McNitt v. Citco Drilling Co. , 397 Mich. 384 ( 1976 )

Levin, J.

In People v Keen, 396 Mich 573, 575; 242 NW2d 405 (1976), we held that "where a blood alcohol test is administered pursuant to the statute the test result is not admissible in a criminal prosecution other than for driving while under the influence of intoxicating liquor (DUIL) or for driving while ability to operate a vehicle was impaired due to the consumption of intoxicating liquor (DI)”.

The common issue in these appeals concerns the admissibility of the result of a blood alcohol test in civil litigation, specifically actions for wrongful death commenced by the administrator of the estate of the allegedly drunken driver in McNitt and against the allegedly drunken driver in Gilbert.

We hold the results of tests administered pursuant to the statute cannot be used in civil litigation.¹

I

As in Keen, we see no need to decide this case on constitutional grounds because "[e]ven if we were to conclude, on reconsideration of Lebel [v Swincicki, 354 Mich 427; 93 NW2d 281 (1958)], that the drawing of blood from an apparently drunken driver does not violate his rights under the Michigan Constitution, the statute limits the authority of police officers to request the.taking of blood and limits the use that may be made of a test result obtained pursuant to exercise of that authority”. People v Keen, supra at 576-577.²

The Michigan Vehicle Code makes admissible in DUIL prosecutions the result of a blood alcohol test.³

It is further provided that a person who operates a motor vehicle "is deemed to have given consent” to a blood alcohol test if he is "arrested while driving under the influence of intoxicating liquor or while his ability to operate a vehicle has been impaired due to the consumption of intoxicating liquor”.⁴

It is also provided, however, that "[a] person under arrest shall be advised of his right to refuse to submit to chemical tests; and if he refuses the request of a law enforcement officer to submit to chemical tests, no test shall be given”.⁵ If the driver refuses to take a test, the Secretary of State may suspend, revoke or deny issuance of a driving license.⁶

In Keen, this Court said:

"Even though the taking of an automobile driver’s blood without consent does not violate the Federal Constitution and even if on reconsideration of Lebel we were to conclude that it did not violate the Michigan Constitution, it would still be within the legislative prerogative to limit the right of police officers and others to take blood from allegedly drunken drivers. Whether consent is or is not constitutionally required, the Legislature may decide that the interest in enforcement of the drunk driving laws does not justify subjecting unconsenting drivers to blood alcohol tests — imposition of the sanction of revocation of driver’s license for unreasonable refusal to consent to a test appropriately protects the public interest.”⁷

II

In McNitt, the driver, who was unconscious, did not consent.

In Gilbert, the trial judge found, after an evidentiary hearing, that the driver did not consent.

While the relevant provisions of the Michigan Vehicle Code are sometimes called the "implied consent law” and it is provided that a person who operates a motor vehicle "is deemed to have given consent” to a blood alcohol test, it is also provided that "no test shall be given” to a person who refuses to consent. As the trial judge in McNitt declared, under the statute the issue "is not to be viewed in the ordinary search and seizure context, but solely in terms of consent”.

The contention of the defendant in McNitt that statutory authority is not needed to authorize the administration of blood alcohol tests or to make test results admissible in evidence elides the fact that but for the statute the tests probably would not have been administered by the hospital personnel.

In both Gilbert⁸ and McNitt the blood sample was taken at the request of a police officer to determine alcohol content and not for diagnostic purposes.

There is no suggestion that the hospitals would have allowed their personnel to draw blood for determination of alcohol content without a "request of a police officer” or that they would have allowed this to be done if they did not have the resulting statutory protection from civil and criminal liability.⁹

In administering the tests, the hospital personnel appear to have acted on the requests of police officers pursuant to the statute.

It has not been established that, as claimed by the defendant in McNitt, the officer, in requesting that a test be administered, was exercising an asserted common-law right to cause a blood alcohol test to be administered.

We do not preclude a showing at trial that the officer in requesting that the hospital personnel administer a test made known to them that he was not making the request pursuant to the statute so that they would be aware that if they administered the test they could not claim the statutory protection from civil and criminal liability. Upon such a showing the question whether the statute occupies the field and supersedes the asserted common-law right would be properly presented and require resolution; absent such a showing, we intimate no opinion on the question.

Ill

In People v Keen, supra, holding that a blood alcohol test result was not admissible in a prosecution for manslaughter, this Court said:

"In the context of an arrest for 'driving a vehicle while under the influence of intoxicating liquor’, advice that results of a consensual test will be used to determine the innocence or guilt of the driver means innocence or guilt of the offense for which the driver was arrested.” 396 Mich 583.

If the drivers in McNitt and Gilbert had been told, as the driver in Keen was told, that blood alcohol test results might be admitted in a DUIL prosecution and had, as contended by Gilbert, consented to the administration of such tests, the results could not, for essentially the reason stated in People v Keen, have been used against them in civil litigation. The test result would have been obtained on a representation of limited use made by a police officer acting pursuant to a statute providing for limited use. That limitation encourages drivers to consent to the test and assists in the prosecution of those who drive under the influence of intoxicating liquor or while their ability to drive is impaired due to intoxication.

It would be anomalous to construe the statute to allow a broader use of the results of tests taken under the authority of the statute but not in conformity with its terms than of test results obtained in conformity with statutory requirements.

