People v. Clairmont , 13 Mich. App. 577 ( 1968 )

13 Mich. App. 577 (1968) 164 N.W.2d 676

PEOPLE
v.
CLAIRMONT.

Docket No. 3,645.

Michigan Court of Appeals.

Decided October 21, 1968. Leave to appeal denied January 21, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Walter T. Dartland, Prosecuting Attorney, for the people.

Wisti, Jaaskelainen & Schrock, for defendant.

PER CURIAM:

Defendant was convicted by jury verdict of operating an automobile under the influence of intoxicating liquor, contrary to section 625 of the vehicle code, CLS 1961, § 257.625 (Stat Ann 1960 Rev § 9.2325). At the trial a police officer testified concerning the interrogation of defendant upon his apprehension. During his testimony the following transpired:

"Q. Now, after — was this the extent of the interrogation at that time in the automobile?

"A. I believe that we asked him, then, if he would take a blood test."

Immediately following the question and answer the defense counsel objected, and the court stated to the jury:

"That will be stricken from the record and, ladies and gentlemen, you are instructed to totally disregard that remark."

Defense counsel immediately moved for a mistrial but the court denied it on the ground that:

"[T]here has not been sufficient error committed that would prejudice the defendant's position, and I will strongly instruct the jury at the time the instructions are given to them at the close of the proofs."

On appeal it is claimed that the above quoted question and answer constituted prejudicial error, as being contrary to PA 1960, No 148,^[*] which read:

"The refusal on the part of any person to submit to any such test shall not be admissible in any criminal prosecution relating to driving a vehicle while under the influence of intoxicating liquor."

This case is distinguishable from People v. Reeder (1963), 370 Mich 378, relied upon by the appellant, in that in Reeder the prosecutor asked a direct question relating to a blood test, while in the case at bar, he asked a routine, non-leading question, which did not call for a response relating to a blood test. We do not regard an answer volunteered by the police officer that "we asked him, then, if he would take a blood test", as constituting a reversible error. The trial court's ruling and instructions in our view were adequate.

Affirmed.

T.G. KAVANAGH, P.J., and McGREGOR and PHILIP C. ELLIOTT, JJ., concurred.

NOTES

[*] PA 1960, No 148 (CLS 1961, § 257.625a) has since been amended by PA 1964, No 104 and PA 1967, No 253 (Stat Ann 1968 Cum Supp § 9.2325[1]).