People v. Jagotka

McDonald, J.

Defendant is charged with operating a vehicle while under the influence of intoxicating liquor, MCL 257.625; MSA 9.2325. Defendant appeals by leave granted a circuit court order reversing a district court order suppressing blood test results revealing that defendant’s blood alcohol content was 0.18 percent. We affirm the circuit court’s reversal of the district court’s order suppressing the blood test results, but hold defendant is entitled to an adverse inference instruction because of the violation of the search warrant statute that occurred in this case.

On March 11, 1995, defendant was arrested and taken to the police station. The police advised defendant of his chemical test rights pursuant to subsection 6(b) of the implied consent statute, MCL 257.625a(6)(b); MSA 9.2325(l)(6)(b), but defendant refused to submit to a Breathalyzer test. After obtaining a search warrant, the police transported defendant to the hospital to obtain a blood sample, which was mailed to the Michigan State Police laboratory for testing. The toxicology report was completed March 15, 1995, and indicated defendant had a blood alcohol content of 0.18 percent. The blood sample was later destroyed pursuant to departmental procedure on May 16, 1995. On July 3, 1995, the prosecution provided defendant with a copy of the blood test results.

Defendant moved to suppress the blood test results in the district court, arguing the police violated the relevant search warrant statute, MCL 780.655; MSA 28.1259(5) (hereafter § 5), by failing to preserve the blood sample for trial.¹ The prosecution claimed defendant had notice the blood sample would be destroyed because of discovery that took place at the pretrial conference on May 3, 1995. Although not entirely clear from the record, it appears the prosecution claimed defendant saw the lab report, which indicated the department policy to destroy samples within thirty days. However, both parties appear to agree that defendant was not provided with his own copy of the test results until July 3, 1995. The prosecution argued that despite notice the blood sample would be destroyed, defendant did not take any action. Defendant countered that the statute did not require him to take any action. Defendant also claimed he had requested the sample be saved when he requested in a letter dated April 11, 1995, an opportunity to inspect any tangible evidence the prosecution intended to introduce at trial. The prosecution also argued evidence had not been destroyed because it was the test results that would be used as evidence at trial, not the blood sample. Defendant responded that the search warrant statute does not specify that the evidence to be saved for trial must be evidence the prosecution, rather than the defendant, intends to use at trial. Finally, the prosecution argued defendant should not be in a better position because his refusal to consent required the police to get a search warrant to obtain a blood sample. Defendant argued he was in a different position because of the differences in the statutes and that there were consequences for refusing to consent under the implied consent statute. The district court granted defendant’s motion to suppress, remarking that the case should not be treated differently than if it were a case involving a large quantity of heroin that was destroyed. The district court also reasoned that the blood sample was direct evidence relevant to the issue of defendant’s blood alcohol content.

The prosecution appealed to the circuit court by leave granted, again arguing that the implied consent statute did not require the blood sample to be preserved because the test results, not the blood sample, was the evidence. The prosecution also argued defendant’s due process rights were not violated by the destruction of the blood sample, relying on California v Trombetta, 467 US 479; 104 S Ct 2528; 81 L Ed 2d 413 (1984). The circuit court accepted the prosecution’s argument and found the district court erred in suppressing the test results.

On appeal, defendant argues the blood test results should be suppressed at trial because the police violated § 5. Statutory interpretation is a question of law that this Court reviews de novo. People v Denio, 454 Mich 691, 698; 564 NW2d 13 (1997).

Section 5 provides:

When an officer in the execution of a search warrant finds any property or seizes any of the other things for which a search warrant is allowed by this act, the officer, in the presence of the person from whose possession or premises the property or thing was taken, if present, or in the presence of at least 1 other person, shall make a complete and accurate tabulation of the property and things so seized. The officer taking property or other things under the warrant shall forthwith give to the person from whom or from whose premises the property was taken a copy of the warrant and shall give to the person a copy of the tabulation upon completion, or shall leave a copy of the warrant and tabulation at the place from which the property or thing was taken. He shall file the tabulation promptly with the court or magistrate. The tabulation may be suppressed by order of the court until the final disposition of the case unless otherwise ordered. The property and things so seized shall be safely kept by the officer so long as necessary for the purpose of being produced or used as evidence on any trial. As soon as practicable after trial, stolen or embezzled property shall be restored to the owner thereof. Other things seized under the warrant shall be disposed of under direction of the court or magistrate, except that moneys and other useful property shall be turned over to the state, county or municipality, the officers of which seized the property under the warrant. Such moneys shall be credited to the general fund of the state, county or municipality. [MCL 780.655; MSA 28.1259(5) (emphasis added.)]

