                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 21, 2015
               Plaintiff-Appellee,

v                                                                   No. 320947
                                                                    Oakland Circuit Court
ALISON BRIDGET PARKE,                                               LC No. 2013-245872-FH

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and SAWYER and BORRELLO, JJ.

PER CURIAM.

        Defendant was charged with one count of operating a motor vehicle while intoxicated,
MCL 257.625(1). A jury convicted defendant of the lesser offense of driving while visibly
impaired, third offense. MCL 257.625(3) and 11(c). The trial court sentenced defendant to three
years’ probation, with 90 days to be served in jail.1 Defendant appeals her conviction as of right.
For the reasons set forth in this opinion, we affirm.

                                            I. FACTS

        Defendant was charged with operating a vehicle while intoxicated, third offense, MCL
257.625(1) and (9)(c), for an incident that occurred on February 16, 2013. “Operating while
intoxicated” consists of driving under the influence of alcohol or having an unlawful blood-
alcohol level. MCL 257.625(1)(a), (b), and (c).

        Matthew Gorman, a Rochester police officer, testified that he was on routine patrol on the
night of February 15-16, 2013. Sometime between 2:00 and 3:00 a.m., Gorman was entering the
eastbound lane of University Drive when he saw a red Jeep in the westbound lane with its
headlights off. Gorman turned around and effectuated a traffic stop. In following the vehicle,
Gorman saw that the taillights were off, but did not notice any other problems.




1
  Defendant also pleaded guilty to driving with a suspended license, MCL 257.904(1). That
conviction is not at issue here.


                                                -1-
       Gorman found two people in the car; defendant was in the driver’s seat. In speaking to
defendant, Gorman detected the odor of alcohol “coming from her person and from the vehicle.”
Defendant’s eyes were bloodshot and watery, her face was flushed, and her speech was slurred.
Defendant admitted that she had consumed alcohol sometime earlier in the evening. Gorman
then administered field sobriety tests.

        During the horizontal gaze nystagmus test, defendant’s eyes showed “distinct”
nystagmus. Defendant was able to perform the alphabet test and the counting-backward test, but
failed the standing-on-one-leg-while-counting test and the walking-heel-to-toe test. Gorman
asked defendant “if she felt safe to be driving” and she said that while she thought that she was
over the legal limit, “she felt comfortable enough to drive.” Gorman arrested defendant for
drunk driving and transported her to the police station. Defendant’s booking photograph and the
recording of the stop captured by Gorman’s dashboard camera were admitted into evidence and
the recording was played for the jury.

       At the station, Gorman advised defendant of her chemical test rights and asked if she
would submit to a blood test. Defendant refused, then consented, then refused again, so Gorman
obtained a warrant for a blood draw. After the warrant was issued, defendant consented to the
blood draw. Pursuant to department policy, Kirk Holcomb, a paramedic from the fire
department, came over and obtained samples of defendant’s blood for testing.2 The samples
were sealed in a mailing box and sent to the Michigan State Police lab for testing.

        Monica Bugeja, a scientist in the toxicology unit of the Michigan State Police forensic
science lab, was qualified as an expert in her field. She received the blood samples collected by
Holcomb on February 25, 2013 and tested them on February 27. There were two samples, one
marked as having been drawn at 3:52 a.m., and one marked as having been drawn at 3:53 a.m.
Bugeja tested the first sample in two different instruments “[j]ust as a double check.” One
instrument registered 0.094 grams of alcohol per hundred milliliters of blood, and the other
registered 0.095 grams of alcohol per hundred milliliters of blood. Either way, defendant’s
blood exceeded the legal limit of 0.08 grams of alcohol per hundred milliliters of blood.

       After Holcomb testified, but before the prosecutor offered the blood-test results into
evidence, defendant objected to their admission on the ground that a proper foundation had not
been established in accordance with the nine-part test set forth in People v Cords, 75 Mich App
415, 427; 254 NW2d 911 (1977), and that Holcomb was not a person authorized to draw the
blood under MCL 257.625a(6)(c). The trial court initially sustained the objection.

       The following day, the prosecutor moved for reconsideration, arguing in part that Cords
and MCL 257.625a(6)(c) both relate to blood drawn under the implied consent statute, whereas
defendant’s blood was drawn pursuant to a search warrant. The warrant, which stated that the
blood sample “be taken pursuant to MCL 257.625a(6)(c),” specifically identified “the Rochester
Fire Department, or a licensed physician, or an individual operating under the delegation of a


2
  Holcomb, a licensed emergency medical technician and paramedic, testified that he drew
samples of defendant’s blood in an ambulance and turned them over to Gorman.


