People v. Anstey

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 31, 2006

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 128368

MARK JOSEPH ANSTEY,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH

CORRIGAN, J.

Defendant was arrested for operating a motor vehicle while under the

influence of intoxicating liquor or with an unlawful blood alcohol level

(OUIL/UBAL), a violation of MCL 257.625(1)(a) or (b). Following defendant’s

arrest, defendant agreed to take a police officer-administered chemical breath test

of defendant’s bodily alcohol level. Under MCL 257.625a(6)(d), after having

agreed to take the police-administered test, defendant was entitled to “a reasonable

opportunity to have a person of his or her own choosing administer” an

independent chemical test. The prosecution does not dispute the district court’s

ruling that the statute was violated.
 We granted leave to appeal in this case and directed the parties to include

among the issues briefed: (1) whether dismissal is the proper remedy for the

denial of an independent chemical test in violation of MCL 257.625a(6)(d); and

(2) whether People v Koval, 371 Mich 453; 124 NW2d 274 (1963), was correctly

decided. 474 Mich 886 (2005).

We conclude that because the statute does not specify a remedy, dismissal

is not warranted for a statutory violation. In so holding, we specifically overrule

Koval, supra, and its progeny. We hold, however, that when the trial court

determines that the defendant was deprived of his or her right to a reasonable

opportunity for an independent chemical test under MCL 257.625a(6)(d), the court

may instruct the jury that the defendant’s statutory right was violated and that the

jury may decide what significance to attach to this fact. We also hold that

defendant’s due process right to present a defense was not violated.

I. FACTS

Defendant was stopped by the police and arrested for OUIL/UBAL. The

police transported defendant to jail and requested that he take a chemical breath

test. Defendant agreed to take the test. It reflected that his body alcohol level was

0.21 grams per 210 liters of breath, plainly above the legal limit.1 Defendant then

1
At the time defendant was arrested, MCL 257.625(1) set the statutory
intoxication threshold at a body alcohol content of 0.10 grams per 100 milliliters
of blood, per 210 liters of breath, or per 67 milliliters of urine. Pursuant to 2003
PA 61, however, the statutory intoxication threshold has been reduced from 0.10
to 0.08.

2

asked the arresting officer to transport him to a medical facility in Indiana for an

independent chemical test, but the officer refused to do so. Defendant next asked

the officer to transport him to Watervliet Community Hospital, about a 15- to 20-

minute drive from the jail. The officer again refused, but offered to take defendant

to Lakeland Hospital/St. Joseph Medical Center, a nearby location where the

police routinely took suspects for chemical tests. Defendant refused this offer,

apparently because he did not believe that he could obtain a truly independent test

there. Consequently, defendant never received an independent test of his body

alcohol level.

Defendant was charged with OUIL, second offense, and/or UBAL, second

offense, MCL 257.625(1)(a) or (b); MCL 257.625(8)(b)2. Defendant moved to

dismiss the charges because the arresting officer unreasonably denied his request

for an independent chemical test under MCL 257.625a(6)(d). The district court

found defendant’s request to go to the Indiana hospital unreasonable because the

officer would have had to travel outside his jurisdiction. But the district court

found that defendant’s request to go to Watervliet Hospital for an independent

chemical test was reasonable, and that the officer violated MCL 257.625a(6)(d) by

failing to honor defendant’s request. The court determined that dismissal of the

charges would be an “inappropriate and somewhat draconian” remedy because

defendant was not completely denied his right to an independent chemical test,

2
MCL 257.625(8)(b) has since been redesignated as MCL 257.625(9)(b).

3

because he was given the opportunity to obtain such a test at Lakeland Hospital.

Instead, the court held that suppression of the results of the police-administered

chemical test was the proper remedy.

The Berrien County Trial Court reversed, ruling that Koval and its progeny

interpreting MCL 257.625a had consistently held that dismissal was the

appropriate remedy for the unreasonable denial of an independent chemical test.

The court held that the Legislature would have specifically provided for a different

remedy or amended the statute to provide for a different remedy if it had not

intended for the remedy to be dismissal. Instead, the Legislature had silently

acquiesced to the remedy of dismissal by not amending the statute in light of

Koval and subsequent Court of Appeals decisions holding that dismissal is the

appropriate remedy. The trial court then remanded to the district court for entry of

an order dismissing the charges.

The Court of Appeals affirmed. People v Anstey, unpublished opinion per

curiam of the Court of Appeals, issued February 8, 2005 (Docket No. 255416).

We granted the prosecution’s application for leave to appeal. 474 Mich 886

(2005).

II. STANDARD OF REVIEW

The prosecutor challenges whether dismissal of the charges against

defendant was appropriate under MCL 257.625a(6)(d). Questions of statutory

interpretation are questions of law that this Court reviews de novo. People v

Denio, 454 Mich 691, 698; 564 NW2d 13 (1997).

4

 III. ANALYSIS

A. MCL 257.625a(6)(d)

The question before this Court is whether the Legislature intended that a

violation of MCL 257.625a(6)(d) should result in dismissal of the case because the

officer unreasonably denied defendant’s request for an independent chemical test

administered by a person of his own choosing.3 “The primary goal in construing a

statute is ‘to give effect to the intent of the Legislature.’ We begin by examining

the plain language of the statute.” People v Stewart, 472 Mich 624, 631; 698

NW2d 340 (2002) (citations omitted).

The right to a reasonable opportunity to have an independent chemical test

is created by statute, MCL 257.625a(6)(d):

A chemical test described in this subsection shall be
administered at the request of a peace officer having reasonable
grounds to believe the person has committed a crime described in
section 625c(1). A person who takes a chemical test administered at
a peace officer’s request as provided in this section shall be given a
reasonable opportunity to have a person of his or her own choosing
administer 1 of the chemical tests described in this subsection within
a reasonable time after his or her detention. The test results are
admissible and shall be considered with other admissible evidence in
determining the defendant’s innocence or guilt. If the person
charged is administered a chemical test by a person of his or her own
choosing, the person charged is responsible for obtaining a chemical
analysis of the test sample. [Emphasis added.]

3
We offer no opinion regarding whether the district court correctly ruled
that the police violated MCL 257.625a(6)(d). But because the prosecution does
not challenge the district court’s ruling, we assume for purposes of this section of
the opinion that the statute was violated.

5

Notably, the Legislature did not specify what remedy to apply if a police officer

failed to advise, or denied, a defendant of his or her right to a reasonable

opportunity to obtain an independent chemical test.

By contrast, the Legislature has clearly specified that if a prosecutor fails to

comply with subsection 8 of MCL 257.625a, the remedy available to a defendant

for violation of subsection 8 of the statute is suppression of the results of the state-

administered chemical test.4 Had the Legislature intended a comparable remedy

for a violation of subsection 6(d)—or even the more drastic remedy of dismissal—

it could have so specified. People v Monaco, 474 Mich 48, 58; 710 NW2d 46

(2006) (citation omitted) (“‘Courts cannot assume that the Legislature

inadvertently omitted from one statute the language that it placed in another

statute . . . .’”).

MCL 257.625a(7) is also noteworthy. At the time defendant was arrested,

MCL 257.625a(7) provided, in pertinent part, as follows:5

4
MCL 257.625a(8) provides:
If a chemical test described in subsection (6) is administered,
the test results shall be made available to the person charged or the
person’s attorney upon written request to the prosecution, with a
copy of the request filed with the court. The prosecution shall
furnish the results at least 2 days before the day of the trial. The
prosecution shall offer the test results as evidence in that trial.
Failure to fully comply with the request bars the admission of the
results into evidence by the prosecution. [Emphasis added.]
5
Koval and its progeny did not address this subsection (or its then-existing
equivalent) in determining that dismissal of charges was the appropriate remedy
for an unreasonable denial of the right to an independent chemical test.

6

 The provisions of subsection (6) relating to chemical testing
do not limit the introduction of any other admissible evidence
bearing upon the question of whether a person was impaired by, or
under the influence of, intoxicating liquor . . . .[6]

Subsection 7 indicates that, notwithstanding the provisions regarding chemical

testing evidence set forth in subsection 6, the Legislature intended to allow the

prosecution to go forward on other evidence establishing impaired operation of a

motor vehicle. Given this statutory language, a prosecutor could adduce evidence

relating to a defendant’s erratic driving, inability to perform field sobriety tests, or

slurred speech, as well as other evidence tending to establish the defendant’s

impairment. Reading this subsection together with subsection 6, it would seem

that the Legislature’s intent, whether or not MCL 257.625a(6)(d) was violated,

was to permit a prosecutor to go forward under MCL 257.625(1)(a) (OUIL) using

other evidence, beyond chemical testing, to establish guilt. Dismissal, therefore,

was not an anticipated remedy.7

6
Subsection 7 was amended in 2003 to provide, in pertinent part: “The
provisions of subsection (6) relating to chemical testing do not limit the
introduction of any other admissible evidence bearing upon any of the following
questions: . . .” 2003 PA 61. Our analysis applies equally to the amended statute.
7
Justice Cavanagh argues (and the trial court held) that the Legislature’s
decision not to add a remedy to MCL 257.625a(6)(d) in post-Koval amendments
to the statute indicates the Legislature’s agreement with the Koval Court’s
interpretation of the statute. Justice Cavanagh, however, ignores our holding in
Neal v Wilkes, 470 Mich 661, 668 n 11; 685 NW2d 648 (2004):
[A]s we recently explained in People v Hawkins, 468 Mich
488, 507-510; 668 NW2d 602 (2003), neither “legislative
acquiescence” nor the “reenactment doctrine” may “be utilized to
subordinate the plain language of a statute.” “Legislative
(continued…)

7

(…continued)
acquiescence” has been repeatedly rejected by this Court because
“Michigan courts [must] determine the Legislature’s intent from its
words, not from its silence.” Donajkowski v Alpena Power Co, 460
Mich 243, 261; 596 NW2d 574 (1999). Although, where statutory
language is ambiguous, the reenactment doctrine may be a more
useful tool of construction, “in the absence of a clear indication that
the Legislature intended to either adopt or repudiate this Court’s
prior construction, there is no reason to subordinate our primary
principle of construction—to ascertain the Legislature’s intent by
first examining the statute’s language—to the reenactment rule.” Id.
at 508-509. [Emphasis in original.]
Because MCL 257.625a(6)(d) omits a remedy for a violation of the right to a
reasonable opportunity for an independent chemical test, the reenactment doctrine
is inapplicable. Contrary to Justice Cavanagh’s argument, we do not hold that the
Legislature left ambiguous the remedy for a violation of the statute. Because the
Legislature did not provide a remedy in the statute, we may not create a remedy
that only the Legislature has the power to create. Our holding that the judiciary
has the inherent authority to instruct the jury regarding a violation of the statute
does not create such a remedy.
Further, the amendments to MCL 257.625a(6)(d) do not clearly
demonstrate through words the Legislature’s intention to adopt or repudiate
Koval’s interpretation of the statute. Justice Cavanagh erroneously focuses on the
Legislature’s silence rather than its words. We interpret the statute by examining
its plain language and by employing applicable rules of statutory construction. In
arguing that dismissal is the appropriate remedy for a violation of MCL
257.625a(6)(d), Justice Cavanagh disregards the text of the statute and the rule of
statutory construction that courts cannot assume that the Legislature inadvertently
omitted language from one portion of the statute that it placed in another portion
of the statute. Monaco, supra at 58. It is Justice Cavanagh, not the majority, that
“chooses to disregard rules of statutory construction . . . .” Post at 7.
Further, we reject Justice Cavanagh’s contention that our holding fails to
give meaning to the word “shall” in the statute. While Justice Cavanagh correctly
argues that the word “shall” indicates that the right to a reasonable opportunity for
an independent chemical test is mandatory, this is not the issue before us. Rather,
the issue is what consequences the Legislature intended when this mandatory right
is violated.

