Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  April 29, 2011                                                                   Robert P. Young, Jr.,
                                                                                             Chief Justice

  142148                                                                           Michael F. Cavanagh
                                                                                         Marilyn Kelly
                                                                                   Stephen J. Markman
                                                                                   Diane M. Hathaway
  PEOPLE OF THE STATE OF MICHIGAN,                                                     Mary Beth Kelly
            Plaintiff-Appellee,                                                        Brian K. Zahra,
                                                                                                  Justices
  v                                                      SC: 142148
                                                         COA: 300129
  WAYNE KYLE GREGG,                                      Clinton CC: 10-008568-FH
             Defendant-Appellant.
  _________________________________________/

        On order of the Court, the application for leave to appeal the October 14, 2010
  order of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

          CAVANAGH, J., would grant the application for leave to appeal.

          MARILYN KELLY, J. (dissenting).

         I dissent from the Court’s order denying defendant’s application for leave to
  appeal. By assessing 10 points for OV 19 (interference with the administration of
  justice), the trial court erroneously punished defendant for exercising his constitutional
  and statutory rights.1 Accordingly, I would vacate defendant’s sentence and remand this
  case to the trial court for resentencing.

         The police stopped defendant for erratic driving and driving with no taillights.
  When asked if he had been drinking, defendant stated that he had consumed “two beers.”
  The police officer administered field sobriety tests, which defendant failed. The officer
  also administered a preliminary chemical breath analysis, the results of which indicated
  that defendant had a blood alcohol content of .166. The officer transported defendant to
  the Clinton County jail, where defendant refused to submit to a chemical breath test.2

  1
      MCL 777.49.
  2
    A preliminary chemical breath analysis, commonly known as a PBT, is distinct from a
  chemical breath test. Preliminary chemical breath analyses are administered roadside
  when a suspected offender is pulled over and are used to establish probable cause to
  arrest an offender for drunk driving. The results of a preliminary chemical breath
  analysis are inadmissible in court as substantive evidence of intoxication. See MCL
                                                                                          2


        Defendant pled guilty to OUIL-third. At sentencing, the trial judge assessed 10
points for OV 19 based on defendant’s refusal to submit to a chemical breath test at the
police station. The court imposed a sentence of five years of probation, with the first year
in jail. The Court of Appeals denied defendant’s application for leave to appeal.

       Defendant argues that the trial judge erroneously scored 10 points for OV 19.
MCL 777.49 sets forth the criteria for scoring OV 19. It provides, “Offense variable 19
is threat to the security of a penal institution or court or interference with the
administration of justice or the rendering of emergency services.” Ten points may be
scored when “the offender . . . interfered with or attempted to interfere with the
administration of justice.”

       The Fourth Amendment to the United States constitution protects the people from
unreasonable searches and seizures.3 The Michigan constitution contains a similar
protection.4 Both constitutional provisions require a warrant supported by probable cause
for searches and seizures to be reasonable, and therefore constitutional, unless an
exception to the warrant requirement applies.5

       MCL 257.625c provides that a person who operates a vehicle upon a public
highway is considered to have given implied consent to chemical tests of his or her blood,
breath, or urine. However, this implied consent is revocable under the protections
afforded by the Fourth Amendment, just like consent to any other search. Indeed, “[i]n
conducting any consent search, the authorities are limited by the terms of the consent.
Consent may be withdrawn or limited at any time prior to the completion of the search.”6

        This axiomatic right is at the very core of the Fourth Amendment. Thus,
defendant had a constitutional right to refuse the warrantless chemical breath test. By
definition, his assertion of this constitutional right cannot amount to an interference with
the administration of justice. Accordingly, the trial judge erroneously scored OV 19 at 10
points.



