The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5504

July 6, 1979

MICHIGAN MOTOR VEHICLE CODE:

Implied consent law

IMPLIED CONSENT LAW:

Administration of blood alcohol test

WORDS & PHRASES:

'Administer'

Where a person charged with driving under the influence of intoxicating liquor requests that a blood alcohol test be 'administered' by a 'person of his own choosing' within a reasonable time of detention, the implied consent statute permits that person the choice of who will collect the specimen and perform the chemical test.

Colonel Gerald L. Hough

Director

Department of State Police

714 South Harrison Road

East Lansing, Michigan 48823

You have requested my opinion on the following question:

Where a person charged with driving under the influence of intoxicating liquor requests that a blood-alcohol test be 'administered' by a 'person of his own choosing' within a reasonable time of detention, does the implied consent statute permit that person the choice of who will collect the specimen and perform the chemical test?

The implied consent law is found in the Michigan Motor Vehicle Code, 1949 PA 300, Ch VI, Sec. 625a; MCLA 257.625a; MSA 9.2325(1). 1949 PA 300, Sec. 625a(2) and (3), supra, provide:

'(2) A sample or specimen of urine, breath, or saliva shall be taken and collected in a reasonable manner. Only a duly licensed physician, or a licensed nurse or medical technician under the direction of a licensed physician and duly qualified to withdraw blood acting in a medical environment, at the request of a police officer, may withdraw blood for the purpose of determining the alcoholic content of the blood under this act. Liability for a crime or civil damages predicated on the act of withdrawing blood and related procedures shall not attach to a qualified person who withdraws blood or assists in the withdrawal in accordance with this act unless the withdrawal is performed in a negligent manner.

'(3) A person charged with a crime enumerated in subsection (1) who takes a chemical test administered at the request of a police officer, as provided in subsections (1) and (2), shall be informed that the person will be given a reasonable opportunity to have a person of his or her own choosing administer 1 of the chemical tests as provided in this section within a reasonable time after his or her detention, and the results of the test shall be admissible and shall be considered with other competent evidence in determining the innocence or guilt of the defendant. A person charged with a crime enumerated in subsection (1) shall be informed that he or she has the right to demand that 1 of the tests provided for in subsection (1) shall be given him or her, and the results of the test shall be admissible and shall be considered with other competent evidence in determining the innocence or guilt of the defendant.'

The statute envisions the following four types of alcohol tests: urine, breath, saliva, and blood. The Michigan Motor Vehicle Code, Sec. 625a(2), supra, provides that urine, breath, and saliva may be taken and collected in a reasonable manner, but only a duly licensed physician or nurse or medical technician operating in a medical environment may withdraw blood for the purpose of determining the alcohol content of a defendant's blood for prosecution under this act.

Thus, after the police officer has arranged for one of the tests, the person charged may also arrange for the administration of another such test and the police officer must inform the person charged of this right.

Your question is whether the term 'administer' used in section 625a(3) applies merely to the withdrawal of the blood sample or whether it also includes the analysis of the sample. The same section utilizes the terms 'takes and collected' and such words are clearly distinct from 'administered' as used later in the section. In my opinion, the Legislature intended that 'administering' a test includes analysis of the sample. Had the Legislature intended otherwise it would have stated in subparagraph (3), cited above, that a person would have a reasonable opportunity to have a person of his own choosing 'collect a sample for one of the chemical tests provided in this section.'

The term 'administer' has been defined to mean 'conduct' or 'manage.' William Buchannan Foundation v Shepard, 383 SW2d 325 (Tex Civ App, 1955); see also, People v Salsbury, 134 Mich 537; 96 NW 936 (1903), where the term 'administration' was similarly defined in a different context.

A person charged under the implied consent law who chooses to have a blood test administered by another of his or her own choosing, in addition to the breath test administered by the police officer, is responsible for ensuring the evidentiary admissibility of the results of the test. The Michigan Court of Appeals followed the standards for the admissibility of blood samples in Gard v Michigan Produce Haulers, 20 Mich App 402, 407; 174 NW2d 73 (1969) where the court [citing Lessenhop v Norton, 261 Iowa 44; 153 NW2d 107 (1967)] said:

'[T]he party seeking introduction must show (1) that the blood was timely taken (2) from a particular identified body (3) by an authorized licensed physician, medical technologist, or registered nurse designated by a licensed physician, (4) that the instruments used were sterile (5) that the blood taken was properly preserved or kept, (6) and labeled, and (7) if transported or sent, the method and procedures used therein, (8) the method and procedures used in conducting the test, and (9) that the identity of the person or persons under whose supervision the tests were conducted be established.'

Thus, although Michigan Motor Vehicle Code, Sec. 625a(1), supra, provides that in a criminal prosecution for driving while under the influence of intoxicating liquor the results of a blood test are admissible, the courts have conditioned such admissibility upon the preliminary showing of the reliability of the chain of evidence and the qualifications of the person chosen to perform the test.

It is, therefore, my opinion that where a person charged with driving under the influence of intoxicating liquor requests that an alternative blood alcohol test be 'administered' by a 'person of his own choosing' within a reasonable time of detention, the implied consent statute permits that person the choice of who will collect the specimen and perform the chemical test.

Frank J. Kelley

Attorney General