8

 Notwithstanding the absence of statutory language mandating dismissal for

a violation of MCL 257.625a(6)(d), the trial court and the Court of Appeals held

that dismissal of the charges against defendant was required because of this

Court’s ruling in Koval, supra. This Court interpreted a previous version of MCL

257.625a(6)(d) in Koval, supra. In that case, the defendant was stopped for

driving while intoxicated. Koval, supra at 456-457. The police officers failed to

advise the defendant of his right to have an independent chemical test, contrary to

defendant’s statutory right.8 The previous version of the statute, like the present

version, did not provide a remedy. This Court held that noncompliance with the

mandatory statutory requirement required dismissal of the charges against the

defendant. Id. at 459. In reaching this conclusion, this Court cited the mandatory

form of the statute and noted that the statute “was enacted for the protection and

8
At the time, the pertinent language of the statute provided as follows:
“(3) A person charged with driving a vehicle while under the
influence of intoxicating liquor shall be permitted to have a licensed
physician or registered nurse, under the supervision of a physician of
his own choosing, administer a chemical test as provided in this
section within a reasonable time after his detention, and the results
of such test shall be admissible if offered by the defendant and shall
be considered with other competent evidence in determining the
innocence or guilt of the defendant. Any person charged with
driving a vehicle while under the influence of intoxicating liquor
shall have the right to demand that the test provided for in this
section must be given him, provided facilities are reasonably
available to administer such test, and the results of such test shall be
admissible if offered by the defendant and shall be considered with
other competent evidence in determining the innocence or guilt of
(continued…)

9

benefit of a defendant charged with operating a motor vehicle while under the

influence of intoxicating liquor.” Id. at 458.9

As discussed, the text of the statute makes clear that the Legislature did not

intend the remedy of dismissal to follow from a violation of the right to a

reasonable opportunity for an independent chemical test. Additionally, our case

law supports the conclusion that neither dismissal nor suppression of the evidence

is an appropriate remedy for a violation of MCL 257.625a(6)(d). In People v

Hawkins, 468 Mich 488, 512-513; 668 NW2d 602 (2003), this Court held that the

exclusionary rule is “a harsh remedy designed to sanction and deter police

misconduct where it has resulted in a violation of constitutional rights . . . .”

(Emphasis partially deleted.) This appeal also involves violation of a statutory

right, not a constitutional right.10 This Court “reaffirm[ed] that where there is no

(…continued)
the defendant. The defendant shall be advised of his right to the test
provided for in this subsection.” [Koval, supra at 455-456.]
9
Several Court of Appeals opinions decided after Koval have held or
recognized that dismissal is the appropriate remedy for a violation of the right to a
reasonable opportunity for an independent chemical test. See, e.g., People v
Green, 260 Mich App 392, 407; 677 NW2d 363 (2004), People v Prelesnik, 219
Mich App 173, 181; 555 NW2d 505 (1996), overruled on other grounds in People
v Wager, 460 Mich 118, 123-124; 594 NW2d 487 (1999), People v Hurn, 205
Mich App 618, 620; 518 NW2d 502 (1994), People v Dicks, 190 Mich App 694,
701; 476 NW2d 500 (1991), People v Willis, 180 Mich App 31, 37; 446 NW2d
562 (1989), People v Underwood, 153 Mich App 598, 600; 396 NW2d 443
(1986), and People v Burton, 13 Mich App 203, 207; 163 NW2d 823 (1968). We
overrule these cases, along with Koval.
10
See our discussion of the due process issue later in this opinion.

10

determination that a statutory violation constitutes an error of constitutional

dimensions, application of the exclusionary rule is inappropriate unless the plain

language of the statute indicates a legislative intent that the rule be applied.” Id. at

507. Where there is nothing in the statutory language indicating that the

exclusionary rule applies to a violation of a statute, this Court should decline to

infer such legislative intent, because “[t]o do otherwise would be an exercise of

will rather than judgment.” People v Stevens (After Remand), 460 Mich 626, 645;

597 NW2d 53 (1999) (emphasis in original). This Court has repeatedly applied

these principles in holding that suppression of the evidence is not an appropriate

remedy for a statutory violation where there is no indication in the statute that the

Legislature intended such a remedy and no constitutional rights were violated.

See, e.g., Hawkins, supra; People v Hamilton, 465 Mich 526; 638 NW2d 92

(2002), overruled in part on other grounds in Bright v Ailshie, 465 Mich 770, 775

n 5; 641 NW2d 587 (2002); People v Sobczak-Obetts, 463 Mich 687; 625 NW2d

764 (2001)11; and Stevens, supra. Applying similar reasoning, we hold that

dismissal, which is an even more drastic remedy, is not an appropriate remedy for

a statutory violation unless the statute clearly provides otherwise. The language of

11
We are puzzled by Justice Cavanagh’s decision to single out our
“analysis” of Sobczak-Obetts, supra, and distinguish it on its facts. We list
Sobczak-Obetts, supra, only as an example of a case in which this Court held that
suppression of the evidence is not an appropriate remedy for a statutory violation
where there is no indication in the statute that the Legislature intended such a
remedy and no constitutional rights were violated. We do not hold that the
statutes in Sobczak-Obetts, supra, are similar to MCL 257.625a(6)(d).

11

MCL 257.625a does not reveal that the Legislature intended to impose the drastic

remedy of dismissal or suppression of the evidence when an officer fails to give a

defendant a reasonable opportunity for an independent chemical test.

Accordingly, neither of these remedies is appropriate for a violation of MCL

257.625a(6).12 We overrule Koval’s holding to the contrary.13

But while the text of MCL 257.625a shows that the Legislature did not

intend that dismissal or suppression of the evidence follow from a violation of

subsection 6(d), the language of the statute does not render this Court powerless to

act in the face of a police agency’s violation of a defendant’s statutory right to

obtain potentially exculpatory evidence under MCL 257.625a(6)(d). Through

12
Further, neither dismissal nor suppression of the results of the police-
administered chemical test is appropriate because these remedies would put the
prosecution in a worse position than if the police officer’s improper conduct had
not occurred. Stevens, supra at 640-641. Moreover, the exclusionary rule is
inappropriate because the rule “forbids the use of direct and indirect evidence
acquired from governmental misconduct,” and there is no causal relationship
between the officer’s failure to provide defendant with a reasonable opportunity
for an independent chemical test and the police-administered chemical test.
Sobczak-Obetts, supra at 710 (emphasis in original and citations omitted); see also
Hudson v Michigan, ___ US ___, ___ ; 126 S Ct 2159, ___; 165 L Ed 2d 56, 64-
65 (2006). Finally, suppression is not an appropriate remedy for a violation of the
statute, because the loss of evidence should not be remedied by preventing the jury
from considering more relevant evidence. Rather than promoting the truth-
seeking function at trial, suppression of the evidence exacts a “‘“costly toll” upon
truth-seeking and law enforcement objectives . . . .’” Id. ___ US ___; 126 S Ct
___; 165 L Ed 2d 65, quoting Pennsylvania Bd of Probation & Parole v Scott, 524
US 357, 364; 118 S Ct 2014; 141 L Ed 2d 344 (1998).
13
We do not, as Justice Cavanagh contends, “simply close the books and
end the inquiry” at this point. Post at 4. Rather, the remainder of our opinion is
(continued…)

12

MCL 257.625a(6)(d), the Legislature conferred on defendants a statutory right to

develop potentially exculpatory evidence to refute the results of a police-

administered chemical test. Thus, when a police officer denies a defendant his or

her statutory right to a reasonable opportunity for an independent chemical test

administered by a person of his or her own choosing, the officer prevents the

defendant from exercising a statutory right to discover potentially favorable

evidence in his or her defense.

The jury should be permitted to weigh the police officer’s wrongful

conduct as well as the statutory right that the officer denied. When the defendant

argues before trial that he was deprived of a reasonable opportunity for an

independent chemical test, the trial court must determine, after an evidentiary

hearing if necessary, whether the defendant was in fact deprived of this statutory

right. If the court determines that a statutory violation occurred, then it is free,

upon request of defense counsel, to inform the jury of this violation and instruct

the jury that it may determine what weight to give to this fact. Such a jury

instruction is an appropriate consequence for the violation of a mandatory

statutory right to a reasonable opportunity for an independent chemical test

because it will accord meaning to the right created in subsection 6(d) without

creating a remedy that the Legislature did not intend. A jury instruction will also

(…continued)

dedicated to determining what course of action a trial court may take when a

statutory violation occurs.

13

presumably deter police officers from violating that right in the future. We offer

the following possible instruction for violations of MCL 257.625a(6)(d):

Our law provides that a person who takes a chemical test
administered at a peace officer’s request must be given a reasonable
opportunity to have a person of his or her own choosing administer
an independent chemical test. The defendant was denied such a
reasonable opportunity for an independent chemical test. You may
determine what significance to attach to this fact in deciding the
case. For example, you might consider the denial of the defendant’s
right to a reasonable opportunity for an independent chemical test in
deciding whether, in light of the nonchemical test evidence, such an
independent chemical test might have produced results different
from the police-administered chemical test.[14]

The court’s authority to give such an instruction derives from the inherent

powers of the judiciary. Const 1963, art 6, § 5, entrusts this Court with the

authority and duty to prescribe general rules governing the practice and procedure

in all courts in the state.15 See People v Glass (After Remand), 464 Mich 266, 281;

627 NW2d 261 (2001). “‘It is also well settled that under our form of government

the Constitution confers on the judicial department all the authority necessary to

exercise its powers as a coordinate branch of government.’” Maldonado v Ford

Motor Co, 476 Mich ___, ___; ___ NW2d ___ (Docket No. 126274, decided July

31, 2006), slip op at 18, quoting In re 1976 PA 267, 400 Mich 660, 662-663; 255

NW2d 635 (1977). The judicial powers derived from the constitution may not be

14
This proposed instruction incorporates language from MCL
257.625a(6)(d).
15
“The supreme court shall by general rules establish, modify, amend and
simplify the practice and procedure in all courts of this state.” Const 1963, art 6, §
5.

14

diminished, exercised, or interfered with by other branches of the government.

Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 162; 665 NW2d 452

(2003). Exercising this authority, our Court has enacted court rules that require

the trial court to instruct the jury on the applicable law and give the court the

discretion to comment on the evidence:

Before or after arguments or at both times, as the court elects,
the court shall instruct the jury on the applicable law, the issues
presented by the case, and, if a party requests as provided in subrule
(A)(2), that party’s theory of the case. The court, at its discretion,
may also comment on the evidence, the testimony, and the character
of the witnesses as the interests of justice require. [MCR
2.516(B)(3).][16]

Additionally, the Legislature has directed the judiciary to instruct the jury on the

law and permitted a court to comment on the evidence:

It shall be the duty of the judge to control all proceedings
during the trial, and to limit the introduction of evidence and the
argument of counsel to relevant and material matters, with a view to
the expeditious and effective ascertainment of the truth regarding the
matters involved. The court shall instruct the jury as to the law
applicable to the case and in his charge make such comment on the
evidence, the testimony and character of any witnesses, as in his
opinion the interest of justice may require. [MCL 768.29.]

16
The rules of criminal procedure also require the trial court to instruct the
jury on the applicable law:
After closing arguments are made or waived, the court must
instruct the jury as required and appropriate, but at the discretion of
the court, and on notice to the parties, the court may instruct the jury
before the parties make closing arguments, and give any appropriate
further instructions after argument. After jury deliberations begin,
the court may give additional instructions that are appropriate.
[MCR 6.414(H).]

