Holmberg v. 54-A Judicial District Judge

60 Mich. App. 757 (1975) 231 N.W.2d 543

HOLMBERG
v.
54-A JUDICIAL DISTRICT JUDGE

Docket No. 19921.

Michigan Court of Appeals.

Decided April 28, 1975.

Church, Wyble, Kritselis & Tesseris (by Thomas H. Hay), for plaintiff.

Raymond L. Scodeller, Prosecuting Attorney for Ingham County, and Lawrence J. Emery, Assistant Prosecuting Attorney, for the people.

Before: QUINN, P.J., and BASHARA and N.J. KAUFMAN, JJ.

Leave to appeal denied, 394 Mich 838.

PER CURIAM.

Plaintiff was arrested for and charged with driving under the influence of intoxicating liquor, MCLA 257.625; MSA 9.2325. Prior to trial, plaintiff moved to dismiss the charges on the grounds that he was denied due process of law and equal protection of law. The basis for this claim was that although the police advised plaintiff of his right to counsel, they refused to permit him to call his attorney before requiring him to submit to a chemical test under the implied consent law, MCLA 257.625c; MSA 9.2325(3). Plaintiff contends that this refusal caused him to decline the chemical test, thereby depriving him of his statutory and constitutional rights to gather evidence in his own behalf. Defendant denied this motion.

Plaintiff sought review of this ruling by writ of superintending control in the circuit court. Thereafter, plaintiff moved for summary judgment. The circuit judge denied this motion and affirmed defendant. On leave granted, plaintiff appeals.

The Breathalyzer test is a fast, safe way to provide at the least evidence of presumption as to whether a driver is under the influence by statutory definition. The attendant delays which may be involved by the process of seeking advice of counsel would not provide a realistic appraisal of a driver's condition because of the relative rapidity with which the body rids itself of alcohol.

Our Supreme Court spoke cogently to this issue in Collins v Secretary of State, 384 Mich 656, 688; 187 NW2d 423 (1971). There, now Chief Justice T.G. KAVANAGH stated:

"This least offensive test of all — the breath test — can be administered quickly and effectively practically on the spot, by a police officer."

The denial of the right to have counsel present prior to taking a Breathalyzer test does not violate the Sixth Amendment rights. The United States Supreme Court in United States v Wade, 388 US 218, 228; 87 S Ct 1926, 1933; 18 L Ed 2d 1149 (1967), found that:

"The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial."

We recognize that Wade dealt with a line-up, but we find the foregoing quotation equally applicable to the case before us because of the following language in Wade, which immediately precedes the above quotation, at 388 US 227, 228:

"The Government characterizes the lineup as a mere preparatory step in the gathering of the prosecution's evidence, not different — for Sixth Amendment purposes — from various other preparatory steps, such as systematized or scientific analyzing of the accused's fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts."

See also Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966), where the Court held that compelling an accused to submit to a blood test over his objection, on the advice of counsel, does not violate the Sixth Amendment right to assistance of counsel.

For the same reason, denial of the right to consult with counsel before an accused decides whether to take the Breathalyzer test does not violate the Sixth Amendment. State v Petkus, 110 NH 394; 269 A2d 123 (1970), cert den, 402 US 932; 91 S Ct 1522; 28 L Ed 2d 867 (1971).

The mere allowing of a reasonable phone call to counsel prior to administering the test would be a more commendable practice on the part of the police. However, we conclude on the basis of the foregoing that defendant's constitutional rights were not violated.

Affirmed.