).

4 While conceding that the implied consent statute “providefs] for the arrest of the driver,” post at 299, the dissent nonetheless maintains that arrest is not required. The entire analytical premise for this conclusion is that an arrest requirement would contradict “two decades of established precedent and supporting legislative acquiescence.” Id. at 295.

The “established precedent” alluded to by the dissent consists of the McNitt dicta as well as two cases emanating from the Court of Appeals in reliance on that dicta It is a well-settled rule that obiter dicta lacks the force of an adjudication and is not binding under the principle of stare decisis. See Roberts v Auto-Owners Ins Co, 422 Mich 594, 596; 374 NW2d 905 (1985). Further, the dissent cites nothing for the remarkable proposition that this Court is compelled to follow a decision of our intermediate appellate court.

In giving effect to the phrase “if arrested,” the dissent maintains that we ignore the “fundamental rule” of legislative acquiescence. As we noted in Donajkowski v Alpena Power Co, 460 Mich 243, 261; 596 NW2d 574 (1999), legislative acquiescence “is a highly disfavored doctrine of statutory construction; sound principles of statutory construction require that Michigan courts determine the Legislature’s intent from its words, not from its silence.” We are unpersuaded by the dissent’s effort to disregard the unambiguous proviso of the statute.

5 The statute has since been amended to allow the admission of chemical test results in “any civil or criminal proceeding.” MCL 257.625a(6)(a); MSA 9.2325(lX6)(a).

6 The statute also provided that “no test shall be given” to a person who refuses to consent. Because no consent had been given, the McNitt Court held that the chemical test results were inadmissible. The statute was later amended by 1980 PA 515, stating that “a test shall not be given without a court order” if chemical testing pursuant to the implied consent statute is refused. MCL 257.625d; MSA 9.2325(4).

7 The present statutory language is substantively similar, providing that “Pliability for a crime or civil damages predicated on the act of withdrawing or analyzing blood and related procedures does not attach to a licensed physician or individual operating under the delegation of a licensed physician who withdraws or analyzes blood or assists in the withdrawal or analysis in accordance with this act unless the withdrawal or analysis is performed in a negligent manner.” MCL 257.625a(6)(c); MSA 9.2325(l)(6)(c).

8 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

9 Because the issue is not squarely before us, we need not decide whether the implied consent statute limits the authority of the police to request voluntary chemical testing where the suspect is arrested and does fall within the ambit of the statute.

10 In fact, the statute contemplates chemical testing before an arrest. The statute permits a police officer to require, not simply request, a suspect to submit to a preliminary Breathalyzer test on the basis of reasonable cause. Arrest of the suspect may be based on the preliminary Breathalyzer results. MCL 257.625a(2); MSA 9.2325(1)(2). The statute also permits arrest without a warrant where the officer has reasonable cause to believe that a driver was operating a vehicle while, among other things, having a blood alcohol content of 0.10 grams or more per 100 milliliters of blood. MCL 257.625a(l); MSA 9.2325(1)(1); MCL 257.625(1)0); MSA 9.2325(1)0)-