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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

On September 1, 2009, the Court of Appeals published a per curiam opinion in <a href="http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20090901_C282782_43_282782.OPN.PDF" target="_blank" rel="noopener"><em>People v. Hyde</em>, No. 282782</a>, in which it reversed the trial court and remanded for entry of an order vacating the defendant's conviction for operating while intoxicated ('OWI'), where the officers failed to inform the diabetic defendant of his statutory right to refuse blood withdrawal. The Court rejected the state's argument that discovery of his blood alcohol level would have been inevitably discovered through a urine sample or breath test. The defendant's consent to those methods was not inevitable and high probable cause coupled with inevitable discovery did not excuse the state from the Fourth Amendment requirement to obtain a warrant in the absence of consent.

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Defendant Hyde was convicted of operating a motor vehicle while intoxicated, operating a motor vehicle while license suspended, and possession of an open alcohol container in a motor vehicle. Officers stopped Mr. Hyde while he was driving a motor home in the center of the highway, after following its tire tracks through a light covering of snow and observing the tire tracks weaving six times or more across the roadway. After the defendant was asked to exit the vehicle because of a dog inside, Officer Williams smelled intoxicants. Hyde appeared to have slow motor skills and poor balance when exiting. He also had slurred speech and was unable to say his ABCs or count from 17 to 25 and then back down to 23. At some point, Hyde informed Officer Williams that he was a diabetic. The police arrested Hyde and he was taken to Cheboygan County Jail, where a sample of his blood was drawn.

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Before trial, Hyde filed a motion to suppress all evidence that resulted from his stop because it violated his constitutional right to be free from unreasonable searches and seizures. He also filed a motion to suppress his blood sample and the test results under the Fourth Amendment because his consent to the blood draw was coerced when police incorrectly told him the implied consent statute authorizes penalties for failing to submit to the test, even though he was exempt from the blood test as a diabetic.

The Court of Appeals held that there was reasonable suspicion to conduct the stop based on the observations of the tire tracks by the officers in pursuit. But the Court agreed with the defendant that the trial court erred in admitting the blood tests because they were taken in violation of Hyde's Fourth Amendment rights.

The implied consent statute provides that the operator of vehicle on a public highway or other publicly accessible place has given implied consent to chemical tests of his or her blood, breath, or urine for determining blood alcohol levels or narcotics. MCL 257.625c. Refusal to submit to those tests generally results in suspension of the license and 6 points on the driving record. Consent is not implied, however, for diabetics.

It was undisputed that the officers were aware Hyde was a diabetic but were unaware there was an exception to the implied consent statute for diabetics and misinformed Hyde that he would be subject to the statute's penalties if he refused to take the blood test. The Fourth Amendment exclusionary rule generally requires exclusion of evidence obtained in violation of Fourth Amendment rights. However, the inevitable discovery doctrine may provide an exception to that rule where the evidence found would have ultimately been found in a constitutionally acceptable manner and the exception does not provide an incentive for police misconduct or significantly weaken Fourth Amendment protections.

To accept the state's argument that a warrant would inevitably have been obtained with the existing high probable cause would vitiate the warrant requirement any time high probable cause exists and there would never be any reason for officers to seek a warrant. The Court of Appeals observed that even the most liberal federal courts require police to have been in the process of obtaining a warrant when the evidence was obtained, and there was no dispute in this case the officers made no effort to obtain a warrant. In the Court's view, this result would seriously damage the Fourth Amendment and provide an incentive for improper or careless police conduct. Moreover, the possibility that Hyde would consent to alternative tests under threat of the statutory penalties because he consented to the blood test under those same penalties did not establish by a preponderance of the evidence that his consent was inevitable.

The jury made a specific finding that he was guilty of OWI because his blood alcohol was 0.08% or higher and not under the alternative provision that he was operating under the influence of alcohol. The Court of Appeals therefore concluded the verdict could not stand under one different than the one specifically determined by the jury.

COA Opinion: The inevitable discovery rule does not by itself excuse failure to obtain a warrant

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