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
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.
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.
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, M.C.L. § 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 M.C.L. § 257.625a(6)(b) [MSA 9.2325(1)(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 plaintiff's application for leave to appeal.
The Court of Appeals affirmed the suppression of the blood alcohol evidence. 230 Mich.App. 166, 583 N.W.2d 247 (1998). Citing McNitt v. Citco Drilling Co., 397 Mich. 384,
The implied consent statute, M.C.L. § 257.625c; MSA 9.2325(3), provides that
(a) If the person is arrested for a violation of section 625(1), (3), (4), (5), or (6), section 625a(5), or section 625m....
* * *
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 M.C.L. § 257.625a(6)(b); MSA 9.2325(1)(6), which provides:
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.
Following these principles of statutory construction, we conclude that the plain language of M.C.L. § 257.625c; MSA 9.2325(3), and M.C.L. § 257.625a(6)(b); MSA 9.2325(1)(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,
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.
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
1. The McNitt Holding
The McNitt Court framed the issue as follows:
At the time McNitt was decided, M.C.L. § 257.625a(1); 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...."
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, 245 N.W.2d 18. 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:
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.
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, 253 N.W.2d 359. The Court further stated:
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
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 N.W.2d 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, 229 N.W.2d 410. 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, 229 N.W.2d 410. 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.
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 U.S. 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 N.W.2d 162 (1984); Camara v. Municipal Court of the City & Co. of San Francisco, 387 U.S. 523, 532-533, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).
U.S. 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 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); People v. Champion, 452 Mich. 92, 549 N.W.2d 849 (1996).
One established exception to the general warrant and probable cause requirements is a search conducted pursuant to consent. Schneckloth, supra at 219, 93 S.Ct. 2041. 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, 93 S.Ct. 2041; People v. Reed, 393 Mich. 342, 224 N.W.2d 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, 93 S.Ct. 2041; People v. Lumpkin, 394 Mich. 456, 458, 231 N.W.2d 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, 93 S.Ct. 2041.
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.
Because the clear language of M.C.L. § 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 U.S. 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., concur with YOUNG, J.
MARILYN J. KELLY, J. (dissenting).
I disagree with the majority that the implied consent statute requires an arrest to trigger entitlement to its protections. See M.C.L. § 257.625a(6); MSA 9.2325(1)(6), M.C.L. § 257.625c; MSA 9.2325(3). I note that the majority opinion contradicts over two decades of established precedent and supporting legislative acquiescence.
The Implied Consent Statute
(a) If the person is arrested for a violation of section 625(1), (3), (4), (5), or (6), section 625a(5)....
* * *
When chemical tests are administered under § 625a(6), the statute requires that
(c) A sample or specimen of urine or breath shall be taken and collected in a reasonable manner. Only a licensed physician, or an individual operating under the delegation of a licensed physician..., qualified to withdraw blood and acting in a medical environment, may withdraw blood at a peace officer's request to determine the amount of alcohol or presence of a controlled substance or both in the person's blood, as provided in this subsection. Liability 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
This case involves statutory interpretation, which is a question of law subject to de novo review. Oakland Co. Bd. of Rd. Comm'rs v. Michigan Property & Casualty Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998). The primary purpose of statutory interpretation is to ascertain and effectuate legislative intent. Frankenmuth Mut. Ins. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998).
When promulgating new laws, the Legislature is presumed to be familiar with rules of statutory construction and existing laws on the same subject. Malcolm v. East Detroit, 437 Mich. 132, 139, 468 N.W.2d 479 (1991); People v. Tracy, 186 Mich.App. 171, 177, 463 N.W.2d 457 (1990). Consequently, silence by the Legislature following judicial construction of a statute suggests consent to that construction. Craig v. Larson, 432 Mich. 346, 353, 439 N.W.2d 899 (1989).
As noted by the majority, we previously recognized that "[t]best results obtained pursuant to the exercise of statutory authority are not admissible unless obtained in conformity with the requirements of the [implied consent] statute." McNitt v. Citco Drilling Co., 397 Mich. 384, 393, 245 N.W.2d 18 (1976). In McNitt, we concluded that police officers obtained test results "under color of statutory authority" when (1) the tests were administered by medical personnel pursuant to the request of a police officer, and (2) the medical personnel were not informed the request was being made other than under the statute. Id., 391-392, 394, 245 N.W.2d 18.
We refused to permit the use of test results obtained under color of statutory authority but in violation of the statute. Our rationale was that it would deprive drivers of their statutory choice of submitting to a blood alcohol test or losing their driver's license. Our ruling in McNitt preserved this statutory choice. Id., at 394, 245 N.W.2d 18.
In People v. Weaver,
The Court of Appeals reasoned that the defendant might have refused to consent to the test had he realized that (1) the officer's request was not pursuant to the statute, and that (2) his refusal would not have resulted in revocation of his license. Id. Because the statute may have exerted a coercive effect over the defendant that aided in the acquisition of his blood sample, the Court of Appeals concluded that a "test made pursuant to authority other than the statute must expressly disclaim reliance on the statute and the statutory penalties for refusal." Id. Given that the officer failed to expressly disclaim such reliance, the Court concluded that the trial judge had erroneously admitted evidence of the defendant's blood alcohol test results. Id.
At the time McNitt and Weaver were decided, the existing version of the implied consent statute provided:
(1) A person who operates a vehicle upon the public highways of this state is deemed to have given consent to chemical
Like the present version of the implied consent statute, the former version provided for the arrest of the driver. Id. Nevertheless, Michigan courts consistently held that blood alcohol test results obtained under color of statutory authority were inadmissible unless obtained in conformity with this statute. McNitt, supra at 393-394, 245 N.W.2d 18
However, with this decision, the majority repudiates this case law, finding that it contradicts a legislative intent that only persons who have been arrested fall within the purview of the statute.
Although citing "well established" rules of statutory construction, the majority ignores the fundamental rule that silence by the Legislature following judicial construction of a statute evidences consent to that construction. Craig, supra at 353, 439 N.W.2d 899.
Section 625a(6)(c) also limits individuals permitted to draw blood for purposes of determining blood alcohol content to medical personnel, authorized pursuant to a police officer's request. Id. In McNitt,
In this case, the nurse who withdrew defendant's blood for purposes of determining his blood alcohol content was not informed (1) that the officer requested defendant's consent without statutory authority, or that (2) she could be acting without protection from civil or criminal liability. MCL 257.625a(6)(c); MSA 9.2325(1)(6)(c). The majority disregards
The majority additionally fails to address whether (1) the remaining provisions regarding chemical testing under § 625a are applicable under these circumstances, or (2) medical personnel acting under these circumstances are subject to liability. The opinion appears to create at least as many questions as it answers.
Because the majority permits officers to obtain consent for blood alcohol testing under color of statutory authority and in violation of the implied consent statute, I respectfully dissent. I would affirm the judgment of the Court of Appeals and conclude that defendant's blood alcohol test results were inadmissible.
MICHAEL F. CAVANAGH, J., concurs with MARILYN J. KELLY, J.