                                               -2-
licensed physician” as persons authorized to draw defendant’s blood. Because a warrant was
obtained, MCL 257.625a(6)(c) was inapplicable pursuant to People v Callon, 256 Mich App
312, 322-323; 662 NW2d 501 (2003).

       Upon reconsideration, the trial court overruled the objection, stating:

              Whether or not this Court agrees or disagrees with the analysis of the
       Court of Appeals is not relevant. What is relevant is whether or not it applies in
       connection with this case. I do not see how it is distinguishable in a material way
       from what’s before the Court. I agree with the People that they have laid a
       foundation that this blood draw was taken pursuant to the warrant, the warrant is
       not materially different than the one that is in the Callon case.

               Therefore, the question is one of constitutionality of the . . . warrant, and
       there has really been no challenge with regard to probable cause or the other
       indicia of reliability, or admissibility, other than the technical requirements, which
       the Callon case says this court is not to consider, and therefore, I will reverse my
       ruling and allow the blood draw to be entered.

       Defendant was convicted and sentenced as set forth above and she appeals as of right.

                                          II. ANALYSIS

       Defendant first argues that the trial court erred in admitting her blood-test results into
evidence because the blood test was not obtained in compliance with MCL 257.625a(6)(c).

        We review a trial court’s decision regarding the admission of evidence for an abuse of
discretion. People v Hine, 467 Mich 242, 250; 650 NW2d 659 (2002). A trial court’s decision
concerning whether a proper foundation was established for the admission of evidence is also
reviewed for an abuse of discretion. People v Ford, 262 Mich App 443, 460; 687 NW2d 119
(2004). “[I]t is an abuse of discretion to admit evidence that is inadmissible as a matter of law.”
People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). “When the decision regarding the
admission of evidence involves a preliminary question of law, such as whether a statute or rule
of evidence precludes admissibility of the evidence, the issue is reviewed de novo.” People v
Washington, 468 Mich 667, 670-671; 664 NW2d 203 (2003).

       A person who operates a vehicle upon the open road “is considered to have given consent
to the chemical tests of his or her blood, breath, or urine for the purpose of determining the
amount of alcohol . . . in his or her blood or urine or the amount of alcohol in his or her breath” if
the person is arrested for a violation of various statutes, including § 625(1). MCL 257.625c(1).
“The tests shall be administered as provided in section 625a(6).” MCL 257.625c(3). Section
625a(6)(c) provides in relevant part as follows:

                Only a licensed physician, or an individual operating under the delegation
       of a licensed physician under . . . MCL 333.16215, qualified to withdraw blood
       and acting in a medical environment, may withdraw blood at a peace officer’s
       request to determine the amount of alcohol . . . in the person’s blood, as provided
       in this subsection.

                                                 -3-
        At trial, defendant argued that the paramedic who withdrew her blood did not meet that
requirement and that other foundational facts had not been established. The trial court initially
excluded the evidence, but reversed its ruling and admitted the evidence in light of Callon, 256
Mich App at 312. In Callon, this Court held that where a defendant refuses a chemical test and
her blood is drawn pursuant to a search warrant, § 625a(6)(c) “does not govern admissibility of
the test results.” Id. at 322-323. See also Manko v Root, 190 Mich App 702, 704; 476 NW2d
776 (1991) (explaining that “[w]hen a blood sample is taken pursuant to a search warrant, the
issue of consent is removed, and the implied consent statute is not applicable.”)

        Taken together, these cases establish that where, as here, the defendant’s blood is drawn
pursuant to a search warrant rather than pursuant to the implied-consent statute, the blood need
not be drawn by a person designated in § 625a(6)(c).3 Callon, 256 Mich App at 322-323.
However, the authentication or identification of evidence is a condition precedent to its
admission, MRE 901(a), and when the admissibility of evidence is disputed, “the burden of
establishing a proper foundation rests with the party seeking admission.” In re Brock, 193 Mich
App 652, 669; 485 NW2d 110 (1992), rev’d on other grounds 442 Mich 101 (1993). The proper
foundation that must be established for admission of blood-test results is that outlined in Gard v
Mich Produce Haulers, 20 Mich App 402, 407-408; 174 NW2d 73 (1969) and People v Cords,
75 Mich App 415, 428; 254 NW2d 911 (1977).4 Specifically, the following foundational
requirements are necessary “for admission of the results of a blood sample analysis” into
evidence:

              “T]he party seeking introduction must show (1) that the blood was timely
       taken (2) from a particular identified body (3) by an authorized licensed
       physician, medical technologist, or registered nurse designated by a licensed
       physician, (4) that the instruments used were sterile, (5) that the blood taken was
       properly preserved or kept, (6) and labeled, and (7) if transported or sent, the
       method and procedures used therein, (8) the method and procedures used in
       conducting the test, and (9) that the identity of the person or persons under whose
       supervision the tests were conducted be established.” [Gard, 20 Mich App at
       407-408, quoting Lessenhop v Norton, 261 Iowa 44, 52-53; 153 NW2d 107
       (1967) (citation omitted).]