15

Thus, the judiciary has the authority and obligation under both court rule and

statute to instruct the jury on the applicable law and the discretionary power to

comment on the evidence as justice requires. The Legislature has not stripped the

judiciary of these powers in this context.17

It is also well-established in our case law that the trial court must instruct

the jury on the law applicable to the facts of the case:

“[I]t is the duty of the circuit judge to see to it that the case
goes to the jury in a clear and intelligent manner, so that they may
have a clear and correct understanding of what it is they are to
decide, and he should state to them fully the law applicable to the
facts. Especially is this his duty in a criminal case.” [People v
Henry, 395 Mich 367, 373-374; 236 NW2d 489 (1975), quoting
People v Murray, 72 Mich 10, 16; 40 NW 29 (1888).]

The trial court must instruct the jury not only on all the elements of the charged

offense, but also, upon request, on material issues, defenses, and theories that are

supported by the evidence. People v Rodriguez, 463 Mich 466, 472-473; 620

NW2d 13 (2000); People v Reed, 393 Mich 342, 349-350; 224 NW2d 867 (1975).

The trial court’s authority to comment on the evidence encompasses the

power to summarize the evidence relating to the issues, call the jury’s attention to

particular facts, People v Lintz, 244 Mich 603, 617; 222 NW 201 (1928), and

“point out the important testimony so as to lead the jury to an understanding of its

17
In some situations, the Legislature has forbidden a trial court from
instructing a jury with regard to certain matters. For example, a trial court may
not instruct on the limits on noneconomic damages in product liability and medical
malpractice actions. MCL 600.2946a(2) and MCL 600.6304(5). The Legislature
(continued…)

16

bearings,” Richards v Fuller, 38 Mich 653, 657 (1878). The trial court’s

comments must be fair and impartial, Burpee v Lane, 274 Mich 625, 627; 265 NW

484 (1936), and the court should not make known to the jury its own views

regarding disputed factual issues, People v Young, 364 Mich 554, 558; 111 NW2d

870 (1961), the credibility of witnesses, People v Clark, 340 Mich 411, 420-421;

65 NW2d 717 (1954), or the ultimate question to be submitted to the jury, Lintz,

supra at 617-618.18

The instruction we offer falls within the court’s inherent authority to

instruct the jury on the law applicable to the case and the discretionary power to

(…continued)

has not restricted the trial court’s authority to give jury instructions in the context

of a violation of MCL 257.625a(6)(d).

18
In People v Ward, 381 Mich 624, 628-629; 166 NW2d 451 (1969), this
Court explained that the court’s authority to instruct the jury and comment on the
evidence must be discharged separately:

The trial judge’s twofold authority to instruct the jury on the
law and to make such comment upon the evidence, the testimony,
and the witnesses as, in his opinion, the interest of justice may
require is severable and must be discharged separately. When a trial
judge instructs upon the law he must do so affirmatively. So far as
the jury is concerned, the law is what the judge says it is. They have
the duty to follow his instructions on the law.

As to the court’s comment upon the evidence, such comments
are not binding upon the jury. They do not delineate the jury’s duty
and they must be prefaced by words which leave the jury free to
disregard them in good conscience.

17

comment on the evidence.19 A defendant who is denied the statutory right to a

reasonable opportunity for an independent chemical test administered by a person

of his or her own choosing may advance the defense that the police-administered

test was inaccurate,20 and that the police deprived him or her of the opportunity to

19
We do not, as Justice Weaver states, “rewrite the statute from the bench.”
Post at 4. Our holding that the court has the authority to instruct the jury that the
statute was violated does not usurp the Legislature’s authority by supplying a
remedy that does not exist in the statute. Rather, our holding is based on the
inherent power of the judiciary to instruct on the law and comment on the
evidence.
20
Justice Cavanagh is incorrect that “the defendant is left with absolutely
no meaningful way to refute the prosecutor’s chemical evidence against him in a
criminal trial.” Post at 10 (emphasis in original). An independent chemical test is
not the only way a defendant may challenge the accuracy of the police-
administered test. See California v Trombetta, 467 US 479, 490; 104 S Ct 2528;
81 L Ed 2d 413 (1984) (listing alternative ways in which the defendant could
challenge the results of the Intoxilyzer test). For example, a defendant may
introduce evidence that the machine used to administer the chemical test (in this
case a breathalyzer) was improperly calibrated or maintained. A defendant may
also adduce nonchemical evidence, such as the testimony of a toxicology expert,
who can give an expert opinion on the defendant’s body alcohol level based on the
number of drinks the defendant consumed over a course of time. Despite the
concerns raised in the article cited by the dissent, the Hawaii Supreme Court has
more recently opined that the “Widmark formula,” which estimates an individual’s
body alcohol level based on weight and gender, the type and amount of alcohol,
the absorption rate and the elimination rate, is “widely viewed as reliable.” State v
Vliet, 95 Hawaii 94, 112; 19 P3d 42 (2001). Further, the extrapolation of a
“range” within which a defendant’s body alcohol level falls could be very helpful,
if believed by the jury, by raising a reasonable doubt that the defendant was
operating a motor vehicle with an unlawful blood alcohol level. See, e.g., State v
Preece, 971 P2d 1, 7-8 (Utah App, 1998) (holding that the trial court committed
error requiring reversal by not permitting the defendant to introduce evidence that,
under the “Widmark formula,” his body-alcohol level could have been below the
legal limit at the time he was stopped by the police).
Moreover, a defendant can challenge the accuracy of the police-
administered chemical test itself, as well as the method by which it was operated
(continued…)

18

raise a reasonable doubt of guilt through an independent test. The trial court may

instruct and inform the jury on the requirements of MCL 257.625a(6)(d) and

properly comment on the evidence by bringing to the jury’s attention that the

defendant’s statutory right has been violated. Such an impartial instruction will

communicate no opinion and compel no outcome, but will only inform the jury of

the law and the facts and allow the jury to draw its own conclusions. Thus, it will

not encroach upon the exclusive province of the jury to weigh the testimony and

draw inferences therefrom. People v Larco, 331 Mich 420, 430; 49 NW2d 358

(1951); People v Dupree, 175 Mich 632, 639; 141 NW 672 (1913).

Such an instruction will also advance the judiciary’s duty to assist the jury

in ascertaining the truth. The late Joseph D. Grano once stated that “the goal of

discovering the truth should play a dominant role in designing the rules that

govern criminal procedure.” Grano, Confessions, Truth, and the Law (Ann Arbor,

The University of Michigan Press, 1993), p 6; see also Grano, Implementing the

objectives of procedural reform: The proposed Michigan Rules of Criminal

Procedure—Part I, 32 Wayne L R 1007, 1011, 1018 (1986); and Grano, Special

issue: Introduction—The changed and changing world of constitutional criminal

(…continued)

when the police obtained his or her breath sample. Thus, contrary to the dissent’s

assertion, the results of a police-administered chemical test are not “indisputable.”

See, e.g., Trombetta, supra at 490 (noting that the results of an Intoxilyzer test can

be challenged in a variety of ways, including “faulty calibration, extraneous

interference with machine measurements, and operator error”).

19

procedure: The contribution of the Department of Justice’s Office of Legal

Policy, 22 U Mich J L Reform 395, 402-404 (1989). In analyzing the underlying

purposes and objectives of procedural reform, Grano stated:

[T]he primary objective of criminal procedure is to facilitate
the ascertainment of truth. To some extent, therefore, fairness must
encompass this concern. Accordingly, rules are unfair when they do
not provide either party an adequate opportunity to develop and
present his case. The special concern with fairness for the
defendant, however, stems from the special abhorrence of erroneous
conviction. Thus, basic agreement exists that a rule is unfair if it
denies the defendant an adequate opportunity to defend against the
charges. [Grano, Implementing the objectives of procedural reform:
The proposed Michigan Rules of Criminal Procedure—Part I, 32
Wayne L R 1007, 1018 (1986).]

Promoting the truth-seeking process is one of the judiciary’s primary goals in

determining the appropriate action to take when one party prevents the other from

obtaining evidence. Justice Markman has explained that “[t]he discovery of the

truth is essential to the successful operation of the system’s mechanisms for

controlling crime and mitigating its consequences.” Markman, Special issue:

Foreward: The “truth in criminal justice” series, 22 U Mich J L Reform 425, 428

(1989).21

21
We reject Justice Cavanagh’s argument that dismissal of the charges
better serves the truth-seeking process than allowing the jury to consider the
violation of the defendant’s statutory right to a reasonable opportunity for an
independent chemical test. Dismissal does not merely prevent the jury from
considering relevant evidence (as suppression of the evidence would), but it
prevents the jury from considering the charges altogether. Such a remedy ensures
that the truth will never be discovered. Conversely, a jury instruction that the
statute was violated gives the jury all of the available relevant information. The
instruction gives the defendant an adequate opportunity to defend himself by
(continued…)

20

 By placing all the facts before the fact-finder, the instant instruction will

further the pursuit of the truth and give real effect to the right in MCL

257.625a(6)(d). This instruction will promote a basic premise of our justice

system, that providing more, rather than less, information will generally assist the

jury in discovering the truth. It will communicate an accurate account of what

transpired and allow the jurors to apply the law to the facts as they decide. Where

evidence or a witness is unavailable or compromised because of the conduct of

prosecutors and police officers, the court should not keep more evidence away

from the jurors, but should rather give the jurors all the pertinent information,

including what has been denied to them, and allow them to assess the

consequences.22

(…continued)

arguing that the police-administered test was inaccurate and that an independent

test would have produced a different result.

22
Additionally, MCL 257.625a(6)(d) places a procedural obligation on the
police to enable a defendant to obtain relevant evidence. Police agencies will be
deterred from breaching this obligation if they understand that jurors may consider
the statutory violation at trial. An instruction will not only give concrete effect to
a defendant’s statutory right to secure an independent chemical test, but it will
deter future arbitrary use of police power by limiting the extent to which the state
benefits from its own wrongdoing. But unlike the harsh remedies of suppression
or dismissal, a jury instruction will not seek to “punish” police agencies, but will
rather give the jury relevant information that they may consider when rendering
their verdict.
We reject Justice Cavanagh’s statements that the instruction “encourages”
the police to violate MCL 257.625a(6)(d) and “reward[s]” the police for violating
the statute. Post at 14, 15 n 6. Contrary to Justice Cavanagh’s argument, an
instruction is a meaningful consequence, because it makes the jury aware that the
(continued…)

21

 Prohibiting the trial court from instructing the jury regarding a violation of

MCL 257.625a(6)(d) would keep relevant information from the jury by concealing

the denial of the defendant’s statutory right to develop potentially exculpatory

evidence. Not only would this impede the jury’s search for the truth, but it would

permit police officers to ignore a defendant’s mandatory statutory right to a

reasonable opportunity for an independent chemical test administered by a person

of his own choosing without consequence. Thus, in light of our general power to

instruct and comment on the evidence in criminal cases, and the trial’s goal of

promoting the search for truth, we conclude that in these narrow circumstances,

the courts may give a jury instruction informing the jury that MCL 257.625a(6)(d)

was violated.

(…continued)

police acted inappropriately by violating the statute. Making the jury aware that

the police violated the law in no way “encourages” or “rewards” the police.

Further, Justice Cavanagh argues that a violation of the statutory right to an
independent chemical test puts the police “in a superior position because they will
hold the trump card of indisputable chemical evidence.” Post at 15 n 6 (emphasis
in original). That argument contains two flaws. First, Justice Cavanagh wrongly
assumes that the results of the independent chemical test would have been
favorable to the defendant. Even if the results of the independent chemical test
would have been favorable to the prosecution, the instruction allows the jury to
make what they will of the statutory violation, including finding that the
independent chemical test would have been favorable to the defendant. Second,
the police-administered chemical test is not “undisputable” chemical evidence.
Defendant has many effective ways to challenge this evidence. See n 20 of this
opinion.

