People v. Craun

406 N.W.2d 884, 159 Mich. App. 564

• Court: Michigan Court of Appeals
• Decided: April 21, 1987
• Docket: Docket 87158
• Status: Published

Opinions

R. B. Burns, P.J.

Defendant was charged, inter alia, with operating a vehicle while under the influence of intoxicating liquor, MCL 257.625(1); MSA 9.2325(1), operating a vehicle while possessing a blood alcohol content of 0.10 percent or more, MCL 257.625(2); MSA 9.2325(2), and operating a vehicle while impaired, second or subsequent offense, MCL 257.625b(l) and (3); MSA 9.2325(2X1) and (3). The district court dismissed these counts and the circuit court affirmed the dismissal. The prosecutor now appeals and we affirm.

After his arrest, defendant was taken to the Lake Orion Police Department police station by Officer Jeff Matte. At the station, defendant was read his rights concerning submitting to an alcohol test, including the right to have a blood test administered by a person of his own choosing. See MCL 257.625a; MSA 9.2325(1). Defendant was given a Breathalyzer test and, thereafter, requested an independent blood test. Officer Matte responded to the request by handing defendant a telephone book and allowing him to make a number of telephone calls.

Defendant first called his psychiatrist, who declined to administer the test on the basis that he was no longer a practicing physician. Defendant called approximately six other doctors, who all declined to administer the test on the basis that defendant was not one of their patients. Defendant told Matte that he could not find anyone to administer the test and Matte responded that there was nothing that Matte could do about it. Defendant quit making calls and said "forget it.” Matte told defendant that he could make an additional call if he could think of a physicián to contact and that an officer would provide transportation to and from the physician’s office in order to obtain the test.

As indicated in the dissent, Pontiac Osteopathic Hospital is located approximately a quarter mile from the police station. It was the policy of the police department to provide suspects with transportation, within a reasonable distance, to obtain a blood test. In the past, suspects have been transported to both the Pontiac Osteopathic Hospital and Pontiac General Hospital to obtain a blood test. At no time did Matte inform defendant that he could go to Pontiac Osteopathic Hospital for a blood test or that Pontiac General administers such tests. Rather, after defendant gave up on trying to find a physician, Matte locked defendant up for the evening to be bonded out in the morning.

In reaching its decision, the trial court stated:

The court further finds that Lake Orion Police Department has no procedure regarding granting any defendants their rights to a blood test, except for those that are enumerated by Officer Matte, that — and in this case, that the defendant was given a phone and given a telephone book.

The court finds that that’s unreasonable to the extent that, if somebody is arrested, they still have the right, and if they don’t know a doctor and they don’t know a place, that does not preclude — the statute does not say that precludes them from having that right. The court reads into the right as Mr. Halushka has stated, that the defendant has his choice, but the fact is if somebody doesn’t know a doctor, especially at four in the morning, or he doesn’t know a doctor to call or he doesn’t know a hospital, if he doesn’t know the area, then he doesn’t lose his right just because he doesn’t know these things. A person from out of state could come in and have the same rights.

Based upon that, the court finds that the defendant was deprived of his right to obtain evidence to defend himself and, where there is a depriving of a defendant of his right to defend himself, there’s no way that person can get a fair trial. Even if any and all evidence was used against him, he does not have the opportunity to properly defend himself and that precludes the opportunity of having a fair trial. Based upon that, the court will dismiss the drunk driving case against Mr. Craun.

MCL 257.625a(5); MSA 9.2325(1X5) provides in part:

A person who takes a chemical test administered at the request of a peace officer, 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 section within a reasonable time after his or her detention, and the results of the test shall be admissible and shall be considered with other competent evidence in determining the innocence or guilt of the defendant. [Emphasis added.]

The resolution of this case centers on the proper interpretation of the words "reasonable opportunity.” The trial court made a factual finding that defendant was not afforded a reasonable opportunity to obtain an independent blood test. We review that finding of fact to determine if it is clearly erroneous. MCR 2.613(C). We conclude that it was not.

The Legislature granted drunk driving suspects the right to obtain chemical tests independent of a police administered test. Moreover, it is not sufficient that a suspect merely be given an opportunity to obtain a test. Rather, that opportunity must be a reasonable one. We agree with the courts below that merely handing a suspect a telephone book and a telephone is insufficient. That would render the right to an independent blood test ineffective where the suspect is unaware of a physician or medical facility which would be willing to perform such a test in the middle of the night.

The dissent places great emphasis on the language in the statute that the independent test is to be performed by a person of the suspect’s own choosing. While we agree that the language says that the suspect, and not the police, decides who will administer the test, we do not read it to be as broad a limitation on the role of the police as the dissent suggests. Rather, it merely assures that the suspect makes the final selection, not the police.

We also dismiss the dissent’s concern that, had the police suggested a place where defendant could, have obtained a blood test, defendant could have argued that the test was not independent. Such problems are easily avoided by the police not. making any suggestions until after a suspect requests information about a testing facility or where, as here, a suspect indicates that he is unable to find anyone willing to administer the test.

We do not suggest that the police must become actively involved in the suspect’s search for a testing facility. Rather, we conclude that, where the police are aware of an available testing site within a reasonable distance from the station, they must share that information with a suspect in order to satisfy the reasonable opportunity standard granted in the statute.

The trial court’s conclusion that defendant was not given a reasonable opportunity to obtain an independent test was not clearly erroneous. Accordingly, it properly dismissed the alcohol-related driving charges against defendant. See People v Underwood, 153 Mich App 598; 396 NW2d 443 (1986).

Affirmed.

A. T. Davis, J., concurred.