The thing seized in this case was defendant’s blood, which was destroyed on May 16, 1995. Defendant does not allege any bad faith on the part of the police and does not dispute that the blood was destroyed pursuant to routine departmental procedure. However, because the blood was destroyed, it was not safely kept for the purpose of being produced or used as evidence at trial. Accordingly, we find the statute was violated in this case.

The issue is whether suppression of the test results is the appropriate remedy for this violation of § 5. The statute itself does not provide a remedy for its violation. The parties have not cited, and our research has not revealed, a case where the police violated § 5 by failing to preserve seized items for trial in the context of a criminal case.²

In People v Stoney, 157 Mich App 721; 403 NW2d 212 (1987), this Court addressed the issue whether test results should be suppressed in the context of the implied consent statute, MCL 257.625a; MSA 9.2325(1). In Stoney, the defendant’s blood was drawn and tested by hospital personnel. The hospital later discarded the blood sample and forwarded the test results, which revealed the defendant’s blood alcohol content was 0.21 percent, to the prosecutor pursuant to subsection 9 of the implied consent statute. This Court held the trial court erred in suppressing the test results because the plain language of subsection 1 of the implied consent statute provides it is the test results, not the blood sample itself, which are admissible at trial. Stoney, supra at 725. Moreover, this Court reasoned that while the statute provides the results of the test must, upon request, be made available to the defendant or the defendant’s attorney, it does not require preservation of the sample itself. Id. Accordingly, this Court held the test results were admissible under the implied consent statute and the destruction of the sample was “irrelevant.” Id.

However, this case is not governed by the implied consent statute because the police obtained the blood sample through a search warrant. This Court has repeatedly held that when authorities obtain a search warrant to take a blood sample, the issue of consent is removed, and the implied consent statute is not applicable. Manko v Root, 190 Mich App 702, 704; 476 NW2d 776 (1991); People v Snyder, 181 Mich App 768, 770; 449 NW2d 703 (1989); People v Hempstead, 144 Mich App 348, 353; 375 NW2d 445 (1985); People v Cords, 75 Mich App 415, 421; 254 NW2d 911 (1977). In other words, the search warrant procedure exists independently of the testing procedure set forth in the implied consent statute. Manko, supra at 704; Snyder, supra at 770. Although we recognize that the implied consent statute refers to chemical tests performed pursuant to a court order in subsection 6(b)(iv), this portion of the statute simply states that the allegedly intoxicated driver must be advised that if the driver refuses the officer’s request to take the test, the test may be taken pursuant to a court order. See Snyder, supra at 771. The implied consent statute does not provide that tests performed pursuant to a court order fall within its purview. We refuse to read this into the statute as written by the Legislature. Accordingly, we must look to § 5 to determine the appropriate remedy in this case.³

The parties have not cited, and our research has not revealed, a case where the police violated § 5 by failing to preserve seized items for trial in the context of a criminal case. However, our research has revealed that this Court has addressed a violation of § 5 in the context of a civil forfeiture proceeding in In re Forfeiture of $25,505, 220 Mich App 572; 560 NW2d 341 (1996).⁴ There, the officers seized cash found in the ceiling of the claimant’s basement that allegedly was the proceeds of his son’s drug trafficking. The officers did not sequester the cash to preserve it for trial, but instead merely deposited it in a bank account. This Court assumed § 5 was violated because the prosecution did not dispute there was a violation. The claimant argued he was prejudiced by this violation because he could not test the cash for fingerprints to prove that it was his, not his son’s.^{5 6}Id. at 577. After examining previous decisions regarding violations of other portions of § 5, see note 2, supra, this Court recognized that “even in the context of criminal proceedings, suppression of the evidence is not a necessary remedy for a violation of § 5.” In re Forfeiture, supra at 578. This Court explained that the language of § 5 suggested “the principal focus of the statute is to ensure police integrity rather than to create a personal legal right in the claimant. The preservation of evidence for the benefit of a party from whom property is seized is a clear benefit of § 5 but only an incidental one.” Id. at 579. This Court concluded that summarily returning seized property to a claimant was not an appropriate remedy for a violation of § 5. Instead, this Court held that “an effective remedy for a violation of § 5 is normally to instruct the factfinder that it may infer that evidence unpreserved because of violations of the statute would have favored the claimant.” Id. at 579-580. We believe giving an adverse inference instruction is also appropriate in the context of criminal proceedings. As explained in In re Forfeiture, supra at 580:

[A] violation of § 5 resulting in the loss of relevant evidence raises a rebuttable presumption that the unpreserved evidence would have been adverse to the police. The police thus act at their peril when they fail to observe the requirements of § 5.

