People v. Borchard-Ruhland

583 N.W.2d 247 (1998) 230 Mich. App. 166

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Ann Charlotte BORCHARD-RUHLAND, Defendant-Appellee.

Docket No. 200048.

Court of Appeals of Michigan.

Submitted April 21, 1998, at Lansing. Decided June 2, 1998, at 9:15 a.m. Released for Publication September 10, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Joseph K. Scheeran, Prosecuting Attorney, and Timothy J. Kelly, Chief Assistant Prosecuting Attorney for the People.

Smith, Bovill, Fisher, Meyer & Borchard, P.C. by Fred L. Borchard and James F. Troester, Saginaw, for Defendant-Appellee.

Before HOLBROOK, P.J. and GRIBBS and R.J. DANHOF^[*], JJ.

GRIBBS, Judge.

This is a prosecutor's appeal from a circuit court order denying the prosecutor's application for leave to appeal from the district court opinion and order suppressing evidence of a blood alcohol test administered to defendant pursuant to her consent and while she was not under arrest. The test was administered after defendant had been involved in an automobile accident and had been admitted to a hospital. Defendant was subsequently arrested and charged with two counts of operating a motor vehicle while under the influence of intoxicating liquor or while having a blood alcohol content greater than 0.10 grams per 100 milliliters of blood (OUIL/BAC), causing serious injury. M.C.L. § 257.625(5); M.S.A. § 9.2325(5). We affirm.

The prosecutor argues that the district court erred in suppressing the blood test results on the ground that defendant had not been advised of her chemical test rights. Although the police officer did not comply with the requirements of the implied consent statute, M.C.L. § 257.625c; MSA 9.2325(3), the prosecutor contends that defendant was not protected by the statute because she was not under arrest and she voluntarily consented to the test. We disagree.

A blood test is deemed to have been given under the implied consent statute unless express disclaimers of reliance on the statute are made to both the defendant and the health-care worker administering the test. People v. McKinney, 88 Mich.App. 715, 720, 278 N.W.2d 728 (1979). Test results obtained pursuant to the exercise of statutory authority are not admissible unless obtained in conformity with the statute. McNitt v. Citco Drilling Co., 397 Mich. 384, 393, 245 N.W.2d 18 (1976); People v. Weaver, 74 Mich.App. 53, 58, 253 N.W.2d 359 (1977).

The question here is whether the blood test was administered "pursuant to the exercise of statutory authority." Id. We conclude that the test was administered "under color of statutory authority." McNitt, supra at 391-392, 394, 245 N.W.2d 18; Weaver, supra at 59-60, 253 N.W.2d 359. The blood sample was taken at the request of a police officer specifically to determine alcohol content and not for diagnostic purposes. The nurse who drew defendant's blood was not informed that the officer's request was made without statutory authority or that she could be acting without protection from civil and criminal liability. M.C.L. § 257.625a(6)(c); M.S.A. § 9.2325(1)(6)(c).

We are not persuaded by the prosecutor's argument that the previous law on this matter no longer applies because the statute was amended to include both criminal and civil proceedings. The language concerning implied consent has not undergone any substantive change. We do not agree that the amendment broadening the scope for introduction of blood test results renders the previous case law on implied consent inapplicable. Further, because we find that the blood test was administered under authority of the statute, we need not consider whether authority existed outside the statute to administer the blood test. Weaver, supra at 61, 253 N.W.2d 359.

We are not unsympathetic to the prosecutor's urging that public policy dictates a different result. However, our primary goal is to ascertain and give effect to the intent of the Legislature. When promulgating new law, the Legislature is presumed to be familiar with existing law on the same subject and to have considered its effect on new legislation. State Treasurer v. Gardner, 222 Mich.App. 62, 67, 564 N.W.2d 51 (1997). Here, where the amendments of the statute were not intended to alter the purpose underlying implied consent, we conclude that, when a person is asked to consent to the withdrawal of blood for chemical testing, express disclaimer is still required to preclude application of the implied consent provisions.

Affirmed.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.