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No. 128368
| People of the State of Michigan, |
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Aaron J. Mead |
Plaintiff-Appellant, |
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vs (Appeal from Ct of Appeals)
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(Berrien - Butzbaugh, A.) |
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| Mark Joseph Anstey, |
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Gail O. Rodwan |
| Defendant-Appellee. |
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| ______________________________________ |
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Plaintiff-Appellant's Brief on Appeal>>
Defendant-Appellee's Brief on Appeal>>
Background
Officer Shane Daniel arrested Mark Joseph Anstey for operating a motor vehicle with an unlawful blood alcohol level and while under the influence of liquor. A breathalyzer test performed at the Berrien County Jail indicated that Anstey’s blood alcohol level was .21 percent. Daniel informed Anstey of his right, pursuant to MCL 257.625a(6)(d), to obtain an independent chemical test after taking the chemical test administered by police. Anstey asked Daniel to take him to South Bend Memorial Hospital in Indiana for the independent chemical test, which the officer refused to do. Anstey then asked to be taken to Watervliet Community Hospital, located about 15 or 20 minutes from the Berrien County Jail. Daniel refused this second request, but offered to take Anstey to Lakeland Hospital, which was located only a few blocks from the jail. Anstey refused that offer and never obtained an independent test of his alcohol level. He filed a motion to dismiss the charges brought against him, arguing that dismissal was the only proper remedy for the officer’s refusal to allow him to obtain an independent chemical test at a hospital of his choosing. The district court judge concluded that Anstey’s request to be taken to South Bend Memorial Hospital was unreasonable because such a trip would have required Daniel to travel to a state where he had no jurisdiction. But the judge found that the police were unreasonable in refusing to take Anstey to Watervliet Community Hospital. The judge did not dismiss the pending criminal charges, but did rule that evidence of the breathalyzer test would be excluded from evidence. Anstey appealed to the circuit court, arguing that the proper remedy was dismissal of the charges. The circuit court ruled in his favor, reversing the district court and remanding the case to the district court for entry of an order dismissing the charges. The prosecutor appealed to the Court of Appeals, which affirmed in an unpublished opinion. The prosecutor appeals.
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