IV

Test results obtained pursuant to the exercise of statutory authority are not admissible unless obtained in conformity with the requirements of the statute.¹⁰

The statute provides that a person under arrest "shall be advised of his right to refuse” a test and "if he refuses” the request "no test shall be given”. In Gilbert the judge found that the request of the officer was refused. McNitt’s state of unconsciousness precluded a request in conformity with the requirements of the statute. The tenor of this statute giving drivers the right to refuse to submit to a test is that "no test shall be given” unless the driver submits to a test.

The meaning of the statutory edict, "no test shall be given”, is that the driver has a choice whether to submit to a test;* ¹¹ if he does not submit, this evidence of his condition shall not be extracted from him. If, as has been here contended, there is a right to use test results in civil litigation even if the driver does not submit because the test .was nevertheless administered, then — the statute to the contrary — the driver has no choice.

In precluding the use of test results obtained under color of statutory authority but in violation of the terms of the statute, we protect the driver’s statutory choice.

We also observe that the language of the statute, "in determining the innocence or guilt of the defendant”,¹² is not the language of civil litigation.

A different question might be presented if the test had not been requested by a police officer, but had been administered by hospital personnel for diagnostic purposes.

The test results are not admissible in Gilbert¹³ or McNitt¹⁴ but this does not preclude a showing at trial that the officer eschewed his statutory authority.

We appreciate that drunk drivers are a menace and that strict enforcement of drunk driving laws is in the public interest. The Legislature has, however, limited the authority of police officers to request hospital personnel to withdraw blood or otherwise test for blood alcohol content without consent and has limited the use that may be made of blood alcohol test results obtained pursuant to exercise of that authority.

The Court of Appeals is affirmed. The cases are remanded to the trial courts for trial.

Kavanagh, C. J., and Williams and Fitzgerald, JJ., concurred with Levin, J.

1 Our Holding is in accord with the conclusions of the Court of Appeals in McNitt and Gilbert:

"We have not disregarded appellants’ argument that Michigan’s 'implied consent law’ as to chemical tests in drunken or impaired driving situations applies in the instant case. That statute gives implied consent for the purpose of that act.” McNitt v Citco Drilling Co, 60 Mich App 81, 85; 230 NW2d 318 (1975).

"[W]e conclude that the trial court properly excluded the evidence because of the invalidity of any alleged consent.” Gilbert v Leach, 62 Mich App 722; 233 NW2d 840 (1975).

2 Lebel v Swincicki, 354 Mich 427; 93 NW2d 281 (1958), held that the result of a blood alcohol test, based on a blood sample taken from an unconscious driver, was inadmissible in a civil action as the Michigan constitutional provision securing persons from unreasonable searches and seizures (Const 1908, art 2, § 10 [now Const 1963, art 1, § 11]) precludes the drawing of blood without consent. The Court, citing Breithaupt v Abram, 352 US 432; 77 S Ct 408; 1 L Ed 2d 448 (1957), said that the result of such a test would be inadmissible in a Federal prosecution. In Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966), the United States Supreme Court concluded that Federal constitutional guarantees had not been violated by the extraction of blood without consent from an apparently drunken driver and the admission in evidence in a drunk driving prosecution of the result of a chemical test of his blood.

3 MCLA 257.625a; MSA 9.2325(1).

4 MCLA 257.625c; MSA 9.2325(3).

5 MCLA 257.625d; MSA 9.2325(4).

6 MCLA 257.625Í; MSA 9.2325(6).

7 See People v Keen, 396 Mich 573, 580-581, fn 12; 242 NW2d 405 (1976).

8 Some blood was taken for diagnostic purposes but the judge found that another sample was taken at the request of a police officer and, although hospital personnel claimed consent had been given, that the sample taken at the request of the officer was without the defendant’s consent. The hospital personnel said they would not have performed a blood alcohol test absent a request of an officer. The Court of Appeals stated that the blood sample was taken by the hospital personnel at the request of the police. Gilbert v Leach, 62 Mich App 722, 729; 233 NW2d 840 (1975).

9 "Samples and specimens of urine, breath and saliva shall be taken and collected in a reasonable manner; but only a duly licensed physician, or a licensed nurse or medical technician under the direction of a licensed physician and duly qualified to withdraw blood, acting in a medical environment, at the request of a police officer, can withdraw blood for the purpose of determining the alcoholic content therein under the provisions of this act. No liability for a crime or civil damages predicated on the act of withdrawing blood and related procedures attaches to a qualified person who withdraws blood or assists in the withdrawal in accordance with this act unless the withdrawal is performed in a negligent manner.” MCLA 257.625a(2); MSA 9.2325(1)(2). (Emphasis added.)

The exculpation from liability is we think triggered by "the request of a police officer”. Absent disclaimer by the officer that he is acting under the statute, hospital personnel are protected in relying on such a request as authorization to proceed to administer a test under the statute without independent investigation and determination whether statutory requirements have been observed.

10 Cf. Gallagher v Secretary of State (On Rehearing), 59 Mich App 269; 229 NW2d 410 (1975).

11 Collins v Secretary of State, 384 Mich 656, 667; 187 NW2d 423 (1971); People v Hayes, 64 Mich App 203, 208; 235 NW2d 182 (1975).

12 MCLA 257.625a(3); MSA 9.2325(1X3).

13 Our conclusion makes it unnecessary to consider whether the trial judge properly decided the issue of consent.

14 Since the statute provides for limited use of a test result, the death of the driver after administration of the test does not enlarge the use that may be made of such result.