22

 While we hold that the trial court may give a jury instruction where there

is a violation of MCL 257.625a(6)(d), an instruction is not necessarily

appropriate for a violation of every statutory right where the statute does not

provide a remedy. It is appropriate in this case because it gives meaning to the

statutory right to a reasonable opportunity for an independent chemical test

administered by a person of his or her own choosing and is consistent with the

judicial power to instruct on the law and comment on the evidence in the interests

of justice. We limit application of the instruction to the statute at issue.

B. Due Process

Defendant argues that the violation of MCL 257.625a(6)(d) also violated

his due process right to present a defense. Because the parties dispute whether a

constitutional violation occurred and Justice Cavanagh argues that defendant’s

due process rights were violated, we address the constitutional issue despite the

lower courts’ decisions not to base their rulings on any constitutional violation.23

But we address only the constitutional issue and offer no opinion on the

23
The district court held that defendant’s request to go to Watervliet
Hospital was reasonable, so the officer violated the statute in denying defendant’s
request. The trial court, while stating that “a due process constitutional issue is
implicated . . . since it relates to perishable evidence,” ultimately held that “[a]
constitutional analysis is not required, since the statutory remedy [dismissal] is
clear.” Unpublished opinion of the Berrien County Trial Court, issued April 20,
2004 (Docket No. 2003-411091-SD), slip op at 8, 9. The Court of Appeals also
did not address any constitutional issues, holding instead that dismissal was
warranted because of the officer’s violation of the statute.

23

correctness of the district court’s ruling that the officer violated the statute,

because that is not at issue in this case.

A criminal defendant has a right to present a defense under our state and

federal constitutions. US Const, Ams VI, XIV; Const 1963, art 1, §§ 13, 17, 20;

People v Hayes, 421 Mich 271, 278; 364 NW2d 635 (1984). “[T]he right to

present a defense is a fundamental element of due process . . . .” Id. at 279. In

Pennsylvania v Ritchie, 480 US 39, 56; 107 S Ct 989; 94 L Ed 2d 40 (1987), the

United States Supreme Court stated, “Our cases establish, at a minimum, that

criminal defendants have the right to . . . put before a jury evidence that might

influence the determination of guilt.”

Under the Due Process Clause of the Fourteenth Amendment,
criminal prosecutions must comport with prevailing notions of
fundamental fairness. We have long interpreted this standard of
fairness to require that criminal defendants be afforded a meaningful
opportunity to present a complete defense. To safeguard that right,
the Court has developed “what might loosely be called the area of
constitutionally guaranteed access to evidence.” United States v.
Valenzuela-Bernal, 458 U.S. 858, 867[ 102 S Ct 3440; 73 L Ed 2d
1193] (1982). Taken together, this group of constitutional privileges
delivers exculpatory evidence into the hands of the accused, thereby
protecting the innocent from erroneous conviction and ensuring the
integrity of our criminal justice system. [California v Trombetta,
467 US 479, 485; 104 S Ct 2528; 81 L Ed 2d 413 (1984).]

Defendant argues that his due process right to obtain potentially

exculpatory evidence was violated under Arizona v Youngblood, 488 US 51; 109

S Ct 333; 102 L Ed 2d 281 (1988), because the officer acted in bad faith in

denying defendant’s request to be taken to Watervliet Hospital for an independent

chemical test. We disagree. In Youngblood, supra at 57-58, the United States

24

Supreme Court held that the government’s failure to preserve potentially

exculpatory evidence violates a criminal defendant’s due process rights if the

defendant can show bad faith on the part of the government. Youngblood is

distinguishable because it involves the government’s failure to disclose existing

evidence in its possession, where the instant case involves defendant’s right to

develop potentially exculpatory evidence not in the government’s possession.24

For due process purposes, there is a crucial distinction between failing to disclose

evidence that has been developed and failing to develop evidence in the first

instance. People v Stephens, 58 Mich App 701, 705; 228 NW2d 527 (1975).

Defendant has cited no cases holding that Youngblood and its progeny apply

when the government fails to turn over evidence that has yet to be developed.

Because the instant case involves the failure to develop evidence, as opposed to

the failure to disclose existing evidence, the bad-faith test in Youngblood is

inapplicable.

Defendant’s right to present a defense was not violated because the police

have no constitutional duty to assist a defendant in developing potentially

24
Justice Cavanagh argues that the defendant does not develop evidence
when he or she takes an independent chemical test, apparently because the
defendant’s blood and the alcohol in the defendant’s blood already exist. The
evidence defendant sought, however, was not his own blood, but the results of a
test measuring the alcohol content in his blood at the time he was arrested. Justice
Cavanagh fails to see that these results simply do not exist, because the test was
never administered.

25

exculpatory evidence. Just as the police have no constitutional duty25 to perform

any chemical tests, Youngblood, supra at 59,26 they have no constitutional duty to

assist the defendant in obtaining an independent chemical test.27 See, e.g., In re

Martin, 58 Cal 2d 509, 512; 374 P2d 801; 24 Cal Rptr 833 (1962) (in holding that

the police are not required to assist a defendant in obtaining a chemical test, the

California Supreme Court explained that “police officers are not required to take

the initiative or even to assist in procuring evidence on behalf of a defendant

which is deemed necessary to his defense”); and People v Finnegan, 85 NY2d

25
Justice Cavanagh quibbles with our use of the phrase “constitutional
duty.” Though we did not think any explanation of this wording would be needed,
we clarify for Justice Cavanagh that by “constitutional duty,” we mean that the
police have a duty to honor the defendant’s constitutional rights. We see nothing
misleading about the phrase “constitutional duty,” which the United States
Supreme Court has used in this context. See, e.g. Youngblood, supra at 59 (“the
police do not have a constitutional duty to perform any particular tests”); Hoffa v
United States, 385 US 293, 310; 87 S Ct 408; 17 L Ed 2d 374 (1966) (“Law
enforcement officers are under no constitutional duty to call a halt to a criminal
investigation . . . .”).
26
In Youngblood, supra at 59, the United States Supreme Court stated that
“the defendant is free to argue to the finder of fact that a breathalyzer test might
have been exculpatory, but the police do not have a constitutional duty to perform
any particular tests.”
27
In attempting to distinguish the Finnegan case, Justice Cavanagh states
that the plain language of MCL 257.625a(6)(d) creates an affirmative statutory
duty on behalf of the police to assist a defendant in obtaining an independent
chemical test. Justice Cavanagh relies on the language in the statute indicating
that a defendant “shall be given a reasonable opportunity” to have a person of the
defendant’s choosing administer the independent chemical test. The issue here,
however, is whether the constitution requires that a defendant have a reasonable
opportunity to obtain an independent chemical test. Because the parties have
conceded that the statute had been violated, we need not address whether the
(continued…)

26

53, 58; 647 NE2d 758; 623 NYS2d 546 (1995) (“law enforcement personnel are

not required to arrange for an independent test or to transport defendant to a place

or person where the test may be performed” because “police have no affirmative

duty to gather or help gather evidence for an accused”). Thus, the police have no

constitutional duty to take affirmative action to transport the defendant from the

place of his or her incarceration to a hospital of his or her choice for the requested

test. State v Choate, 667 SW2d 111, 113 (Tenn Crim App, 1983) (where the

defendant argued that he had a constitutional right to police assistance in

obtaining an independent chemical test whether or not he complied with the

statute requiring him to take a police-administered test, the court held that the

police have no “affirmative [constitutional] duty to make a blood test available to

the defendant by transporting him from the place of his incarceration to a hospital

for the requested test”). Thus, the officer’s actions in the instant case did not

violate defendant’s due process rights because the officer had no constitutional

duty to assist defendant in obtaining an independent chemical test by transporting

defendant to Watervliet Hospital.28

(…continued)

statute creates an affirmative duty on behalf of the police to assist a defendant in

obtaining such a test.

28
Further, although not necessary for our analysis, the officer not only gave
defendant an opportunity for a second chemical test at Lakeland Hospital, he
offered to transport defendant to the hospital. Defendant chose not to avail
himself of the opportunity for transportation to Lakeland Hospital for a second
chemical test independent of the police-administered test.

27

 IV. CONCLUSION

The statutory text does not reflect that the Legislature intended either

dismissal or suppression of the evidence to be the remedy for a violation of MCL

257.625a(6)(d). Accordingly, we overrule Koval and its progeny. Instead, we

hold that a permissive jury instruction may be appropriate when the trial court has

determined that there was a violation of MCL 257.625a(6)(d). When the

Legislature established the right of a defendant to seek an independent chemical

test, it intended to allow that defendant to use the test to rebut evidence produced

by the prosecutor at trial. A jury instruction will give meaning to that right by

placing all relevant information, including the requirements of the statute, before

the fact-finder. Such an instruction in this circumstance is an appropriate function

of the judicial power that will ensure the integrity of the criminal trial and further

the pursuit of the truth. We also hold that defendant’s due process right to present

a defense was not violated.

We reverse the judgment of the Court of Appeals and remand the matter to

the trial court for reinstatement of the charges against defendant. At trial, the

results of the police-administered chemical test shall be admissible, but the trial

court may instruct the jury that the police violated defendant’s statutory right to a

reasonable opportunity for an independent chemical test.

Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

28

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 128368

MARK JOSEPH ANSTEY,

Defendant-Appellee.

WEAVER, J. (concurring in part and dissenting in part).

Defendant herein was arrested for operating a vehicle while intoxicated, a

violation of MCL 257.625. At the arresting officer’s request, defendant agreed to

take a chemical breath test. The prosecutor has conceded that defendant was

denied a reasonable opportunity to have a second, independent chemical test by a

person of his choosing.

Pursuant to this Court’s decision in People v Koval,1 the Court of Appeals

affirmed the trial court’s dismissal of charges against defendant on the basis that

he had been denied his reasonable request for an independent test.

I concur with the result of the majority’s opinion overruling Koval and its

progeny, reversing the Court of Appeals judgment, and remanding to the trial

court to reinstate charges against defendant.

1
371 Mich 453; 124 NW 2d 274 (1963).
 However, I dissent and decline to join that portion of the majority’s opinion

creating a remedy that when a defendant is unreasonably denied the opportunity

for an independent test, the trial court may instruct the jury to that effect. Rather,

now that Koval—with its judicially created extreme remedy of dismissal of drunk

driving cases—has been overruled, I would leave it to the Legislature to consider

whether it wishes to revise MCL 257.625a(6)(d) to supply a remedy for violation

of that subsection. In doing so, the Legislature should consider whether any

constitutional issues exist as it balances the interest of an accused defendant, who

has been provided no remedy for the violation of the statutory right to an

independent chemical test, with the public safety interest in keeping impaired

drivers off the roads. This is a matter of public policy that the Legislature should

decide because it has the ability, unlike this Court in deciding this case, to hold

public hearings and to provide an opportunity for all those holding differing views

and possessing information on the wisest course to share their views and

information with the Legislature.

MCL 257.625a(6)(d) provides that a defendant who takes a police-

administered chemical test “shall be given a reasonable opportunity” to have an

independent test by a person selected by the defendant. However, the Legislature

did not specify that any remedy was available when a defendant is unreasonably

denied an opportunity for an independent test. Because this Court erred in Koval

in supplying the extreme remedy of dismissal for a violation of subsection 6(d),

this Court is correct in deciding to affirmatively overrule Koval.

