STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6328

December 19, 1985

MOTOR VEHICLES:

Suspension of a license of a driver refusing to consent to a chemical test where a blood test was obtained pursuant to a court order

STATE, DEPARTMENT OF:

Authority to suspend license of driver refusing to consent to a chemical test where blood test obtained pursuant to court order

A court order compelling a person to submit to a chemical test to determine the amount of alcohol and/or controlled substance in a person's blood does not serve to rescind the person's earlier refusal to submit to a chemical test and the Secretary of State may consider such a refusal to consent to a chemical test as a basis for suspension of the license of such person.

Honorable Richard H. Austin

Secretary of State

State Treasury Building

Lansing, Michigan

You have requested my opinion on the following question:

'Does the fact that a peace officer obtained a blood test pursuant to a court order prevent an otherwise justified suspension of driving privileges under Michigan's Implied Consent statute?'

The pertinent Implied Consent provisions of the Michigan Vehicle Code your question refers to are set forth below.

MCL 257.625c; MSA 9.2325(3), provides in pertinent part:

'(1) A person who operates a vehicle upon a public highway . . . in the state is considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance or both in his or her blood if:

'a) The person is arrested for a violation of section 625(1) or (2) or 625b, . . .

'(b) The person is arrested for felonious driving, negligent homicide, or manslaughter resulting from the operation of a motor vehicle, and the peace officer had reasonable grounds to believe that the person was operating the vehicle while impaired by or under the influence of intoxicating liquor or a controlled substance or a combination of intoxicating liquor and a controlled substance, or while having a blood alcohol content of 0.10% or more by weight of alcohol.'

MCL 257.625d; MSA 9.2325(4), provides in pertinent part:

'If a person refuses the request of a peace officer to submit to a chemical test offered pursuant to section 625a, a test shall not be given without a court order. A written report shall be forwarded to the secretary of state by the peace officer. The report shall state that the officer had reasonable grounds to believe that the person had committed a crime described in section 625c(1), and that the person had refused to submit to the test upon the request of the peace officer and had been advised of the consequences of the refusal . . ..'

MCL 257.625e; MSA 9.2325(5), provides in pertinent part:

'(1) Upon receipt of the report made pursuant to section 625d, the secretary of state shall immediately notify the person in writing, mailed to his or her last known address, that the report has been received and that within 14 days of the date of the notice the person may request a hearing as provided in section 625f.

'(2) The notice shall specifically state that failure to request a hearing within 14 days will result in the suspension of the person's license or permit to drive . . ..'

MCL 257.625f; MSA 9.2325(6), provides in pertinent part:

'(1) If the person who refuses to submit to a chemical test pursuant to section 625d does not request a hearing within 14 days of the date of notice pursuant to section 625e, the secretary of state shall suspend the person's operator's or chauffeur's license . . .

'(2) If a hearing is requested, the secretary of state shall hold the hearing . . . The hearing shall cover only the following issues:

'(a) Whether the peace officer had reasonable grounds to believe that the person had committed a crime described in section 625c(1).

'(b) Whether the person was placed under arrest for a crime described in section 625c(1).

'(c) Whether the person reasonably refused to submit to the test upon the request of the officer.

'(d) Whether the person was advised of the rights under section 625a and 625c.

***

'(4) After the hearing, the secretary of state may suspend or deny issuance of a license or driving permit . . . The person involved may file a petition in the circuit court of the county in which the arrest was made to review the suspension or denial as provided in section 323.'

MCL 257.323; MSA 9.2023, provides in pertinent part:

'(4) In reviewing a determination resulting in a denial or suspension under section 625f, the court shall confine its consideration to 1 or both of the following:

'(a) A review of the record prepared pursuant to [MCL 625.] 625f(3) to determine whether the hearing officer properly determined the issues enumerated in section 625f(2).'

A basic principle of statutory construction is that the Legislature intended the meaning plainly expressed in legislation and there is no room for construction or interpretation to vary plainly expressed language. Mason County Civic Research Council v Mason County, 343 Mich 313; 72 NW2d 292 (1955), Dussia v Monroe County Employees Retirement System, 386 Mich 244; 191 NW2d 307 (1971).

The plainly expressed provisions of MCL 257.625f; MSA 9.2325(6), specify the only issues the Secretary of State may consider in determining whether an operator's license should be suspended because the licensee reasonably refused to submit to the chemical test, and the issue of whether the peace officer obtained a blood test pursuant to a court order is not one of those issues. The provisions of MCL 257.625f; MSA 9.2325(6), are not ambiguous and may not be construed to allow the Secretary of State to consider whether a court ordered a blood test in deciding whether a person reasonably refused to submit to a chemical test and should have his/her driver's license suspended.

Another principle of statutory construction is that effect must be given every word, sentence and section and interpretation of the provisions of one section made after consideration of other pertinent sections, Dussia, supra, p 284. When consideration is given to all of the provisions quoted herein it is obvious that MCL 257.625f; MSA 9.2325(6), includes all relevant issues and that the Legislature did not intend to allow the Secretary of State to consider whether a court ordered a person to submit to a chemical test. An intent to have the Secretary of State consider that issue would be clearly expressed in at least one provision and the absence of any indication of that intent precludes the construction of MCL 257.625f; MSA 9.2325(6), to allow consideration of that issue.

You indicate in your letter that the Driver License Appeal Division (DLAD) hearing officers have reached differing conclusions with respect to whether a court ordered blood test excuses a refusal to submit to a chemical test. You state that basis for these decisions is the reasoning in Smith v Commonwealth, 80 PA Commw 117; 470 A2d 1125 (1984), and a Wayne Circuit Court's opinion in Levin v Secretary of State, Case No. 82-239681-AL, two appeals from suspensions of driver's license for refusing to submit to chemical tests. Neither case is directly on point. Both of these cases involved the issue of whether an initial unconditional refusal to submit to a chemical test may be subsequently cured if the defendant later changed his mind and voluntarily asks that the chemical test be administered.

Your question, in contrast, does not involve a voluntary decision to permit the administration of a chemical test following an initial refusal. Rather, you have inquired as to a factual situation where, following an initial refusal to consent, the blood test was obtained involuntarily by means of a court order. Under the circumstances, the blood test has not been voluntarily consented to and, therefore, triggers the consequences of a refusal under the Michigan Vehicle Code.

It is my opinion, therefore, that a court order compelling a person to submit to a chemical test to determine the amount of alcohol and/or controlled substance in the person's blood does not serve to rescind the person's earlier refusal to submit to a chemical test. It is my further opinion that the Secretary of State may consider such a refusal to consent to a chemical test as a basis for the suspension of a person's license pursuant to MCL 257.625f; MSA 9.2325(6).

Frank J. Kelley

Attorney General