McNitt v. Citco Drilling Co. 397 Mich. 384

Levin, J.

In People v Keen, 396 Mich 573, 575; 242 NW2d 405 (1976), we held that "where a blood alcohol test is administered pursuant to the statute the test result is not admissible in a criminal *388prosecution other than for driving while under the influence of intoxicating liquor (DUIL) or for driving while ability to operate a vehicle was impaired due to the consumption of intoxicating liquor (DI)”.

The common issue in these appeals concerns the admissibility of the result of a blood alcohol test in civil litigation, specifically actions for wrongful death commenced by the administrator of the estate of the allegedly drunken driver in McNitt and against the allegedly drunken driver in Gilbert.

We hold the results of tests administered pursuant to the statute cannot be used in civil litigation.1

I

As in Keen, we see no need to decide this case on constitutional grounds because "[e]ven if we were to conclude, on reconsideration of Lebel [v Swincicki, 354 Mich 427; 93 NW2d 281 (1958)], that the drawing of blood from an apparently drunken driver does not violate his rights under the Michigan Constitution, the statute limits the authority of police officers to request the.taking of blood and limits the use that may be made of a test result obtained pursuant to exercise of that authority”. People v Keen, supra at 576-577.2

*389The Michigan Vehicle Code makes admissible in DUIL prosecutions the result of a blood alcohol test.3

It is further provided that a person who operates a motor vehicle "is deemed to have given consent” to a blood alcohol test if he is "arrested while driving under the influence of intoxicating liquor or while his ability to operate a vehicle has been impaired due to the consumption of intoxicating liquor”.4

It is also provided, however, that "[a] person under arrest shall be advised of his right to refuse to submit to chemical tests; and if he refuses the request of a law enforcement officer to submit to chemical tests, no test shall be given”.5 If the driver refuses to take a test, the Secretary of State may suspend, revoke or deny issuance of a driving license.6

In Keen, this Court said:

"Even though the taking of an automobile driver’s blood without consent does not violate the Federal Constitution and even if on reconsideration of Lebel we were to conclude that it did not violate the Michigan *390Constitution, it would still be within the legislative prerogative to limit the right of police officers and others to take blood from allegedly drunken drivers. Whether consent is or is not constitutionally required, the Legislature may decide that the interest in enforcement of the drunk driving laws does not justify subjecting unconsenting drivers to blood alcohol tests — imposition of the sanction of revocation of driver’s license for unreasonable refusal to consent to a test appropriately protects the public interest.”7

II

In McNitt, the driver, who was unconscious, did not consent.

In Gilbert, the trial judge found, after an evidentiary hearing, that the driver did not consent.

While the relevant provisions of the Michigan Vehicle Code are sometimes called the "implied consent law” and it is provided that a person who operates a motor vehicle "is deemed to have given consent” to a blood alcohol test, it is also provided that "no test shall be given” to a person who refuses to consent. As the trial judge in McNitt declared, under the statute the issue "is not to be viewed in the ordinary search and seizure context, but solely in terms of consent”.

The contention of the defendant in McNitt that statutory authority is not needed to authorize the administration of blood alcohol tests or to make test results admissible in evidence elides the fact that but for the statute the tests probably would not have been administered by the hospital personnel.

In both Gilbert8 and McNitt the blood sample *391was taken at the request of a police officer to determine alcohol content and not for diagnostic purposes.

There is no suggestion that the hospitals would have allowed their personnel to draw blood for determination of alcohol content without a "request of a police officer” or that they would have allowed this to be done if they did not have the resulting statutory protection from civil and criminal liability.9

In administering the tests, the hospital personnel appear to have acted on the requests of police officers pursuant to the statute.

It has not been established that, as claimed by the defendant in McNitt, the officer, in requesting that a test be administered, was exercising an asserted common-law right to cause a blood alcohol test to be administered.

We do not preclude a showing at trial that the *392officer in requesting that the hospital personnel administer a test made known to them that he was not making the request pursuant to the statute so that they would be aware that if they administered the test they could not claim the statutory protection from civil and criminal liability. Upon such a showing the question whether the statute occupies the field and supersedes the asserted common-law right would be properly presented and require resolution; absent such a showing, we intimate no opinion on the question.