2

 It is appropriate under Robinson v Detroit,2 to overrule Koval because

Koval was wrongly decided, and defies practical workability, and because

reliance interests will not suffer undue hardship if Koval is overruled, and changes

in the law or facts no longer justify the earlier decision. The 1963 version of the

statute did not provide a remedy, but it had a mandatory requirement that the

defendant be advised of his or her right to take an independent test. Because of

these two factors, and because the defendant had already been convicted, the

Koval Court apparently deemed that it had to supply a remedy and that the only

available remedy was dismissal.

I note that while the Koval decision was rendered in the early 1960s during

an era when society was not as vigilant about curtailing drinking and driving, our

present-day perspective has changed remarkably. Recognizing that our

Legislature has an interest in ensuring public safety by keeping impaired drivers

off the roads, we must look to the language of the statute in order to discern, if

possible, the legislative intent.

In determining such intent in this case, it is apparent that the Legislature

was aware that it had the option of supplying some kind of remedy for a violation

of subsection 6(d) because the Legislature supplied a remedy in another subsection

of MCL 257.625a. Specifically, if a prosecutor fails to comply with subsection 8

of MCL 257.625a, the remedy available to a defendant for violation of that

2
462 Mich 439, 464-465; 613 NW2d 307 (2000).

3

subsection is suppression of the results of the state-administered chemical test.3

Had the Legislature intended a comparable remedy for a violation of subsection

6(d)—or even the more drastic remedy of dismissal—it could have so specified.

Not only has the Legislature declined to provide a remedy for a violation of

subsection 6(d), but in fact, the Legislature specified that “[t]he provisions of

subsection (6) relating to chemical testing do not limit the introduction of any

other admissible evidence . . . .”4

Given the absence of statutory language showing an intent by the

Legislature to specify what remedy, if any, is to be imposed upon denial of this

statutory right to a reasonable opportunity to obtain an independent test, and given

the presence of statutory language showing an intent that a prosecutor can proceed

on other nonchemical evidence, it was improper for this Court in Koval to rewrite

the statute from the bench.

3
MCL 257.625a(8) provides:
If a chemical test described in subsection (6) is administered,
the test results shall be made available to the person charged or the
person's attorney upon written request to the prosecution, with a
copy of the request filed with the court. The prosecution shall
furnish the results at least 2 days before the day of the trial. The
prosecution shall offer the test results as evidence in that trial.
Failure to fully comply with the request bars the admission of the
results into evidence by the prosecution. [Emphasis added.]

4
MCL 257.625a(7) (emphasis added).

4

 Now that Koval—with its judicially created extreme remedy of dismissal of

drunk driving cases—has been overruled, the Legislature should consider whether

it wishes to revise MCL 257.625a(6)(d) to supply a remedy for violation of that

subsection. In doing so, the Legislature should consider whether any

constitutional issues exist as it balances the interest of an accused defendant, who

has been provided no remedy for the violation of the statutory right to an

independent chemical test, with the public safety interest in keeping impaired

drivers off the roads. This is a matter of public policy that the Legislature, not this

Court, should decide because it has the ability, unlike this Court in deciding this

case, to hold public hearings and to provide an opportunity for all those holding

differing views and possessing information on the wisest course to share their

views and information with the Legislature.

Elizabeth A. Weaver

5

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 128368

MARK JOSEPH ANSTEY,

Defendant-Appellee.

CAVANAGH, J. (dissenting).

Today the majority takes its most recent stride in eroding the statutory and

constitutional rights of criminal defendants. Despite the Legislature’s clear intent

to bestow the right at issue, the majority elects to divest this Court of the ability to

redress a violation of the right. Faced with a complaint that a police officer

prohibited defendant from exercising his legislatively sanctioned constitutional

right to an independent chemical test, the majority’s magic wand of an opinion

makes the right disappear. Today’s edict puts Michigan citizens on notice that

when the Legislature grants an explicit right—indeed, one with a constitutional

dimension—but sees fit to leave the remedy for violating that right to a court’s

discretion, the right is really no right at all. The “consolation” the majority

provides is the ability to tell the jury that the right was violated. So drivers be

warned: Although our Legislature decided that you have an indelible right to a

reasonably requested independent chemical test, this Court finds that if you
attempt to exercise that right, the decision whether you are permitted to do so rests

solely in the hands of your jailer. If that person decides, for good reason, bad

reason, or no reason at all, to deprive you of that right, so be it. Thanks to the

majority’s continued plod through the volumes of our law, there are no meaningful

consequences to that decision, so we have now amassed another right not worth

the paper the Legislature printed it on.

The Oz-like curtain behind which the majority hides is its pronouncement

that because the Legislature did not provide a remedy, courts are powerless to

enforce the statute. Rather than rectify the violation, a court can only make

available a nonmandatory jury instruction that tells the jury that the right was

violated, which instruction serves no remedial purpose.1 This is in spite of the

Legislature’s purposeful use of the word “shall” when bestowing the right. A

legislature that purposefully enacts a “mandatory” right while intending at the

same time that it not be enforced would be an odd one indeed. Thus, to the trash

bin goes the tenet that the job of a court is to discern and implement legislative

intent because to hold that no enforcement was intended flies in the face of all

logic. When the Legislature does not specify a particular remedy for violation of a

mandatory right, it is incumbent on this Court to adjudicate a fair and just

resolution in as best accord with legislative intent as possible. The remedy should

1
The majority carefully avoids calling its proposed instruction a “remedy,”
although it claims that a permissive jury instruction “gives meaning” and
“concrete effect” to the right. Ante at 21 n 22, 23.

2

actually, not theoretically, hypothetically, or suppositionally, rectify the violation.

But instead of providing a way to truly remedy the situation of a defendant who

was denied his mandatory right to an independent chemical test, the majority

merely declares this Court powerless, shrouding the unreasonableness of its

decision in the veil of a jury instruction of negligible force.

In direct contradiction of its oft-repeated mantra that no word in a statute

can be changed or rewritten, the majority does indeed rewrite the statute of

concern. MCL 257.625a(6)(d) states that a person who makes a reasonable

request for an independent chemical test “shall” be given a reasonable opportunity

to procure one. Notably, the Legislature did not choose the word “may” or “can”

or “might.” It chose “shall,” with all its consequent mandatory implications. This

Court has repeatedly held that “shall” is not permissive. See, e.g., People v

Francisco, 474 Mich 82, 87; 711 NW2d 44 (2006); Burton v Reed City Hosp

Corp, 471 Mich 745, 752; 691 NW2d 424 (2005); Scarsella v Pollak, 461 Mich

547, 549; 607 NW2d 711 (2000); Oakland Co v Michigan, 456 Mich 144, 154;

566 NW2d 616 (1997) (opinion by Kelly, J.). To hold that there is no meaningful

remedy for violating a mandatory right directly contravenes the unambiguous rule

of construction that no word in a statute can be rendered nugatory.

Preventing a court from enforcing this mandatory statute by truly

remedying a violation of it not only rewrites the statute but does immeasurable

violence to legislative intent. By failing to permit a meaningful remedy for a

violation of the right the statute bestows, the majority changes “[you] shall be

3

given a reasonable opportunity” to “it does not matter if you get an opportunity,

but you can ask that the jury be told if you did not.” In doing so, the majority fully

emasculates the Legislature’s clear intent to create a mandatory requirement, for a

mandatory right with no meaningful remedy for its violation is no right at all.

The majority bases its reasoning in part on the fact that in § 625a(8) of the

statute, the Legislature specified a remedy for violating that subsection. Ante at 6.

Had the Legislature intended a remedy for § 625a(6), the majority reasons, then it

would have provided one like it did in § 625a(8). I am not distracted, as is the

majority, by that path of least resistance, for statutory analysis is neither one-

dimensional nor necessarily simplistic. When comparison to another statute does

not answer the question whether a remedy was intended, this Court should not

simply close the books and end the inquiry.2 Rather, it is incumbent on us to use

the additional rules and tools available to us until we discern the legislative intent.

And those additional mechanisms, if used, lead to this conclusion: The

Legislature is satisfied with the remedy of dismissing the charges when a

defendant makes a reasonable request for an independent chemical and is denied

that right.

The majority ostensibly recognizes that discerning legislative intent is the

primary goal of statutory construction. Ante at 5. But while the majority duly

2
The majority does indeed close the books on its search for legislative
intent after finding no explicit remedy in the statute, despite that it continues on to
craft its “nonremedy remedy” of a jury instruction. See ante at 16 n 17.

4

notes that the Legislature did not specify a remedy for violating the statute, it

refuses to also consider that the Legislature has declined to repudiate the

longstanding remedy of dismissal or specify some other remedy in the 12 times

over 43 years that it has amended the statute since our decision in People v Koval,

371 Mich 453; 124 NW2d 274 (1963). In Koval, of course, we held that dismissal

was the proper remedy for violating § 625a(6)(d).3 It bears repeating that the

Legislature is presumed to know of our case law. Gordon Sel-Way, Inc v Spence

Bros, Inc, 438 Mich 488, 505-506; 475 NW2d 704 (1991). Nonetheless, 12 times

over, it has deliberately chosen to leave this Court’s holding in place, while

making other, at times substantial, changes to the law. Thus, it is perfectly logical,

indeed, incumbent on us, to conclude that the Legislature has not sensed any

urgency either in invalidating the Koval decision or incorporating the remedy we

found prudent in Koval because its intent is being carried out through that

precedent. Because the Legislature has not acted to invalidate Koval, despite

having 12 opportunities over 43 years to do so, we must presume it is satisfied

with what this Court did in that case.

3
The majority mistakenly asserts that the Koval Court incorrectly found a
remedy despite that “the text of the statute makes clear that the Legislature did not
intend the remedy of dismissal to follow from a violation” of the statute. Ante at
10. But considering that the text of the statute conveys a mandatory right, this
Court found that dismissal was appropriate. Although the majority tries
desperately to do so, the mandatory nature of the right simply cannot be separated
from the determination of what remedy exists for violating the right.

5

 In stark contrast to this majority, our United States Supreme Court

recognizes that the reenactment doctrine is a legitimate tool to assist in

determining legislative intent. Central Bank of Denver, NA v First Interstate Bank

of Denver, NA, 511 US 164, 185; 114 S Ct 1439; 128 L Ed 2d 119 (1994) (“When

Congress reenacts statutory language that has been given a consistent judicial

construction, we often adhere to that construction in interpreting the reenacted

statutory language. See, e.g., Keene Corp v. United States, 508 U.S. 200, 212-213

[113 S Ct 2035; 124 L Ed 2d 118] [1993]; Pierce v. Underwood, 487 U.S. 552,

567 [108 S Ct 2541; 101 L Ed 2d 490] [1988]; Lorillard v. Pons, 434 U.S. 575,

580-581 [98 S Ct 866; 55 L Ed 2d 40] [1978].”). See also United States v

Rutherford, 442 US 544, 554, 554 n 10; 99 S Ct 2470; 61 L Ed 2d 68 (1979). The

majority’s choice to ignore, and alternatively misapply, the reenactment doctrine

plainly illustrates that it is not interested in truly discerning legislative intent but is

satisfied with reaching a decision using less than all available mechanisms.

Unjustifiably, the majority deprives a defendant of an ability to have a violation of

his or her rights rectified merely because it has a personal aversion to the widely

utilized reenactment rule. But applying this perfectly applicable tool of statutory

construction not only provides needed interpretive assistance, but also assists in

reaching a conclusion that is indubitably more logical than the one reached by the

majority. Put another way, the majority’s refusal to account for the Legislature’s

decision not to invalidate Koval through its multiple reenactments results in a

holding that a defendant given a mandatory right has no meaningful remedy for its

6

violation. But taking into account the Legislature’s choice not to change the result

in Koval in its 12 reenactments of the statute since that 1963 decision results in the

inescapably more sensible conclusion that a remedy does indeed exist, and that the

remedy is that which this Court set forth in Koval. Misguided by its view that the

Legislature would be so inefficient so as to fail to correct an erroneous

interpretation of the law, this majority chooses to disregard rules of statutory

construction to deprive drivers of a mandatory right.