In this case, the violation of § 5 did result in the loss of relevant evidence. We agree with the district court that the blood sample was directly relevant to the issue of defendant’s blood alcohol content. We recognize the fact that the blood sample was not meaningful without test results, but we do not believe this fact negates the blood sample’s relevance.

We also believe that to warrant an adverse inference instruction, a defendant must articulate how the violation of § 5 prejudiced the defendant. In In re Forfeiture, supra at 578-579, this Court emphasized that the claimant had alleged prejudice from the violations of § 5, namely, that he could not test the lost cash for fingerprints, which prejudiced his ability to prove his claim that the money did not belong to his son. Moreover, in People v Lucas, 188 Mich App 554, 573; 470 NW2d 460 (1991), where the police failed to leave copies of the search warrant and tabulation with the defendant, this Court held that the “hypertechnicai” violation of § 5 did not require suppression of the seized evidence, “particularly where defendant cannot articulate any harm or prejudice that resulted.” We do not characterize the violation in this case as hypertechnical, however we conclude defendant must articulate how he was prejudiced in this case. In other words, defendant must explain how the lost evidence might be expected to play a significant role in his defense. Although we are disturbed at the conclusory nature of defendant’s appellant brief, which fails to allege prejudice, defendant argued below the loss of the blood sample prevented him from conducting an independent analysis of the sample. Accordingly, the articulation requirement is met in this case. For these reasons, an adverse inference instruction to the jury is appropriate at trial in this case.

Finally, we note the prosecution has argued defendant’s due process rights were not violated in this case, primarily relying on Trombetta, supra. Defendant relies on the search warrant statute, not the constitution, in arguing the police should have preserved the blood sample. Our holding is confined to interpreting the search warrant statute, and whether there was a violation of defendant’s due process rights is not relevant to this determination.

Affirmed as modified and remanded for trial. We do not retain jurisdiction.

Cavanagh, J., concurred.

1 Defendant also argued the statute was violated because the police did not provide him with a copy of the tabulation. The district court ultimately rejected this argument, and it is not relevant to this appeal.

2 This Court has addressed violations of other portions of § 5. See People v Lucas, 188 Mich App 554, 573; 470 NW2d 460 (1991) (holding the failure to leave copies of the search warrant and tabulation with the defendant was a “hypertechnical” violation of § 5 and did not require suppression of the seized evidence); People v Myers, 163 Mich App 120; 413 NW2d 749 (1987) (holding suppression not required where the police committed a “hypertechnical” violation of § 5 by failing to give the defendant a copy of the search warrant); People v Tennon, 70 Mich App 447; 245 NW2d 756 (1976) (holding the failure to make the tabulation in the presence of the defendant, a “ministerial duty,” did not amount to error requiring reversal.)

3 We also note it is clear the officers were proceeding pursuant to the search warrant statute because they complied with other requirements set forth in § 5 such as filing the tabulation, i.e., the return, and providing defendant a copy of the search warrant.

4 The trial court did not have the benefit of this decision at the time of its ruling. However, it was released well before the parties filed their briefs on appeal and neither party cited this decision.

5 The claimant also contended the officers violated § 5 because they did not count the cash in his presence, which prejudiced his ability to prove his claim the officers seized more than $25,505 in cash.

6 See also Arizona v Youngblood, 488 US 51, 56; 109 S Ct 333; 102 L Ed 2d 281 (1988), in which the United States Supreme Court, in the context of unpreserved breath samples, refused to suppress Breathalyzer test results and remarked:

[FJirst, “the officers here were acting in ‘good faith and in accord with their normal practice’ ”; second, in the light of the procedures actually used the chances that preserved samples would have exculpated the defendants were slim; and third, even if the samples might have shown inaccuracy in the tests, the defendants had “alternative means of demonstrating their innocence.” [Citations omitted.]