Ill

In People v Keen, supra, holding that a blood alcohol test result was not admissible in a prosecution for manslaughter, this Court said:

"In the context of an arrest for 'driving a vehicle while under the influence of intoxicating liquor’, advice that results of a consensual test will be used to determine the innocence or guilt of the driver means innocence or guilt of the offense for which the driver was arrested.” 396 Mich 583.

If the drivers in McNitt and Gilbert had been told, as the driver in Keen was told, that blood alcohol test results might be admitted in a DUIL prosecution and had, as contended by Gilbert, consented to the administration of such tests, the results could not, for essentially the reason stated in People v Keen, have been used against them in civil litigation. The test result would have been obtained on a representation of limited use made by a police officer acting pursuant to a statute providing for limited use. That limitation encourages drivers to consent to the test and assists in the prosecution of those who drive under the *393influence of intoxicating liquor or while their ability to drive is impaired due to intoxication.

It would be anomalous to construe the statute to allow a broader use of the results of tests taken under the authority of the statute but not in conformity with its terms than of test results obtained in conformity with statutory requirements.

IV

Test results obtained pursuant to the exercise of statutory authority are not admissible unless obtained in conformity with the requirements of the statute.10

The statute provides that a person under arrest "shall be advised of his right to refuse” a test and "if he refuses” the request "no test shall be given”. In Gilbert the judge found that the request of the officer was refused. McNitt’s state of unconsciousness precluded a request in conformity with the requirements of the statute. The tenor of this statute giving drivers the right to refuse to submit to a test is that "no test shall be given” unless the driver submits to a test.

The meaning of the statutory edict, "no test shall be given”, is that the driver has a choice whether to submit to a test;* 11 if he does not submit, this evidence of his condition shall not be extracted from him. If, as has been here contended, there is a right to use test results in civil litigation even if the driver does not submit because the test .was nevertheless administered, then — the statute to the contrary — the driver has no choice.

*394In precluding the use of test results obtained under color of statutory authority but in violation of the terms of the statute, we protect the driver’s statutory choice.

We also observe that the language of the statute, "in determining the innocence or guilt of the defendant”,12 is not the language of civil litigation.

A different question might be presented if the test had not been requested by a police officer, but had been administered by hospital personnel for diagnostic purposes.

The test results are not admissible in Gilbert13 or McNitt14 but this does not preclude a showing at trial that the officer eschewed his statutory authority.

We appreciate that drunk drivers are a menace and that strict enforcement of drunk driving laws is in the public interest. The Legislature has, however, limited the authority of police officers to request hospital personnel to withdraw blood or otherwise test for blood alcohol content without consent and has limited the use that may be made of blood alcohol test results obtained pursuant to exercise of that authority.

The Court of Appeals is affirmed. The cases are remanded to the trial courts for trial.

Kavanagh, C. J., and Williams and Fitzgerald, JJ., concurred with Levin, J.

Lindemer, J.

(dissenting). These cases concern the exclusion of evidence of blood alcohol levels in *395civil cases. McNitt v Citco Drilling Co involves an allegedly intoxicated plaintiff (now deceased) who sought to exclude from evidence the results of a chemical blood test. In Gilbert v Leach, an allegedly intoxicated defendant asked the trial court to exclude similar evidence.

Arguably the blood chemical tests in McNitt and Gilbert were performed in violation of MCLA 257.625d; MSA 9.2325(4). However, the prohibition against the use of the test in § 625d refers to criminal actions and to motor vehicle license revocation hearings, neither of which consideration is pertinent here. See the concurring opinion of Justice Coleman in People v Keen, 396 Mich 573; 242 NW2d 405 (1976).

The Court of Appeals in both McNitt and Gilbert held that the evidence of intoxication should be suppressed. In making these decisions the Court of Appeals relied upon a ruling of this Court in Lebel v Swincicki, 354 Mich 427; 93 NW2d 281 (1958). We believe that decision does not control these cases.