In addition, the majority fundamentally misunderstands the workings of the

reenactment doctrine by misapplying its statements in Neal v Wilkes, 470 Mich

661, 668 n 11; 685 NW2d 648 (2004). The majority claims that the reenactment

doctrine is inapplicable here because “the amendments to MCL 257.625a(6)(d) do

not clearly demonstrate through words the Legislature’s intention to adopt or

repudiate Koval’s interpretation of the statute.” Ante at 8 n 7. The majority

misses the point: The Legislature’s failure to repudiate Koval in any of the 12

amendments to the statute is the clear indication that it accepted Koval. If the

majority means that there must be some overt wording to that effect, then the

majority renders the reenactment doctrine completely useless because obviously

the Legislature’s intent would then be clear from its words, and no determination

whether it meant to adopt or repudiate the case would be necessary.

Along the same lines, the majority states that I disregard “the rule of

statutory construction that courts cannot assume that the Legislature inadvertently

omitted language from one portion of the statute that it placed in another portion

7

of the statute.” Ante at 8 n 7 (emphasis added). First, I do not believe that the

Legislature “inadvertently” omitted anything. Rather, in accord with the widely

used reenactment doctrine, I conclude that the Legislature very advertently

accepted the remedy we found necessary in Koval. Moreover, I choose not to rely

solely on the rule of statutory construction the majority cites at the expense of

ignoring other applicable rules that can aid in the analysis. The majority’s

selective use of rules of construction is transparent.

Further, the majority cites Neal for the proposition that the reenactment

doctrine is a useful tool of statutory interpretation when statutory language is

ambiguous. Ante at 8 n 7. The majority must believe that the language of the

statute at issue here is ambiguous because it sanctions a jury instruction despite

recognizing that none is clearly permitted in the language of the statute. I, too,

believe that the remedy to be afforded a defendant who is divested of his

mandatory right was initially left ambiguous by the Legislature. The difference in

the approach taken by the majority and the dissent is that the majority ignores an

applicable rule of construction that would lead to the conclusion that dismissal is

the proper remedy, while I would employ it. Clearly, the majority’s attempt to

circumvent the reenactment doctrine is not soundly based.

The majority also unconvincingly attempts to disclaim that an important

consideration in this case is the mandatory nature of the right to an independent

chemical test. See ante at 8 n 7. I fail to see how we can determine what remedy

best alleviates a violation of this right without first determining the level of

8

entitlement to the right. For instance, if the police had discretionary authority to

honor a request for an independent chemical test (and if there were no

constitutional ramifications of a denial of that right), then it is by no means certain

that the proper remedy would be dismissal. But the fact that the Legislature made

this right mandatory weighs, or should weigh, heavily on the analysis.

The majority also asserts a correlation between this case and People v

Sobczak-Obetts, 463 Mich 687; 625 NW2d 764 (2001), relying on that case to

avoid finding an available remedy for the current defendant. In Sobczak-Obetts,

the police violated MCL 780.654 and 780.655 by failing to produce an affidavit

with the otherwise valid warrant used to search the defendant’s home. Notably,

the defendant never argued that she was deprived of a constitutional right. See

Sobczak-Obetts, supra at 697 n 9. In the Court of Appeals, the statutory

requirement of producing the affidavit was characterized as “‘more of a ministerial

duty than a right’” and “‘only barely relat[ing] to the substantive right the

Legislature is seeking to protect.’” Id. at 693, quoting 238 Mich App 495, 503-

504 (Hoekstra, J.). The majority agreed with that description, elaborating that the

statutory requirement is a “procedural requirement[] that [is] to be followed by the

police during and after the execution of an otherwise facially valid search

warrant.” Sobczak-Obetts, supra at 707-708 (emphasis in original). The

requirement of producing the affidavit, in the majority’s view, was “ministerial,”

id. at 710, “administrative,” id., and “technical,” id. at 712. Thus, because the

majority found that there was no legislative support for suppressing the fruit of a

9

search when the police had committed a violation that was “technical,” did not

diminish the probable cause for the search, and did not violate the defendant’s

constitutional rights, the majority declined to provide a remedy.

Despite whether one agrees with the majority’s analysis in Sobczak-Obetts,

any reliance on that case is drastically misplaced. The right bestowed by MCL

257.625a(6)(d) is hardly “technical,” “ministerial,” or “procedural.” Rather,

exercising the right to an independent chemical test under § 625a(6)(d) to gather

physical bodily evidence is the only way a physically restrained drunk driving

suspect can obtain such evidence. Moreover, and just as important, that

independent test result is the only evidence available to a defendant to refute

evidence the police gather by taking their own chemical tests. Equally important,

the evidence is perishable, so once the extremely short window of time in which a

defendant can obtain the evidence elapses, that evidence is forever unavailable.

The result is that the defendant is left with absolutely no meaningful way to refute

the prosecutor’s chemical evidence against him in a criminal trial. See, e.g., State

v Minkoff, 308 Mont 248, 253-255; 42 P3d 223 (2002), discussed later in this

opinion.

The majority’s assertion that, in lieu of using the results of the independent

chemical test a defendant was deprived of obtaining, the defendant can simply

“adduce nonchemical evidence, such as the testimony of a toxicology expert, who

can give an expert opinion on the defendant’s body alcohol level based on the

number of drinks the defendant consumed over a course of time,” ante at 18 n 20,

10

is simply unpersuasive. Not only does that idea ignore the uncorrelative character

of the different types of evidence, but the notion that a person’s body alcohol level

can be prognosticated on other bases is similar to the “deceptively simple process”

of retrograde extrapolation, see Bostic, Alcohol-related offenses: Retrograde

extrapolation after Wager, 79 Mich B J 668 (2000), and presents the same

problems. The discussion in J. Nicholas Bostic’s article illuminates the significant

debate within the scientific community over the reliability of prognosticated

evidence. Id. at 669. This is because the “variability in the human response to

alcohol (ethanol)” is “exacerbated by the difficulties in measuring the effects of

alcohol on the human body and of human enzymes on alcohol.” While a lengthy

recapitulation of the article is unnecessary here, the complexities involved in

attempting to divine a person’s body alcohol level through nonchemical means

should not be underestimated. Among the factors bearing on the analysis are the

timing of the onset of the postabsorptive stage, elimination rates, the effect of food

on the postabsorptive onset, frequency of alcohol use, race, gender, interindividual

differences, intraindividual differences, pathological conditions, and acid-blocking

drugs.

As the article’s citation of various studies illustrates, for any expert or study

that one side can offer to support a particular premise, the other side is likely to be

able to offer an expert or study that directly refutes that premise. Moreover, as the

article also illustrates, while there may be a relatively consistent range of accuracy

11

in extrapolation, it is, nonetheless, a range.4 But when a defendant is trying to

prove that his body alcohol level did not exceed a very precise statutorily

proscribed level, namely, 0.08 grams of alcohol per 100 milliliters of blood, per

210 liters of breath, or per 67 milliliters of urine, it is of little help that an expert

might be able to demonstrate a range into which the defendant’s body alcohol

level likely fell. Thus, it is hardly consoling for the majority to pronounce that a

defendant can simply offer expert testimony on his body alcohol level “based on

the number of drinks the defendant consumed” or that “[t]he instruction gives the

defendant an adequate opportunity to defend himself by arguing that the police-

administered test was inaccurate and that an independent test would have

produced a different result.” Ante at 18 n 20, 20 n 21. Despite what nonchemical

4
The same is true with respect to the majority’s citation of State v Vliet, 95
Hawaii 94; 19 P3d 42 (2001). See ante at 18 n 20. Despite whether that court
found the “Widmark formula” admissible, and despite whether the formula can be
said to be widely reliable, this inequitable fact remains unchanged: a defendant is
left to rebut chemical evidence with nonchemical extrapolation evidence despite
the fact that he was entitled to obtain chemical evidence and was denied his right
by the police.
By claiming that that situation is remedied because nonchemical evidence
of a body alcohol range can raise a reasonable doubt in a defendant’s favor, the
majority does not seem to grasp the unbalanced position into which it places a
defendant. Nothing a defendant produces in this regard will go unrebutted by the
prosecutor’s own witnesses. So to edge out any reasonable doubt created by a
defense expert who can testify to a “range” into which the defendant’s body
alcohol level may have fallen, a prosecutor will be armed with eyewitness
observation evidence, field sobriety test results, a rebuttal expert for any
nonchemical evidence the defendant produces, and, critically, the indisputable
results of a chemical test. Undeniably, the scales of justice are tilted heavily in the
prosecutor’s favor.

12

evidence the defendant can find to produce, the prosecutor will hold the clear

advantage in that not only can he rebut any nonchemical evidence with expert

testimony, but he alone possesses the results of a chemical test to which the

defendant has no rebuttal at all.

Further, despite Justice Corrigan’s interpretation of the principles she cites

from three writings of her late husband and a foreword by Justice Markman, see

ante at 19-20, I fail to see how the truth-seeking process is enhanced or furthered

by not only denying a defendant’s mandatory right to gather evidence in his

defense, but also allowing the prosecutor to present evidence that the state has

made impossible for the defendant to rebut. I do not believe this is the type of

“truth-seeking process” envisioned by either the framers of our constitutions or by

commentators on the criminal justice system. In fact, a passage quoted by Justice

Corrigan belies her assertions that a jury instruction is sufficient to protect a

defendant’s right to a fair trial when the right denied defendant deprives him of

“‘an adequate opportunity to defend against the charges.’” See ante at 20, quoting

Grano, Implementing the objectives of procedural reform: The proposed

Michigan Rules of Criminal Procedure–Part I, 32 Wayne L R 1007, 1018 (1986).

Professor Joseph D. Grano was completely correct when he wrote the words

Justice Corrigan quotes:

“[T]he primary objective of criminal procedure is to facilitate
the ascertainment of truth. To some extent, therefore, fairness must
encompass this concern. Accordingly, rules are unfair when they do
not provide either party an adequate opportunity to develop and
present his case. The special concern with fairness for the

13

 defendant, however, stems from the special abhorrence of erroneous
conviction. Thus, basic agreement exists that a rule is unfair if it
denies the defendant an adequate opportunity to defend against the
charges.” [Ante at 20, quoting Grano, supra at 1018 (emphasis
added).]

It is for the reasons Professor Grano outlined that the majority is misguided

in asserting that dismissal is an inappropriate remedy because “the truth will never

be discovered.” See ante at 20 n 21. Simply, denying a defendant’s right to

obtain evidence5 in his defense also prevents the truth from ever being discovered

and exposes a defendant to the possibility of being wrongfully convicted, despite

the “special concern for fairness” and “special abhorrence of erroneous

conviction” identified by Professor Grano. And therein lies the fundamental

difference of approach. While the majority favors rewarding the deprivation of

the right to obtain evidence by proceeding with trial and exposing the defendant to

wrongful conviction to further what it perceives as the “truth-seeking process,” I

favor a meaningful remedy that encourages the police to act according to a

5
Oddly, the majority concludes that informing the jury that a defendant was
denied his right to an independent test “plac[es] all the facts before the fact-
finder,” provides “more, rather than less, information,” “communicate[s] an
accurate account of what transpired,” and “gives the jury all of the available
relevant information.” See ante at 20 n 21, 21. The majority also asserts that the
instruction informs the jury of “all the pertinent information, including what has
been denied to them [sic].” Ante at 21. These propositions are simply incorrect.
The “pertinent information” that is not placed before the jury is the results of an
independent chemical test. The jury is denied this information and, thus, denied
its right to all the facts. The jury thus receives less information than that to which
it was entitled and is left with an incomplete account of transpired events. The
majority’s insistence that a permissive jury instruction furthers the truth-seeking
process is simply backward logic.

