Summary
In Alford, although the statute was somewhat different from ours, the Court of Appeals of Michigan rejected the defendant's theory that the failure to advise of the chemical test deprived him of a right which required reversal.
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Docket No. 2,327.
Decided November 24, 1967.
Appeal from Recorder's Court of Detroit; Wood (Andrew C.), J. Submitted Division 2 June 8, 1967, at Lansing. (Docket No. 2,327.) Decided November 24, 1967.
Vernor Edward Alford was convicted of driving an automobile while under the influence of intoxicating liquor. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.
Tauber Garon, for defendant.
The defendant appeals from his 1966 conviction for driving an automobile while under the influence of alcoholic beverages in violation of CLS 1961, § 257.625 (Stat Ann 1960 Rev § 9.2325).
The defendant was arrested and charged following his involvement in an automobile accident. The arrest was predicated on his staggered walk, slurred speech, and the odor of alcohol on his breath. At the trial defendant testified that he was at no time apprised of any right to take or to refuse to take a statutory chemical test. He further stated that if he had been so advised he would have taken such a test. The officer who questioned the defendant on the date of the alleged offense was asked on cross-examination about any conversation he might have had with the defendant. The testimony made no reference to the statute or to the provisions therein which pertain to chemical tests.
PA 1964, No 104, amending PA 1949, No 300, § 625a, as added by PA 1960, No 148 (CLS 1961, § 257.625a [Stat Ann 1965 Cum Supp § 9.2325(1)]).
Defense counsel moved for a dismissal on the ground that there was no testimony that the defendant was apprised of his right to have a blood test. The court denied this motion and subsequently found the defendant guilty.
Defendant asks this Court to determine that failure to apprise him of the right to a statutory chemical test was a deprivation of his rights which mandates reversal.
The trial judge based his denial of the motion on the fact that, as no test was given, there was no reason for any testimony pertaining to a test. He did, however, recognize in his remarks the defendant's statutory right to demand a blood test.
The people's argument follows the reasoning of the court below. They assert that the right to a blood test is relevant only if demanded by the defendant. The defendant made no such demand. The people maintain that since the defendant was not given a test, there was no need to advise him that he could refuse a test or to inform him that he could exercise his right to demand that a person of his own choosing administer one of the tests provided.
In People v. Church (1966), 5 Mich. App. 303, which was cited in both appellate briefs, this Court had occasion to review the statutory provisions relating to statutory chemical tests. The specific holding in Church was that an accused, who has been advised of his right to refuse to take a blood test after an arrest on a charge of operating a motor vehicle while under the influence of intoxicating liquor, was not entitled to be apprised by the police of his right to have a blood test in a city hospital after his private physician had refused to conduct the test.
Since the applicable statute is set forth in its entirety in People v. Church (1966), 5 Mich. App. 303, 305-307, with the amended portions italicized, we deem it unduly repetitious to repeat the statute here.
The essential difference in the issue presented by the instant case and that of Church is that facts here do not show that the accused was ever advised of a test, whereas in Church, it was undisputed that the accused was advised that he could refuse to take any tests. It was also undisputed that he was advised that he could have a doctor of his own choice administer the test.
It was previously held, as noted in Church, that the giving of advice was mandatory, as prior to the 1964 amendment of this statute, language in two subsections thereof required that the advice here sought be given. This language was deleted by the amendment.
See People v. Lyall (1964), 372 Mich. 607; People v. Koval (1963), 371 Mich. 453.
The statute prior to amendment is set forth in People v. Koval, supra, at 454-456.
As the statute stood for the purposes of this case and before the 1967 revision, the accused had a right to refuse to take any test provided for in this act; a right to have the results of any such test administered under police direction admitted in evidence so that he can take advantage of the statutory presumptions which deal with the amount of alcohol in the blood; a right to demand one of the chemical tests provided by statute if facilities are reasonably available for its administration; and, if he took a chemical test administered under police direction, the right to have one of the tests administered by a person of his own choosing within a reasonable time after his detention.
Subsection (4) of CLS 1961, § 257.625a, supra, as amended.
Subsection (1) of CLS 1961, § 257.625a, supra, as amended.
Subsection (3) of CLS 1961, § 257.625a, supra, as amended.
Ibid.
The legislature clarified its intent to dispense with the requirement of advice when it deleted the language requiring that such advice be given. It compensated for this deletion by adding a specific requirement that the person charged be advised of his right to refuse to take any such test. It then retained the wording requiring that the test results be available on demand, and enlarged the defendant's right to demand any of the tests where facilities were reasonably available for its administration.
One accused under the statute is protected thereby. None of this defendant's rights were violated as none of the statutory rights were denied him. The people proved their case with other competent evidence as was within the ambit of the statute.
Subsection (5) of CLS 1961, § 257.625a, supra, as amended.
No reversal is required under these facts.
Affirmed.
J.H. GILLIS and QUINN, JJ., concurred.