Accordingly, we consider whether a proper foundation was established. Of the relevant factors,
defendant challenges factors (3) through (7).


3
 We reject defendant’s claim that her decision to consent to the blood draw after the warrant was
obtained somehow nullified the warrant and brought the case back within the ambit of the
implied-consent statute. Once the warrant was secured, defendant’s blood was to be obtained
pursuant to the warrant irrespective of whether defendant consented. Moreover, defendant does
not brief the merits of this claim or support it by citation to applicable authority.
4
 The trial court erred to the extent that it held otherwise. However, this Court will not reverse
where the trial court reaches the right result for the wrong reason. Coates v Bastian Bros, Inc,
276 Mich App 498, 508-509; 741 NW2d 539 (2007).


                                               -4-
        The search warrant authorized the blood to be drawn by someone from the Rochester Fire
Department. The arresting officer, Gorman, testified that the blood is collected and packaged
using a standard kit provided by the Michigan State Police. It contains an information form, an
iodine packet for cleaning the injection site of a blood draw, vials for blood samples, cups for
urine samples, labels for marking the sample containers, and a plastic bag for packaging the
labeled containers. Once the samples are collected, the completed information sheet and sample
containers are placed in the box and the box is sealed with a special “kit shipping seal.”
Holcomb, a licensed paramedic, drew the blood from defendant. He testified that his paramedic
license is a “medical license that allows [him] to treat people” and qualifies him to draw blood,
and that “[b]lood draws are entailed under the paramedic licensure.” Holcomb used sterile
equipment and sterilized defendant’s arm using the iodine packet. The blood flowed directly
through the needle into the vials. Once the vials are sealed, they were tipped back and forth
several times to distribute a powder throughout the sample. Bugeja, a forensic chemist, testified
that the powder consists of two chemical agents, one that prevents clotting and one that acts as a
preservative to prevent spoilage. Holcomb gave the filled vials to Gorman, who packaged
everything in the box, affixed the seal, and placed it in the collection area for outgoing mail.
There was no testimony about the shipping methods used, although Bugeja said the boxes are
typically sent by first-class mail. The box sealed by Gorman was delivered to the lab on
February 25, 2013. Bugeja testified that the box arrived with the seal intact and defendant’s
name was on the enclosed information sheet and on the vials. The vials were refrigerated until
February 27, when the blood was tested.

       These facts and circumstances were sufficient to establish that the blood was drawn from
defendant in a sterile manner by a person trained to perform the procedure and that the blood
drawn from defendant was the same blood that was tested by Bugeja. Because there was a
proper foundation for the admission of the evidence, the trial court did not abuse its discretion in
admitting the blood test results.

        Defendant next argues that there were two errors with respect to her sentencing. First,
defendant argues that the trial court did not properly respond to a challenge to the accuracy of the
presentence report, which indicated that she had a pending charge in district court for driving
with a suspended license. Specifically, the first page of the presentence report contains a space
for information regarding pending charges. It indicated that defendant had a pending charge of
driving with a suspended license in the 52-4 District Court, LC No. 13-005684, for an incident
that occurred on December 12, 2013. This information was repeated in the section detailing
defendant’s criminal history.

       At sentencing, defense counsel explained that defendant came to be charged with the
offense because her conviction in this case was incorrectly reported by the circuit court,
apparently causing her license to be suspended. The error in the reporting of her conviction had
been corrected and thus defendant expected that the pending charge would be resolved in her
favor when she appeared in the district court. However, the fact that defendant had an
explanation for, and defense to the pending charge, did not mean that she did not have a pending
charge. Thus, there was no challenge to resolve.

       Second, defendant contends that the $500 fine included in the judgment of sentence
should be stricken because it was not ordered by the trial court at sentencing. However, the

                                                -5-
sentencing transcript clearly indicates that, among other fees, the trial court ordered defendant to
pay “a fine of five hundred dollars ($500.00).” Thus, there is no merit to defendant’s argument
that the trial court never actually imposed a $500 fine.

       Affirmed.




                                                             /s/ Joel P. Hoekstra
                                                             /s/ David H. Sawyer
                                                             /s/ Stephen L. Borrello




                                                -6-