14

mandatory statute,6 which in turn protects a defendant’s right to a fair trial. This,

in my view, is the more constitutionally sound fostering of the truth-seeking

process.

It can be no clearer that a defendant’s Sixth Amendment right to present a

full defense is implicated when he is deprived of his codified right to an

independent chemical test.7 While the right to the test has been codified, the

violation of the right is an unconstitutional deprivation of a defendant’s right to a

fair trial. Indeed, the intent behind § 625a(6)(d) further demonstrates that the

6
The majority’s claim that the permissive jury instruction will “accord
meaning to the right” and “deter police officers from violating that right” is
ridiculous. See ante at 13. First, nothing about alerting the jury that a person was
deprived of an ability to obtain an independent chemical test “accords meaning” to
the right embodied in the statute. Simply, a jury instruction is “too little, too late.”
Second, the majority’s rule of law actually encourages police officers to decline a
person’s request for an independent test because not only are there are no
meaningful negative consequences to that decision, but the police are put in a
superior position because they will hold the trump card of indisputable chemical
evidence. In this way, police officers are indeed “permit[ted] . . . to ignore a
defendant’s mandatory statutory right . . . .” See ante at 22.
Not surprisingly, the majority disagrees with this assessment, but again, the
majority’s simplistic and idealistic view fails to account for the real-world
practicalities about the way in which these scenarios will play out. See n 4 of this
opinion. Moreover, because the defendant was denied his constitutional right to
an independent test, speculation regarding whether the test would have been
favorable to him is unhelpful. The very point is that the jury will never know
because the defendant was denied his constitutional right to obtain the evidence.
7
I address this argument only because the trial court expressed in its
opinion its belief that the right at issue was constitutional in nature. The trial court
found it unnecessary to base its holding on constitutional principles because it
found that the remedy of dismissal was clearly called for. However, it clearly
considered the statutory right merely a codification of a due process right. Thus, I
find that it would be judicially inefficient to not address this issue.

15

Legislature never meant to afford one party scientific evidence while denying the

other party an ability to independently obtain the same, thus further rebutting the

majority’s assertion, ante at 20 n 21, that a jury instruction sufficiently assists the

“truth-seeking process”:

The intent of the Legislature in enacting MCL 257.625a(5);
MSA 9.2325(1)(5) was to allow the production and preservation of
chemical evidence in an orderly manner. Broadwell v Secretary of
State, 158 Mich App 681, 686; 405 NW2d 120 (1987). The
petitioner in Broadwell argued that he was entitled to have a person
of his choosing administer the test without first being subjected to a
chemical test by the police officer. However, this Court found that
such a construction of the statute would place the only scientific
evidence of chemical impairment within the petitioner’s sole
disposal, contrary to the legislative intent of the statute. Id. In
People v Koval, 371 Mich 453, 458; 124 NW2d 274 (1963), our
Supreme Court found that the then existing statute, which does not
significantly differ from the current one, was enacted for the
protection and benefit of motorists charged with driving while under
the influence of intoxicating liquor. Thus, it may be said that the
Legislature intended that the scientific evidence shall not be at the
sole disposal of either party, and it ensured this result by allowing
police to administer one test and allowing the accused to choose an
independent person to administer a second chemical test. [People v
Dicks, 190 Mich App 694, 698-699; 476 NW2d 500 (1991)
(emphasis added).]
Further, the majority’s centering of its analysis on its characterization that

the evidence defendant was deprived, namely, an independent chemical test of his

body alcohol level, of was evidence that had not yet been “developed” is simply a

game of semantics. See ante at 25. For despite the majority’s strenuous attempt

to minimize the importance of the right or the subsequent significance of the

evidence, the fact remains that defendant had a due process right to obtain the

evidence, whether that entailed “creating” it, “developing” it, or any other way of

16

getting it, however stated. Simply, defendant sought to exercise his mandatory

right to procure independent chemical testing, and, thus, documentation, of his

already-existing body alcohol level at the time he was taken into custody. And he

sought to exercise this right because the Legislature penned a statute that grants

the right to do so. When the majority’s fallacy of logic is exposed, its

constitutional analysis falls apart.

The correct conclusion, and one that the trial court reached, is that the right

at issue, though codified through statute, implicates a defendant’s constitutional

right when violated. Simply, refusing the defendant an opportunity for an

independent chemical test “‘is to deny him the only opportunity he has to defend

himself against the charge.’” People v Dawson, 184 Cal App 2d Supp 881, 882; 7

Cal Rptr 384 (Cal Super App Dep’t, 1960), quoting In re Newbern, 175 Cal App

2d 862, 866; 1 Cal Rptr 80 (1959). “[T]he accused has an absolute right to secure

witnesses and obtain additional evidence to counteract the evidence obtained by

the government, to establish a defense and to seek an acquittal. To hold otherwise

is to return to the rack and the stake.” State v Myers, 88 NM 16, 23; 536 P2d 280

(NM App, 1975) (Sutin, J., dissenting) (emphasis omitted).

Attempting to bolster its conclusions, the majority selectively extracts the

following statement from Arizona v Youngblood, 488 US 51, 59; 109 S Ct 333;

102 L Ed 2d 281 (1988): “‘[T]he defendant is free to argue to the finder of fact

that a breathalyzer test might have been exculpatory, but the police do not have a

17

constitutional duty to perform any particular tests.’” Ante at 26 n 26.8 One need

only view the excised statement in the context of the material from which it was

extracted to reject the majority’s curious reliance:

The Arizona Court of Appeals also referred somewhat
obliquely to the State’s “inability to quantitatively test” certain
semen samples with the newer P-30 test. 153 Ariz., at 54, 734 P. 2d,
at 596. If the court meant by this statement that the Due Process
Clause is violated when the police fail to use a particular
investigatory tool, we strongly disagree. The situation here is no
different than a prosecution for drunken driving that rests on police
observation alone; the defendant is free to argue to the finder of fact
that a breathalyzer test might have been exculpatory, but the police
do not have a constitutional duty to perform any particular tests.
[Youngblood, supra at 58-59.]

As the reader can see, Youngblood did not involve body alcohol level

testing and it did not involve a statutory right to testing. Clearly, the Youngblood

Court was in no way commenting on the due process rights that arise when a

defendant is denied a mandatory right to obtain independent testing of his body

alcohol level.

In another citation that is inaccurate at best, the majority states that in In re

Martin, 58 Cal 2d 509; 374 P2d 801; 24 Cal Rptr 833 (1962), the court held “that

the police are not required to assist a defendant in obtaining a chemical test,” and

8
In my opinion, to speak in terms of a police officer’s “constitutional duty”
obfuscates the issue and detracts from the true question involved. Thus, I believe
the question is more accurately addressed in terms of whether a defendant’s
constitutional rights are violated when the police fail to comply with their
statutory duty to permit a defendant an opportunity to obtain an independent
chemical test. While not dispositive of the analysis, those terms avoid
overshadowing that it is indeed a defendant’s constitutional right under scrutiny.

18

that “‘police officers are not required to take the initiative or even to assist in

procuring evidence on behalf of a defendant which is deemed necessary to his

defense.’” Ante at 26, quoting Martin, supra at 512. What the majority omits to

tell the reader is that there was no statute that mandated the police to allow a

person an opportunity for independent chemical testing. What the majority also

omits to mention is that the defendant in Martin “was released within minutes

after his ‘booking’ at the police station.” Martin, supra at 512. Because of his

fast release, the court concluded that “[n]o meritorious claim can be made that [the

defendant] could not, at that time, have obtained a timely sampling if

unhampered.” Id.

Similarly, the majority mistakenly relies on State v Choate, 667 SW2d 111,

113 (Tenn Crim App, 1983), for the proposition that “the police have no

constitutional duty to take affirmative action to transport the defendant from the

place of his or her incarceration to a hospital of his or her choice for the requested

test.” Ante at 27. Important, but ignored by the majority, is that the state statute at

issue in that case required the suspect to submit to a police-administered chemical

test, and the defendant had refused to take that test. Choate, supra at 111-112.

The court could not find a due process violation, reasoning as follows:

Since he refused to take the breathalyzer test, the police took
no affirmative steps to assist the defendant in obtaining a blood
sample. However, the defendant was not hampered or prevented by
the police from obtaining a blood test, and he made no effort himself
to arrange for a blood test although he had access to a telephone and
was accompanied by a friend to the police station. [Id. at 112
(emphasis added).]

19

 The same misplaced reliance is seen in the majority’s citation of People v

Finnegan, 85 NY2d 53, 58; 623 NYS2d 546; 647 NE2d 758 (1995). In Finnegan,

the state statute allowed for an independent chemical test, but put no obligation on

the police to assist suspects with obtaining the test. The statute stated: “Right to

additional test. The person tested shall be permitted to choose a physician to

administer a chemical test in addition to the one administered at the direction of

the police officer.” Veh & Traf Law 1194(4)(b). To the contrary, our statute

states, “A person who takes a chemical test administered at a peace officer’s

request as provided in this section shall be given a reasonable opportunity to have

a person of his or her own choosing administer 1 of the chemical tests described in

this subsection within a reasonable time after his or her detention.” MCL

257.625a(6)(d). Thus, by its plain words, the statute requires some affirmative

action on the part of the police. For the majority to rely on Finnegan to excuse the

police officer’s violation of defendant’s right in this case is simply misguided.

What the majority is actually asserting is that our statute places no duty on the

police to assist a person who the police holds in custody by honoring the person’s

reasonable request to obtain an independent chemical test. Such an assertion

rewrites the statute of concern.

As is evident by the above, the majority takes a painfully circuitous journey

to reach what is ultimately a conclusion that there is no meaning to the right

codified in § 625a(6)(d), and, thus, no purpose to the statute at all. The majority

pronounces that there is no available remedy when a statute providing a mandatory

20

right is violated and that the police have no “constitutional duty,” ante at 25-27, to

follow the statute. Moreover, in deciding that defendant was not deprived of his

constitutional right to an independent chemical test, the majority engages in a

pretense. It concludes that the police were not obligated to assist defendant with

obtaining an independent chemical test. This is simply incorrect and illuminates

that the majority again fundamentally misunderstands the crux of the right at issue.