257.625a(2)(b). By contrast, chemical breath tests are performed after an offender has
been arrested and are admissible in court as evidence of intoxication. See MCL
257.625a(6)(a) and (d).
3
    US Const, Am IV.
4
    Const 1963, art 1, § 11.
5
    Katz v United States, 389 US 347, 357 (1967).
6
    People v Powell, 199 Mich App 492, 496-497 (1993) (citations omitted).
                                                                                           3

       Moreover, assuming arguendo that defendant did not have a constitutional right to
refuse a chemical test, the Legislature nonetheless provided drivers with several statutory
rights with respect to chemical tests. In this regard, MCL 257.625a(6)(b) provides:

               A person arrested for a crime described in section 625c(1) shall be
         advised of all of the following:

                       (i) If he or she takes a chemical test of his or her blood,
                urine, or breath administered at the request of a peace officer,
                he or she has the right to demand that a person of his or her
                own choosing administer 1 of the chemical tests.

                       (ii) The results of the test are admissible in a judicial
                proceeding as provided under this act and will be considered
                with other admissible evidence in determining the defendant’s
                innocence or guilt.

                       (iii) He or she is responsible for obtaining a chemical
                analysis of a test sample obtained at his or her own request.

                       (iv) If he or she refuses the request of a peace officer
                to take a test described in subparagraph (i), a test shall not be
                given without a court order, but the peace officer may seek to
                obtain a court order.

                       (v) Refusing a peace officer’s request to take a test
                described in subparagraph (i) will result in the suspension of
                his or her operator’s or chauffer’s license and . . . in the
                addition of 6 points to his or her driver record.

       By its terms, this statute gives drivers the option of (1) taking a test as requested
by an officer, (2) taking the requested test and then procuring his or her own test, or (3)
refusing a test and having his or her license suspended.7

       Likewise, subsection (iv) explicitly provides that, if a person refuses the request of
an officer to take a chemical breath test, a test shall not be given without a court order.8
This provision effectively codifies the Fourth Amendment protection from a warrantless

7
    See also Collins v Secretary of State, 384 Mich 656, 667 (1971).
8
  MCL 257.625a(6)(b)(iv). See also People v Snyder, 181 Mich App 768, 771 (1989)
(“We conclude only that a search warrant is encompassed within the term ‘court order’
for purposes of this statute . . . .”).
                                                                                                               4

search and the principle that an officer may not lawfully compel a chemical breath test
without a warrant. Thus, not only did defendant have a constitutional right to refuse a
warrantless chemical test, he had a statutory right to refuse it.

        Finally, even if defendant had no constitutional or statutory right to refuse a
chemical breath test, differences in the relevant statutory language compel a finding that a
driver may refuse such a test. As previously noted, preliminary chemical breath analyses
are distinct from chemical breath tests. The Legislature provided that preliminary
chemical breath analyses are mandatory. MCL 257.625a(2) indicates that “a peace
officer . . . may require [a driver] to submit to a preliminary chemical breath analysis.”
(Emphasis added). Similarly, MCL 257.625a(4) provides that a person who refuses to
submit to a preliminary chemical breath analysis “shall be advised that refusing . . . to
take a test . . . is a misdemeanor . . . .” (Emphasis added).

       By contrast, the provisions governing chemical breath tests do not include
mandatory language. Indeed, MCL 257.625a(6)(b)(i) states that a peace officer may
“request” submission to a chemical test. A “request,” by definition, may be denied. And
subsections (6)(b)(i)-(iv) provide drivers with several alternative options in response to a
request for a chemical breath test. Had the Legislature intended to mandate compliance
with chemical breath tests, it could have incorporated compulsory language in MCL
257.625a(6), just as it did in the provisions governing preliminary chemical breath
analyses. It chose not to do so.

       Additionally, the Legislature prescribed criminal penalties for failure to comply
with a preliminary breath analysis. Yet it prescribed a civil penalty—license
suspension—for failure to submit to a chemical breath test. This is further evidence that
refusal to comply with a chemical breath test does not constitute a criminal interference
with the administration of justice such that points may be assessed under OV 19.

       This Court’s refusal to correct the trial court’s erroneous scoring of OV 19 ignores
basic tenets of Fourth Amendment jurisprudence. It disregards the language of MCL
257.625a, and sanctions a heightened punishment for an offender who exercised his or
her constitutional and statutory rights. Although defendant’s jail term has ended and he
has been released on probation, he remains a ward of the Department of Corrections.
Thus, he is entitled to resentencing.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         April 29, 2011                      _________________________________________
       h0426                                                                 Clerk
