DISTRICT COURT UPDATE
Summons Article, September, 2006
written by
Hon. M. Randall Jurrens

      Another Michigan Supreme Court reversal of an established rule of law is the subject of this month’s update.

      As you undoubtedly know, MCL 257.625(6)(d) authorizes peace officers to request that suspected drunk drivers submit to a chemical test (e.g. the Datamaster breath test).  Reciprocally, the statute provides that suspects “shall be given a reasonable opportunity to have a person of his or her own choosing administer [ a chemical test ] within a reasonable time after his or her detention.”

      In 1963, a unanimous Supreme Court concluded, without much discussion, that police denial of a suspect’s statutory right to an independent chemical test justified dismissal of the case.  People v Koval, 371 Mich 453 (1963).

      However, in People v Anstey, ___ Mich ___ (2006), a majority of the state’s current Supreme Court concluded that the appropriate remedy for police noncompliance with this statutory requirement is a permissive jury instruction.

      On July 31, 2006, Anstey expressly overruled Koval and its progeny on the basis that if the Legislature intended the charge be dismissed if the police denied the defendant’s request for an independent chemical test, it could have so specified (just as the remedy of suppression is specified for violation of subsection 8 of MCL 257.625a).

      Observing that there is nothing in the statute indicating that the proper remedy for violation of the defendant’s statutory right is suppression of evidence, much less dismissal of the case, five current justices declined to infer such legislative intent.

      Concluding, however, that the court was not powerless to act, four justices proposed that the jury be informed of the violation and instructed that it may determine what weight to give to the police officer’s wrongful conduct; and to this end, spelled out a possible jury instruction for trial court’s to use if warranted by the evidence.

      In a spirited dissent, two justices decried the majority’s opinion as only “its most recent stride in eroding the statutory and constitutional rights of criminal defendants”; softened, here, only by the “consolation” of a “nonremedy remedy” of a jury instruction.

      Questioning the majority’s failure to apply the “reenactment doctrine,” the dissent noted that, although amending the drunk driving statute 12 times over the intervening 43 years, the Legislature never undertook to nullify Koval’s interpretation that the correct remedy for disregarding the defendant’s statutory right is dismissal of the charge.

      Indeed, the dissenters found it “ridiculous” to believe the majority’s claim that a “toothless” jury instruction will “accord meaning to the right” and “deter police officers from violating that right”.  Rather, they concluded that violation of the statutory right to an independent chemical test constituted an unconstitutional deprivation of defendants’ right to a fair trial (by denying the opportunity of securing exculpatory evidence) and, accordingly, found dismissal to be the only sufficient remedy.

      In the end, five of the current justices voted to reverse an established rule of Michigan law; deciding that seven of their predecessors unanimously erred decades ago in interpreting the intention of dozens of legislators who enacted a statute “for the protection and benefit of” criminal defendants.

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