People v. Wager

Smolensk!, J.

(dissenting). I respectfully dissent. I would affirm defendant’s conviction. The issue presented is whether the trial court abused its discretion in denying defendant’s pretrial motion to suppress defendant’s blood alcohol test results. This evidence was thereafter admitted at trial pursuant to the parties’ stipulation.

In a prosecution for operating a vehicle while under the influence of intoxicating liquor, there are four foundational requirements to the admission of the results of a chemical test of blood alcohol, one of which is “that the test was performed within a reasonable time after the arrest.” People v Kozar, 54 Mich App 503, 509, n 2; 221 NW2d 170 (1974). A failure to adduce evidence of the foundational requirements precludes the admission of the test result into evidence. People v Krulikowski, 60 Mich App 28, 32-33; 230 NW2d 290 (1975). The determination whether the foundational requirements have been met is for the trial court and is consigned to its discretion. People v Schwab, 173 Mich App 101, 104; 433 NW2d 824 (1988).

In this case, the record from the hearing regarding the motion to suppress consisted of the limited stipulated facts concerning the relevant sequence of events, including the approximate time defendant last operated his motor vehicle and the time defendant’s blood was drawn, and the opinion testimony of defendant’s expert concerning these bare-bones facts. *12The trial court rejected the expert’s opinion testimony, reasoning that if it “were to take the testimony of [defendant’s expert], accept it . . . completely then it is virtually impossible to ever get any information.” The court also noted that “to accept the premise being postured here would mean that every time there’s a driving incident or an accident there would have to be portable medical teams, portable labs on the site, investigation, and that’s just not the statutory scheme.” I cannot fault the court’s stated reasoning in rejecting the expert’s opinion testimony. Moreover, where no evidence was adduced concerning this particular defendant’s body weight, food consumption, and other pertinent factors that might have contributed to the alcohol elimination rate, I question how the expert’s testimony could even assist the court in making an accurate determination whether the test was performed within a reasonable time after defendant last drove his vehicle. Cf. People v Prelesnik, 219 Mich App 173, 180; 555 NW2d 505 (1996).

Having rejected the expert’s opinion testimony, the remaining record evidence consisted of the stipulated facts indicating that defendant’s blood was drawn, at most, approximately 140 minutes after defendant last operated his vehicle. The court concluded that “the time parameters presented here are those which indicate that the test was taken within a reasonable time of the driving.” A trial court possesses considerable discretion in determining the adequacy of the foundational requirements in any given case, and its determination in this regard should not be lightly set aside. Krulikowski, supra at 33. Moreover, “the prosecutor is not required to introduce expert testimony to interpret and relate the results of chemical tests . . . back *13to the time of the alleged offense . . . Kozar, supra at 509.

Finding nothing inherently unreasonable solely in the fact of a 140-minute lapse of time between the time defendant last operated his vehicle and the drawing of his blood, I am unwilling to second-guess the trial court’s considerable discretion in rejecting the expert’s opinion testimony and then determining that the time parameters alone provided an adequate basis for its conclusion that the test was performed within a reasonable time after defendant last operated his vehicle. See Schwab, supra at 104 (noting that “[Reasonableness is a somewhat amorphous concept”). Because the foundational requirement was met, the test results were admissible. Krulikowski, supra. Accordingly, the trial court did not abuse its discretion in denying the motion to suppress, and the test results were properly admitted at trial pursuant to the parties’ stipulation. People v Sawyer, 222 Mich App 1, 5; 564 NW2d 62 (1997). Becausé I conclude that the trial court did not abuse its discretion in denying the motion to suppress, I do not address whether harmless error occurred. However, even assuming that evidentiary error occurred in this case and that the error was not harmless, I dissent from the majority’s failure to remand this case for a new trial at which the blood alcohol test results would not be admitted.