People v. Gilbert , 8 Mich. App. 393 ( 1967 )

8 Mich. App. 393 (1967) 154 N.W.2d 800

PEOPLE
v.
GILBERT.

Docket No. 2,280.

Michigan Court of Appeals.

Decided November 28, 1967. Rehearing denied December 29, 1967.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and C. Homer Miel, Prosecuting Attorney, for the people.

Poppen, Street & Sorensen, for defendant.

BURNS, J.

The defendant has been charged with manslaughter for negligently driving his automobile while under the influence of intoxicating liquor in such a way as to cause the death of a fellow passenger.^[1]

At the preliminary examination the investigating police officer testified that when he arrived at the scene shortly after the accident, he noticed the defendant appeared "very much disturbed" and he detected the "aroma of intoxicating beverages of some description" on defendant's breath. The officer elicited no significant statement from defendant at the scene of the accident. However, 1/2 or 3/4 of an hour later at the hospital, the officer asked the defendant if he was driving the automobile at the time of the accident. The defendant replied, "I don't know. I must have been because I never allow anybody to drive my car." The officer then asked him why he didn't know whether or not he had been driving the car, and the defendant replied that he had been drinking too much. He said, "I think I am drunk." The officer, based upon his observation at the hospital of the defendant's talk, breath, the look in his eyes and the way he walked, formed an opinion that the defendant was under the influence of intoxicating beverages.

The officer also testified that the defendant was not offered a blood test to determine alcoholic content and was not advised that he had a right either to have the test or to refuse such a blood test.

Prior to trial the defendant moved to suppress the testimony of the police officer on the ground that the defendant had not been advised of his constitutional rights. The motion also asked that the case be dismissed for the same reason and on the additional ground that the police officer did not advise the defendant relative to his rights regarding a blood test. The motion was denied by the trial court and this Court granted leave to appeal.

Defendant has raised the following issues:

"1. Was the defendant adequately informed of his constitutional privileges against self-incrimination^[2] and right to counsel?^[3]

"2. Are incriminating admissions made in the course of making an accident report required by statute admissible in evidence?

"3. Does the failure of the officer to advise the defendant relative to his rights regarding a blood test preclude a prosecution based upon driving a vehicle while under the influence of intoxicating liquor?"

The defendant, to sustain his first ground on appeal, emphasizes and relies on Miranda v. Arizona (1966), 384 U.S. 436 (86 S. Ct. 1602, 16 L ed 2d 694, 10 A.L.R. 3d 974). In the Miranda decision the essential concern of the United States Supreme Court was the voluntariness of the confession or admission. The history of the transition from physical to more subtle psychological means of compulsion was traced in detail by the Court. In each of the 4 cases consolidated for appeal in Miranda, the confession or admission was made after formal arrest and in a general atmosphere of psychological compulsion. Repeatedly the Court stressed the factor of "incommunicado interrogation" resulting in a "police-dominated atmosphere." The lengthy duration of the interrogation period was considered significant in several of the cases. The requisite "custodial interrogation" must be interpreted in the light of the Court's own emphasis upon the compulsive atmosphere in which the suspect is questioned. In the instant case the defendant was questioned as he freely walked about the hospital corridors and emergency room. He was in no way isolated for questioning and the period of interrogation was of short duration. This Court will not extend the requirements of Miranda, supra, to the essentially different fact situation in the instant case.

The second issue raised by the defendant involves the admissibility of information received for the purpose of making a report required by CLS 1961, § 257.622 (Stat Ann 1960 Rev § 9.2322).^[4]

This statute at the time of the accident provided:

"The driver of every motor vehicle involved in an accident resulting in a vehicle or vehicles becoming so disabled as to be incapable of being propelled in the usual manner, or resulting in personal injury or death of any person shall forthwith report such accident to the nearest or most convenient police station or police officer. The officer receiving such report shall forthwith forward the same to the commissioner of State police on forms to be prescribed by him."

CLS 1961, § 257.624 (Stat Ann 1960 Rev § 9.2324) states:

"The reports required by this chapter shall not be available for use in any court action, but it shall be for the purpose of furnishing statistical information as to the number and cause of accidents."

CLS 1961, § 257.901 (Stat Ann 1960 Rev § 9.2601) provides that the failure to file the report is a misdemeanor. While there are decisions of the Supreme Court of Michigan interpreting this point in civil cases, the Supreme Court has not decided the scope of testimony allowable in a criminal case.

In response to the question of who was driving the automobile, asked by the police officer in order to fill out the report required by statute, the defendant made incriminatory admissions that he was driving and that he was drunk at the time. Defendant was responding to the questions asked and was thus required by statute to speak. That the statements made were incriminatory is beyond dispute. Were it not for the statutory bar, the statute itself would clearly deny the defendant's constitutional privilege against self-incrimination. US Const, Ams 5, 14; Const 1963, art 1, § 17. Under the statute the testimony of the police officer, as to the defendant's responses to the questions found on the report form which defendant was bound to complete, is inadmissible in evidence.

Concerning the third issue raised by the defendant, the relevant portion of CLS 1961, § 257.625a, as amended by PA 1964, No 104 (Stat Ann 1965 Cum Supp § 9.2325[1]) reads:

"(4) The person charged shall be advised of his right to refuse to take any test provided for in this act."

The 1964 amendment omitted a requirement that the person charged be advised of his right to have a blood test, and thus precludes any argument that defendant in this case should have been advised of his right to a blood test. See People v. Church (1966), 5 Mich. App. 303. This statutory right to refuse a blood test obviously can be useful only after such a test has been offered. The statutory right to refuse a blood test is designed to preserve defendant's privilege against self-incrimination, and until a blood test is at least offered to the defendant, his constitutional rights are not yet in peril, and the statute has no application.

The order denying defendant's motion to suppress the testimony of the police officer is reversed and the case remanded for trial.

FITZGERALD, P.J., and HOLBROOK, J., concurred.

NOTES

[1] CL 1948, § 750.321 (Stat Ann 1954 Rev § 28.553).

[2] US Const, Am 5; Const 1963, art 1, § 17.

[3] US Const, Am 6; Const 1963, art 1, § 20.

[4] See currently PA 1966, No 171 and PA 1967, No 3, amending this section (Stat Ann 1966 and 1967 Current Material § 9.2322, pp. 252, 748).