People v. Craun

Gribbs, J.

(dissenting). I respectfully dissent.

On November 12, 1983, Officer Jeff Matte of the Lake Orion Police Department arrested defendant for running a stop sign, fleeing from a police officer, and driving while under the influence of intoxicating liquor. Defendant was taken to the police station, where another officer gave him a Breathalyzer test. Officer Matte read defendant his rights, including the right to have a blood test administered by a person of his own choosing. Defendant requested that an independent blood test be taken. Officer Matte informed defendant that he "had no problem with that” and told him to find his own physician to do so. Matte gave defendant a telephone book, and defendant made five to seven telephone calls. Defendant called his psychiatrist, who said that he could not do the blood test because he was no longer a practicing physician. He called some other doctors who would not come out and give him a blood test since he was not one of their patients. As far as Matte knew, defendant was unable to find a doctor who would perform the test.

After he made the telephone calls, defendant told Matte that he could not get anybody to do the test, and Matte responded that there was nothing he could do about it. According to Matte, defendant "quit making telephone calls on his own; he just kind of gave up and said 'forget it.’ ” Matte told defendant that "was fine,” and that he could make another telephone call if he could think of someone who would give him the test, and an officer would take him to get the test. Defendant never made a request to go to Pontiac Osteopathic Hospital or any other hospital for a blood test, although it was established that Matte could have *571taken defendant to Pontiac Osteopathic Hospital, which was about a quarter of a mile away. Matte testified that when defendant was arrested he did not know who could give blood tests and that he would have advised defendant that Pontiac Osteopathic gave blood tests had he known that at the time. Such testimony was not contradicted or rejected by the trial court. The pertinent portion of Matte’s testimony at the hearing reveals the following:

The Court: Okay. Now, let’s presume for the sake of discussion that you have somebody from Cleveland, Ohio, that has been arrested, and you advise them that he has a right to a — after taking the breath test, to a blood test. And let’s presume for the sake of discussion he doesn’t know any hospitals in the area or he doesn’t know any doctors in the area and the like. Does he still have that right to a blood test?
The Witness: Yes.
The Court: And how does he obtain that blood test then, if he doesn’t know anybody in the area? How does he keep his right?
The Witness: I would do what I did with this gentleman; I would hand him the phone book and advise him that we do have hospitals in the area and at this point I wasn’t aware of who could give blood tests at that point. I am now aware that Pontiac General and Pontiac Osteopathic will give blood tests, so I would have advised him of that, if I had known. [Emphasis added.]

The policy of the Lake Orion Police Department was to allow defendants an opportunity to seek an independent blood test and to take them anywhere within reason to get the test. Defendant could have obtained a blood test at Pontiac Osteopathic Hospital if he had requested one.

The trial court ruled that the burden of obtain*572ing an independent blood test was on the people and that defendant was denied his right to such a test by the Lake Orion Police Department’s procedures. Consequently, it dismissed the drunk driving case against defendant.

The Oakland Circuit Court affirmed. I would reverse.

A person who takes a Breathalyzer test at a police officer’s request "shall be given a reasonable opportunity to have a person of his or her own choosing” administer another chemical test within a reasonable time after his or her detention, MCL 257.625a(5); MSA 9.2325(1X5).

Clearly, a defendant must be apprised of his right to obtain an independent chemical test. See People v Lambert, 395 Mich 296, 302; 235 NW2d 338 (1975). In addition, police officers cannot hamper a defendant who has made arrangements for an independent chemical test. See People v Underwood, 153 Mich App 598; 396 NW2d 443 (1986). However, I disagree with the district and circuit courts’ conclusion that police officers must affirmatively assist a person in obtaining an independent chemical test beyond what was done in this case. It is uncontradicted that at the time of defendant’s arrest Officer Matte did not know that local hospitals administered blood tests. The statute itself provides that a defendant may have an independent test administered by a person of his or her own choosing. This language suggests that the Legislature intended that the burden- of obtaining an independent test rests on the defendant, and not the police. Police officers are not required to affirmatively assist a defendant in obtaining an independent chemical test beyond allowing him to call persons of his own choosing and making transportation available. The majority places a burden upon the police to locate a place for additional *573tests even though the defendant made no such request. If the officers had suggested a place where defendant could obtain a blood test, the possibility exists that a defendant could argue that the test was not "independent.” I conclude that the statute does not require the police to find an individual to administer a chemical test to every defendant.

The Massachusetts Supreme Court reached a similar conclusion in Commonwealth v Alano, 388 Mass 871, 879-880; 448 NE2d 1122 (1983). It noted:

The cases from other jurisdictions, supra, concern the scope of a due process, rather than a statutory, right to a reasonable opportunity to have an independent examination, but we find the principles sufficiently analogous to be relevant to our interpretation of the statute. These cases take the view that, while the police cannot hamper the defendant’s attempt to obtain a blood alcohol content sample, they need not assist him. Thus, it has been held that the police cannot constitutionally refuse to allow the accused to call a physician, or other person who could arrange for a physical examination. Smith v Cada, 114 Ariz 510, 514 [562 P2d 390] (Ariz App, 1977). In re Newbern, 175 Cal App 2d 862, 866 [1 Cal Rptr 80] (1959). State v Munsey, 152 Me 198, 200-203 [127 A2d 79] (1956). See People v Burton, 13 Mich App 203 [163 NW2d 823] (1968) (defendant’s due process rights violated when police officer called defendant’s physician, was informed that he was unavailable, and failed to advise the defendant that his physician had not been summoned). . . .
We conclude that under G.L. c. 263, § 5A, the police must not prevent or hinder an individual’s timely, reasonable attempts to obtain an independent examination, but they need not assist him. They need only inform him of his rights and allow him access to a telephone. We note, however, that the meaning of a "reasonable opportunity” to obtain an examination may vary depending on the circumstances. In appropriate circumstances the *574police might well be obliged to allow communication by an accused beyond the single telephone call required by statute. However, in the present case there are no allegations of unusual factors. We conclude that, as there is no evidence that the police hindered the defendant’s attempts to secure an independent physical examination, or failed to inform the defendant of his statutory right to such an examination, the defendant was not denied a reasonable opportunity to obtain an examination under G.L. c. 263, § 5A. Accordingly, the motion to dismiss was properly denied and the judgment of conviction is affirmed.

See also Harper v State, 164 Ga App 230, 230-231; 296 SE2d 782 (1982).

I would reverse.