People v. Lyall

¶1(concurring in reversal and remand). Since the. “blood test” issue in drunk driving cases is arising with increased frequency in other jurisdic*623tions as well as here, I believe it advisable that the, complete statute, under which today’s solely reviewable question arose,* should be set forth in our reports. That statute is known as section 625a of the' Michigan vehicle code (CLS 1961, § 257.625a [Stab Ann 1963 Cum Supp § 9.2325(1)]). It entered the'; code in 1960, by PA No 148, and reads: >

“Sec. 625a. (1) In any criminal prosecution fe* lating to driving a vehicle while under the influence of intoxicating liquor where a person who, after being first advised and acknowledging in writing that he is not required by law to give his consent to a chemical test, shall have given his written consent to a chemical test of his blood for the purpose of determining the alcoholic content of his blood, the amount of alcohol in such person’s blood at the time alleged as shown by such chemical analysis of the person’s blood, shall be admissible and shall give rise to the following presumptions, and in the event any such tests are given, the results of such tests shall be made available to the person so charged or his attorney prior to the day of the trial and must be introduced into evidence by the prosecution upon the demand of the defendant:

“(a) If there was at that time 0.05% or less by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor;

“(b) If there was at that time in excess of 0.05% but less than 0.15% by weight of alcohol in the defendant’s blood, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant;

*624Éí(c) If there was at that time 0.15% or more by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor; however, such presumption shall be subject to rebuttal.

! “(2) Only a duly licensed physician or duly registered nurse, under the supervision of a licensed physician, acting at the request of a police officer, ■can withdraw blood for the purpose of determining the alcoholic content therein under the provisions 'of this act.

i “(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 the defendant. The defendant shall be advised of his right to the test provided for in this subsection.

“(4) The refusal on the part of any person to submit to any such test shall not be admissible in any criminal prosecution relating to driving a vehicle while under the influence of intoxicating liquor.

“(5) The provisions of this section shall not be construed as limiting the introduction of any other . competent evidence bearing upon the question of whether or not the defendant was under the influence of intoxicating liquor.” . .

¶2*625Section 625a goes to the ultimate in protecting the rights of persons who are charged with drunk driving. The test permitted by division (1) cannot he made without the advice and consent of the accused. Such advice and consent must be — as it was here — acknowledged and declared in writing by the accused. The same division grants to the accused a unilateral right to have such test made and to have the results thereof “introduced into evidence.” The section provides for him another like right, that of having his own test made under division (3), with “the results of such test” made admissible upon his exclusive volition. And it guarantees to him, in case he has consented to a division (1) test, knowledge of the “results” of such test prior to trial.

¶3Finally, reaching the reviewable question, it preserved and now preserves as a matter of legislative intent this defendant’s right to have the chemical analysis in question proved by sworn testimony of the analyst. Such intent is gleanable from the absence in section 625a of a provision making the analyst’s certificate distinguished from his testimony admissible in evidence; also from section 2 of the statute under which the analyst of the State crime detection laboratory made the consented analysis. Said section 2 (CL 1948, § 325.102 [Stat Ann 1956 Rev § 14.55]) provides that “the fees of expert witnesses of such laboratory” shall be paid by State appropriation. This to me manifests legislative intent that such experts are to testify to their findings rather than certify them. And such intent is in keeping with a time-tried and otherwise applicable rule of evidence.

¶4The foregoing in mind, I cannot agree either (a) that the certificate of the analyst was admissible in lieu of his testimony, as former Chief Justice Carr has written, or (b) that it is necessary in this case to consider the “broad” principle • Chief Justice *626KavanAgh' espouses. It is sufficient to say that the defendant’s raised, saved and brief-stated point of law should be upheld.

¶5I concur in reversal and remand for retrial.