PEOPLE OF MI V WENDY JO BRADFORD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 27, 2005
Plaintiff-Appellant,
v
No. 257343
Eaton Circuit Court
LC No. 04-000412-AL
WENDY JO BRADFORD,
Defendant-Appellee.
Before: Fitzgerald, P.J., and O’Connell and Kelly, JJ.
FITZGERALD, P.J. (dissenting).
I respectfully dissent.
After being asked to submit to a breath test, defendant responded that she would not take
a breath test and wanted to talk to her lawyer. Officer Kinney explained to defendant that he
would let her talk to her attorney after the breath test, but defendant was adamant about speaking
to her lawyer before taking the test. Officer Kinney arrived at the jail with defendant at 12:52
a.m. and logged her as refusing the breath test at 1:12 a.m. Because respondent was logged as
having refused the test, her license was subject to suspension. MCL 257.319b; MCL
257.625a(6)(b)(v); MCL 257.625d. Respondent requested a hearing before the Driver’s License
Appeal Division (DLAD) as provided by MCL 257.625e.
Officer Kinney was the only witness to testify at the driver’s license appeal hearing.
After both sides had made closing statements, the hearing referee agreed that there is no right to
counsel associated with the taking of a breath test. However, the referee found defendant’s
refusal to be reasonable on the basis of Hall v Secretary of State, 60 Mich App 431; 231 NW2d
396 (1975), stating:
[S]imply allowing access to the phone, a phonebook and maybe five
minutes of time, maybe ten minutes of time to get in contact with an attorney is an
appropriate—especially when it’s coupled with a statement like, no, I want to talk
to an attorney. I mean it’s clear that the refusal to take the test at that point is tied
with wanting to talk to any attorney, whether it would be for an explanation or
evidence, and I don’t think it’s that significant of an impediment to the process of
the arrest in this case.
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For these reasons, the hearing referee granted defendant’s appeal and her driver’s license was not
suspended based on an unreasonable refusal to submit to a chemical test.
Officer Kinney, with the prosecutor’s consent, sought review in the circuit court. MCL
257.625f(8). After hearing oral argument, the court stated:
And I would think . . . [that] if the Defendant had said I want a few
minutes to consider this myself after being given some relatively complicated
advisement of chemical right forms it would certainly be unreasonable to not
allow somebody a chance to reflect upon what they have just been told. By the
same token it doesn’t seem to me to be reasonable to preclude that person from
contacting an attorney as long as it didn’t take a great deal of time and as long as
it was within the standard of reasonableness.
***
So I don’t think the hearing officer is saying you have a right to have a
lawyer. They [sic] are saying that you would have at least the right to have an
opportunity to reflect upon the advice that you were just given and perhaps talk to
legal—obtain legal counsel.
Now, if she had made that effort and wasn’t able to get ahold [sic] of
somebody or took an inordinate amount of time, then it seems to me that would be
a refusal. But that’s not what happened here. And I can’t find that there was an
abuse of discretion on the part of the hearing officer.
Accordingly, the court entered an order affirming the hearing referee’s decision on July 26,
2004.
As recognized by both the hearing referee and the lower court, there is no right to consult
with counsel prior to taking a Breathalyzer test. Ann Arbor v McCleary, 228 Mich App 674,
678-679; 579 NW2d 460 (1998). But where a defendant places conditions on his or her
submission to a breath test, the lack of submission is treated as a refusal. Collins v Secretary of
State, 384 Mich 656, 668; 187 NW2d 423 (1971). The question then presented is whether the
defendant’s refusal to submit to a breath test was reasonable under MCL 257.625f(4(c). Both the
trial court and the hearing officer concluded that it was reasonable for defendant to ask to speak
to an attorney before taking the test.
This Court addressed the reasonable refusal issue in Hall, supra, where the defendant was
arrested at approximately 7:00 p.m, held in the jail until 2:00 a.m., and denied the opportunity to
contact either an attorney or his wife during this time. In that case, this Court relied on Collins v
Secretary of State, 384 Mich 656, 668; 187 NW2d 423, 429 (1971), in which the Supreme Court
addressed the question whether the defendant’s refusal was reasonable. “The ultimate
determination of that case was based upon its circumstances and its facts but we find it
significant that when Collins was offered a breath test pursuant to the statute he was also granted
permission to call his attorney.” Hall, supra at 436. This Court concluded that although a
driver’s license proceeding is civil and not criminal, the significant consequences require
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application of the due process requirement of fundamental fairness. Id. at 438. This Court
stated:
In weighing the individual interest against the governmental interest, it is
suggested that to avoid the problems mentioned above, the governmental interest
is best served by allowing the suspect a phone call to his attorney. A caveat: We
are not suggesting a constitutional right to counsel—we are suggesting a
reasonable due process approach to a certain set of circumstances. We are not
unaware of the fact that the probative value of the test decreases with the delay in
taking it. Here, however, approximately one hour had already elapsed, and a five
minute telephone conversation with counsel would not constitute undue delay.
[Id. at 440.]
While this Court expressly disclaimed that it was holding that Hall had an unqualified right to
counsel, “[w]e do say that a stationhouse policy which prohibits a suspect from making a
telephone call does not constitute commendable police practice.” Id. at 441. Accordingly, this
Court reversed the suspension of the defendant’s license.
In the years since Hall was decided, no panel of this Court has seen fit to revisit its
holding, although its application has been limited to the right to make a telephone call before
taking the test. See City of Ann Arbor v McCleary, supra at 681. In light of Hall and McCleary,
the circuit court did not clearly err in affirming the DLAD hearing referee’s decision because it
was not contrary to law and was supported by competent, material and substantial evidence. I
would affirm.
/s/ E. Thomas Fitzgerald
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