Minkoff provides a thorough and well-reasoned discussion regarding the

due process implications of interfering with a defendant’s right to obtain an

independent test. In Minkoff, the defendant, rather than requesting a test, asked the

police officer for the officer’s advice regarding whether he should obtain an

independent test. Id. at 249. The officer told the defendant that a blood test

“‘comes out with the exact amount and it’s going to be higher than what the breath

test is.’” Id. Accordingly, the defendant “did not request an independent blood

test.” Id. at 250. Deciding whether the defendant’s due process argument that the

officer “frustrated” his right to obtain an independent test had merit, the court

provided the following fundamental principles:

It is undisputed that a person accused of a criminal offense
has a due process right to obtain existing exculpatory evidence. See
State v. Swanson (1986), 222 Mont. 357, 360, 722 P.2d 1155, 1157.
It also is undisputed that, when the charged offense is DUI, the
accused has a right to obtain a test of the amount of alcohol in his or
her blood independent of the test offered by the arresting officer,
without regard to whether the accused has taken or rejected the
offered test. Swanson, 222 Mont. at 360-61, 722 P.2d at 1157.
Finally, it is undisputed that, while a law enforcement officer has no
duty to affirmatively assist a person accused of DUI in obtaining an
independent blood test, the officer cannot frustrate or impede the

21

 person’s efforts to do so. See Swanson, 222 Mont. at 361, 722 P.2d
at 1157-58. Moreover, we have held that the accused must be
informed of his or her right to independent testing and that failure to
so advise is a due process violation. State v. Strand (1997), 286
Mont. 122, 127, 951 P.2d 552, 555.
In the present case, the District Court relied on [State v]
Sidmore [286 Mont 357; 951 P2d 558 (1997)] in denying Minkoff’s
motion to dismiss. There, we clarified and, in fact, limited “the
Swanson rule” that a DUI accused has a due process right to an
independent blood test. We held that two criteria must be
established to support an allegation of denial of due process rights
with regard to the right to an independent test: (1) the accused must
timely request the independent test, and (2) the officer must
unreasonably impede the right to the test. Sidmore, 286 Mont. at
234-35, 951 P.2d at 568-69. Here, Minkoff did not request the
independent test and, therefore, on the face of it, the District Court
did not err in concluding that the Sidmore criteria had not been met.
[Id. at 250-251.]
The court then considered the defendant’s arguments that the officer

unreasonably impeded his opportunity to obtain an independent test, and

concluded that the officer did indeed do so:

We have held that, while police have no duty to assist an
accused in obtaining independent evidence of sobriety, “they cannot
frustrate such an effort through either affirmative acts or their rules
and regulations.” Swanson, 222 Mont. at 361-62, 722 P.2d at 1158
(see also § 61-8-405(2), MCA, “The peace officer may not
unreasonably impede the person’s right to obtain an independent
blood test”). Here, the officer’s repeated statements that the blood
test would show a higher blood alcohol level, albeit well-intentioned,
were affirmative acts which would frustrate, if not obliterate, the
intention of any rational arrestee to obtain an independent blood test.
Rare, indeed, would be the person who would persist in asking for
an independent blood test after being advised—twice—that the
amount of alcohol in the blood test result would show as higher than
the amount in the offered breath test. We conclude that the officer’s
advice frustrated and unreasonably impeded Minkoff’s due process
right to the independent blood test. [Id. at 252.]

22

 Finally, on the basis of the severely uneven footing on which the

deprivation of the opportunity to obtain an independent chemical test placed the

defendant, the court overruled its prior case law that held that suppression of the

evidence was a sufficient remedy and concluded that the only constitutionally

sufficient remedy was dismissal of the charges. See id. at 253-255.

No case cited in the majority’s labored opinion either considered or

addressed whether a person’s due process rights are violated when that person

submits to a required police-administered chemical test but is nonetheless denied a

reasonable request for a statutorily required independent chemical test. But there

is no shortage of states in which the deprivation of the right to an independent

chemical test has been found to (1) be unconstitutional and (2) require dismissal of

the charges. See Anno: Drunk driving: Motorist’s right to private sobriety test,

45 ALR4th 11. In Georgia, the court of appeals questioned the use, without

enforcement, of a rule requiring a police officer to grant a reasonable request for

an independent chemical test: “But of what value is that right if the accused is in

custody of law enforcement officials who either refuse or fail to allow him to

exercise the right?” Puett v State, 147 Ga App 300, 301; 248 SE2d 560 (1978).

An Arizona court, faced with a prosecutor’s argument that the defendant had no

right to an independent test unless he first took a police-initiated test, explained:

If the [prosecutor’s] contention was correct, the logical
conclusion would be that the police could affirmatively prohibit
every driver who refused a breathalyzer test from obtaining
independent evidence of his sobriety, in essence suppressing
evidence favorable to the defendant. Such a result would be

23

 violative of due process of law. [Smith v Cada, 114 Ariz 510, 512;
562 P2d 390 (Ariz App, 1977) (staying the prosecution on charges
related to intoxicated driving).]
Further, in Provo City v Werner, 810 P2d 469 (Utah App, 1991), the court

highlighted the due process concerns inherent in a defendant’s right to an

independent chemical test. That court stated:

Similarly, all that is required to provide due process is an
opportunity to obtain an independent test. “The purpose of due
process is to prevent fundamental unfairness, and one of its essential
elements is the opportunity to defend.” State v. Snipes, 478 S.W.2d
299, 303 (Mo.), cert. denied, 409 U.S. 979, 93 S.Ct. 332, 34 L.Ed.2d
242 (1972). “The issue is whether the defendant was afforded a
reasonable opportunity to obtain an independent examination; it is
not necessary that such an examination in fact be conducted.”
Commonwealth v. Alano, 388 Mass. 871, 448 N.E.2d 1122, 1127
(1983). See also Bilbrey v. State, 531 So.2d 27, 30 (Ala. Ct. App.
1987) (defendant must prove by clear and convincing evidence that
the conduct of the police was unreasonable in order to establish a
due process violation). [Id. at 472 (emphasis added).]
Again, by its conclusion that the police did all they were required to do and

had no further duty, the majority has changed the language of the statute and

rewritten an otherwise plainly worded requirement to eliminate any duty of the

police to actually honor the reasonable request of a person attempting to obtain

independent chemical evidence. See ante at 26 n 27.

If it is to be given any meaning at all, the statute clearly requires the police

to assist in some way when a person attempts to exercise his right to obtain an

independent chemical test. Here, of course, the police outright refused to take

defendant where he asked to go, a decision that the prosecutor in this case has

24

agreed was unjustifiable. Defendant’s due process right to obtain the test was

clearly violated.

Further, not punishing a violation of the statute with the strict remedy of

dismissal and allowing the prosecution to go forward with the charges will enable

a completely one-sided presentation of the evidence, even if the results of the

police-initiated test are suppressed. By disallowing an independent chemical test,

the police benefit from a win-win situation. Without scientific evidence, the

prosecutor can easily persuade a jury with the police officer’s observation

evidence. A defendant can counter that testimony with absolutely nothing but his

word.

As a Tennessee court succinctly explained, “We do not believe that simply

suppressing the State’s blood alcohol test is a sufficient safeguard of the

Defendant’s right to be able to gather and preserve evidence in his defense. This

evidence, if favorable to the Defendant, could easily have secured his acquittal.”

State v Livesay, 941 SW2d 63, 66 (Tenn Crim App, 1996). And in Washington,

the appellate court likewise rejected an argument for suppression of the results of

the police-administered test as an adequate remedy. That court’s reasoning bears

repeating:

The State contends the proper remedy for violation of Mr.
McNichols’ right to obtain an independent blood test is suppression
of the State’s breath test results. It argues the purpose of the
independent test is to contest the accuracy of the State’s breath test;
therefore, if a defendant is unfairly deprived of an opportunity to
challenge the State’s test results, denying use of those results levels

25

 the playing field and leaves the defendant free to contest any other
evidence of intoxication introduced by the State.
We recognize dismissal is an extraordinary remedy, which is
unwarranted when suppression of evidence will eliminate any
prejudice caused by governmental misconduct. . . . Suppression is
inadequate in the present case.
In a DWI case the defendant’s condition at the time of his
arrest is critical to his defense. To defend against the charge against
him, Mr. McNichols would have to present evidence that he was not
under the influence of intoxicating liquor at the time of his arrest.
That is true regardless whether the State introduces BAC test results
or other evidence of intoxication. The State’s interference with Mr.
McNichols’ right to obtain an independent alcohol concentration test
foreclosed a fair trial by forever depriving him of material evidence
which could potentially have supported a claim that he was innocent.
Suppression of the State’s BAC test results would not eliminate the
prejudice because a favorable blood test is reliable evidence of
nonintoxication that could be used to defend against other proof of
intoxication. Because the error cannot be remedied by a new trial,
dismissal is the appropriate remedy. [State v McNichols, 76 Wash
App 283, 289-291; 884 P2d 620 (1994) (citations omitted).][9]
Finally, in Minkoff the court aptly explained why no remedy other than

dismissal would rectify the constitutional violation:

In Strand, the issue of dismissal, as urged by the defendant,
versus suppression, as argued by the state, was squarely before us.
As discussed above, we opted for suppression and, in doing so,
distinguished Swanson on the facts regarding whether the state’s
offered breath test had been taken or refused. In discussing the
appropriate remedy in Strand, however, we made several statements
on which we did not follow through. In that regard, while we relied
on a Washington Supreme Court case for the proposition that the

9
While the Washington Supreme Court overturned this case on the basis
that jail personnel did not interfere with the defendant’s right to get an
independent blood test, the Supreme Court agreed with the Court of Appeals that
the right was a due process right. State v McNichols, 128 Wash 2d 242; 906 P2d
329 (1995).

26

 state cannot be permitted to use scientific evidence of intoxication
which the defendant is unable to rebut because he was not apprised
of his right to independent testing, we also stated that, while
independent blood test results have value as rebuttal-type evidence
to the state’s evidence, such results also “have independent value as
compelling scientific evidence, regardless of the evidence introduced
by the State.” Strand, 286 Mont. at 128, 951 P.2d at 555 (citation
omitted). We discussed the possibility that a defendant might elect
not to challenge potentially intoxication-related observations by the
officer or field sobriety test results, but might produce—if given the
opportunity—a scientific blood test conclusively showing a blood
alcohol concentration below the legal limit. Strand, 286 Mont. at
128, 951 P.2d at 555-56. Had we followed through on these
statements, rather than limiting our focus to the question of “like
evidence,” dismissal would have been the appropriate remedy.
Here, the State admitted Minkoff’s .167 blood alcohol content
as evidence during the jury trial. It also presented the arresting
officer’s testimony and videotape evidence on Minkoff's
performance on field sobriety tests: he did not successfully recite the
alphabet after the letter “T”; he swayed during the one-legged stand
and put his hand on a door as a brace; and, during the walk and turn
test, he stepped off the line, nearly fell over, and took more steps
than he was instructed to take. Suppressing the State’s breath test
and allowing a new trial would leave Minkoff unable to rebut the
field sobriety test evidence through an independent blood test—the
right to which he was effectively denied. We conclude suppression
of the breath test results is insufficient to remedy the deprivation of
that right and, accordingly, we overrule the remedy set forth in
Strand. [Minkoff, supra at 254.]
I find these concepts highly persuasive. Neither ignoring the constitutional

violation nor allowing for suppression of the results of the state’s chemical test

will rectify the violation or put a defendant on equal footing with that of his

accuser. Rather, a police officer can unilaterally place a defendant in a position

from which he can never recover—namely, completely without chemical evidence

to use to defend against the prosecutor’s chemical evidence. And an officer’s

good or bad faith has no bearing on the fact that the defendant is still deprived of

27

the only exculpatory evidence that he might possibly obtain. “This is not a case

simply of ‘justice’ or ‘fairness’, in the abstract. Denial to defendant of the

opportunity to conduct his own blood test was a denial of access to evidence he

might have introduced in his own defense. For this reason, it is a denial of his

constitutionally guaranteed due process of law.” Myers, supra at 24. Thus, in my

view, nothing less than dismissal cures the violation, for there is no other way to

ensure a defendant’s Sixth Amendment right to a fair trial.

A toothless jury instruction designed merely to inform the jury that the right

was violated does nothing but elevate the prosecutor’s position over that of the

defendant and cannot be any further from adequate. The majority’s proclamation

that the case must go forward to preserve the quest for “truth” is simply

unpersuasive when the truth-seeking process was deliberately thwarted by the state

and resulted in categorically denying defendant the ability to bring any meaningful

evidence in his defense. Under the majority’s indiscriminate elevation of its

distorted view of the “truth-seeking process” over constitutional due process

rights, no constitutional violation will ever merit the dismissal of a case or even

suppression of evidence.

I would find that depriving a driver of the mandatory right to an

independent chemical test is a due process violation for which dismissal of the

charges is the only remedy. To hold otherwise is to not only ignore the clearly

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mandatory nature of the statute, but to disregard the constitutional implications of

its violation. For these reasons, I respectfully dissent.

Michael F. Cavanagh
Marilyn Kelly

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