The Lebel court made much of Breithaupt v Abram, 352 US 432; 77 S Ct 408; 1 L Ed 2d 448 (1957). Blood taken from an unconscious person had been introduced into evidence during a prosecution for manslaughter in New Mexico. The state supreme court upheld admission. The United States Supreme Court noted that the evidence would be subject to exclusion in Federal courts. The majority, citing Wolf v Colorado, 338 US 25; 69 S Ct 1359; 93 L Ed 1782 (1949), said this exclusionary rule did not automatically apply to a state prosecution for a criminal offense under state law.

The Lebel court, noting the similarity between the search and seizure provisions of the Federal *396and Michigan Constitutions, said Breithaupt was authority for excluding such evidence in state criminal prosecutions. The question then became "whether the obtaining of [a test] in violation of the constitutional provision * * * renders it inadmissible in a civil action”. Although there was "a lack of authority bearing directly on the proposition” the Court thought "testimony based on the analysis of such blood should not be admitted in evidence”.

Lebel’s analytical foundation has been undermined by Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966). The defendant was arrested for driving under the influence. The arrest occurred at a hospital where he was being treated. A blood sample was taken at a police officer's request. The analysis was admitted at defendant’s trial.

The defendant in Schmerber claimed that the analysis should be excluded as the product of an unlawful search and seizure. The Court said "the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances or which are made in an improper manner”.

The Court said a warrant was not required. The officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant under the circumstances” might have resulted in the destruction of evidence. The Court was satisfied that the test used to measure blood alcohol level required a "minimal” quantity of blood and used procedures "that for most people * * * involves virtually no risk, trauma or pain”. The record also showed "that the test was performed in a reasonable manner”.

*397We believe the Lebel decision should no longer be followed to the extent that it would exclude admission of blood-alcohol analyses in civil cases. Lebel assumed the Fourth Amendment would prohibit admission in Federal court; Schmerber has deflated that assumption.

We also believe the rule fashioned by LebeLexclusion of the evidence in a civil case — has been rejected. The United States Supreme Court in United States v Janis, — US —; 96 S Ct 3021; 49 L Ed 2d 1046 (1976), discussed

"an issue of the appropriateness of an extension of the judicially created exclusionary rule: is evidence seized by a state criminal law enforcement officer in good faith, but nonetheless unconstitutionally, inadmissible in a civil proceeding by or against the United States?”

Based on information obtained pursuant to a state search warrant, the IRS assessed the respondent for wagering excise taxes. A state court subsequently quashed the warrant saying it was based on illegally obtained evidence. The lower Federal court then quashed the assessment.

The Supreme Court reviewed the history of the exclusionary rule noting that in "the complex and turbulent history of the rule” it had never been applied "to exclude evidence from a civil proceeding, Federal or state”. If the exclusionary rule was extended in the manner suggested, "the enforcement of admittedly valid laws would be hampered * * * and, as is nearly always the case with the rule, concededly relevant and reliable evidence would be rendered unavailable”.

The deterrent function of the rule had already been served because no criminal prosecution, state or Federal, could use the evidence. The offending *398officer was "already 'punished’ by the exclusion of the evidence in the state criminal trial”. The Court concluded "that exclusion from Federal civil proceedings of evidence unlawfully seized by a state criminal enforcement officer has not been shown to have a sufficient likelihood of deterring the conduct of the state police so that it outweighs the societal cost imposed by the exclusion”.

Scientific methods for determining the degree of intoxication based upon the alcohol content of the blood have lifted the fact-finding process from the morass of conjecture into an area in which greater certainty is available. The thrust of the law should encourage such a quest for factual certainty. The question is not one of the constitutionally protected freedom from self-incrimination; rather, it is one of the reasonableness of search and seizure. To exclude evidence of blood alcohol analyses in civil cases, we would require a showing that the sample was obtained by some means shocking to the conscience or offensive to our sense of justice. Acquiring of any evidence by such offensive methods should not be condoned by our judicial system. On that basis, I cannot say that the taking of the blood test in McNitt and Gilbert was unreasonable under all of the circumstances for the purposes of subsequent use in connection with those civil actions.

Because we have rejected the basis for the decisions below, the Court of Appeals and trial courts should be reversed. This matter should be remanded to permit the parties to proceed in accordance with this opinion.

Coleman and Ryan, JJ., concurred with Lindemer, J.