Opinion
Docket No. 2,353.
Decided March 19, 1968.
Appeal from Recorder's Court of Detroit; Wood (Andrew C.), J. Submitted Division 1 October 5, 1967, at Detroit. (Docket No. 2,353.) Decided March 19, 1968.
Charlie Henry Thornton was convicted of operating a motor vehicle while under the influence of intoxicating liquor. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.
Tauber Garon, for defendant.
On May 25, 1966, the defendant was tried in the recorder's court for the city of Detroit, traffic and ordinance division, in a nonjury trial on a charge of having operated a motor vehicle on March 26, 1966, while under the influence of intoxicating liquor. At trial, testimony of a police officer and the defendant disclosed that the defendant was in an automobile accident on the date charged in the complaint. Shortly after the accident the defendant was taken to a police station where an officer advised the defendant that if he wanted to, he could take a breathalyzer test. Additionally, the officer testified that he advised the defendant that he had the right to refuse to take such a test. The officer further testified the defendant was advised that he could have a doctor of his own choosing administer an additional test, such as a blood test, if he so desired. The defendant, in testifying along the lines above outlined, stated that he was not specifically advised that he had a right to go to Receiving Hospital and have a blood test.
CLS 1961, § 257.625 (Stat Ann 1960 Rev § 9.2325).
The results of the breathalyzer test, adverse to the defendant, were admitted into evidence at trial; and a conviction as charged followed.
We note that two witnesses for the prosecution testified that the defendant was specifically advised that he had a right to have a physician of his own choosing conduct a test in addition to the breathalyzer test. When the defendant testified, he did not refute this testimony.
There is now no requirement under the amended statute that a defendant, after submitting to a chemical test administered by a police officer, be advised that he has a right to have a person of his own choosing administer another chemical test. People v. Church (1966), 5 Mich. App. 303. See also the comment by Professor Lionel Frankel on the effect of the amendment of the statute in the 1964 annual survey of Michigan criminal law and evidence (11 Wayne L Rev 92, 107). Here, of course, there is testimony that the defendant was advised that he could have his own physician administer an additional chemical test.
CLS 1961, § 257.625a, as amended by PA 1964, No 104 (Stat Ann 1968 Cum Supp § 9.2325[1]).
The thrust of defendant's argument against admissibility of the test results is that defendant was not advised that he could have a blood test administered to him at a specific hospital, and that this constituted error. No law is quoted in support of this proposition, we find none, and our own consideration of it does not incline us to enunciate any.
On appeal the defendant contends that he was never offered the opportunity to take a blood test and that therefore the results of the breathalyzer test were inadmissible pursuant to CLS 1961, § 257.625a(3) (Stat Ann 1968 Cum Supp § 9.2325 [1][3]). Defendant's contention as to inadmissibility of the test results is erroneous. Our decision in this cause is controlled by People v. Church, supra; People v. Kerrigan (1967), 8 Mich. App. 216; People v. Collett (1967), 8 Mich. App. 419; People v. Alford (1967), 8 Mich. App. 211; and People v. Egner (1967), 9 Mich. App. 212.
Affirmed.
J.H. GILLIS and T.G. KAVANAGH, JJ., concurred.