Harbison v. Secretary of State

147 Mich. App. 63 (1985) 383 N.W.2d 123 HARBISON v. SECRETARY OF STATE Docket No. 76787. Michigan Court of Appeals. Decided August 28, 1985. Robert A. Hadous, for plaintiff. Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and E. David Brockman and David K. Foust, Assistants Attorney General, for the Secretary of State. Before: V.J. BRENNAN, P.J., and T.M. BURNS and C.M. FORSTER,[*] JJ. PER CURIAM. Arthur Lee Harbison appeals as of right from a circuit court order affirming a decision of the Secretary of State, pursuant to MCL 257.625(f); MSA 9.2325(6), to suspend his driver's license for six months for an unreasonable refusal to take a breath-analysis test. He claims that the decisions of the circuit court and the Secretary of State were inconsistent with the rule stated by this Court in People v Castle, 108 Mich App 353; 310 NW2d 379 (1981). In Castle, the defendant initially refused to take the test without first consulting with his attorney. The attorney arrived at the police station 70 minutes later and, after consulting with the defendant, requested that a breath-analysis test be administered. Relying on a standard departmental policy, the police refused to administer a test because it had not been requested within one hour of the initial refusal. Defendant had not previously *65 been informed of this policy. This Court held, at 108 Mich App 357: "Pursuant to the statute, any person charged with driving a vehicle while under the influence of intoxicating liquor shall be informed: (1) he has a right to demand a test, (2) if he takes a chemical test administered at the request of a police officer he may have a person of his own choosing administer a test, (3) he has the option to take only the breath test, and (4) he has a right to refuse the test and the consequences of such a refusal. "We are guided by these statutory requirements to hold that any person charged with DUIL must be informed of police regulations and rules, if any, that materially affect him to insure that the accused has an opportunity to make an informed decision. This is particularly so when one considers the impact of the choice and the fact that the person arrested does not have the assistance of counsel in deciding whether to submit to a test. See Holmberg v 54-A Judicial Dist Judge, 60 Mich App 757; 231 NW2d 543 (1975). "In this case, defendant was deprived of the opportunity to make a knowing choice of whether to submit to the test when police failed to inform him timely of material departmental policy. We do not intimate an opinion in this decision as to the propriety of the departmental policy. We do say that police policy which prohibits a defendant from demanding a chemical test after a prescribed time must first be explained to the defendant, enabling him to make an informed decision." (Emphasis added.) Here, as in Castle, the department had a policy of not administering a breath-analysis test if it was not requested within one hour of an initial refusal. It is not disputed that Harbison was not informed of this policy. Even though Harbison thought that once he refused to take the test he could not change his mind, the police were under the obligation to tell *66 him of department policies. In fact, it is more than likely that, after thinking it over and after the initial trauma of arrest, he would have decided to change his mind. Reversed. C.M. FORSTER, J. (dissenting). I respectfully dissent. Here, in contrast to People v Castle, 108 Mich App 353; 310 NW2d 379 (1981), the failure of the police to tell Harbison about their one-hour policy was not material. In Castle, the defendant was lured into postponing his final decision until it was too late to take the test by the failure of the police to tell him of their one-hour policy. Here, Harbison claims to have thought that his initial decision was final. He never thought he could take the test later, never attempted to consult with an attorney, and never asked to take the test. On this record, the decision of the Secretary of State was consistent with the rule stated in Castle. The majority comments: "Even though Harbison thought that once he refused to take the test he could not change his mind, the police were under the obligation to tell him of department policies. In fact, it is more than likely that, after thinking it over and after the initial trauma of arrest, he would have decided to change his mind." I cannot agree that the police had to give Harbison an opportunity to change his mind after he initially refused to take the test. See MCL 257.625d; MSA 9.2325(4): "If a person refuses the request of a peace officer to submit to a chemical test offered pursuant to section 625a, a test shall not be given without a court order." In light of this statute, I question whether the *67 police had the authority to allow him to change his mind. See also Mackey v Montrym, 443 US 1; 99 S Ct 2612; 61 L Ed 2d 321 (1979), in which the Court found no due process violation in a Massachusetts statute which mandated suspension of drivers' licenses without a presuspension hearing for refusal to submit to a breath-analysis test upon arrest for driving while intoxicated. The Court pointed out, 443 US 14-15: "The allegedly `factual' dispute that he claims a constitutional right to raise and have determined by the Registrar prior to his suspension really presents questions of law; namely, whether the state court's subsequent finding that the police later refused to administer a breath-analysis test at Montrym's request is binding on the Registrar as a matter of collateral estoppel; and, if so, whether that finding undermines the validity of Montrym's suspension, which may well be justified under the statute solely on the basis of Montrym's initial refusal to take the breath-analysis test and notwithstanding the officer's subsequent refusal to honor Montrym's belated request for the test. The Commonwealth must have the authority, if it is to protect people from drunk drivers, to require that the breath-analysis test record the alcoholic content of the bloodstream at the earliest possible moment." (Emphasis added, footnote deleted). I take this opportunity to express my disagreement with the rule stated in Castle. The Castle Court explained its reasoning as follows, 108 Mich App 357: "The Legislature has provided an agonizing choice for one accused of DUIL. But the legislation does require that the tactical choice allowed be knowingly made. Pursuant to the statute, any person charged with driving a vehicle while under the influence of intoxicating liquor shall be informed: (1) he has a right to demand a *68 test, (2) if he takes a chemical test admisistered at the request of a police officer he may have a person of his own choosing administer a test, (3) he has the option to take only the breath test, and (4) he has a right to refuse the test and the consequences of such refusal. "We are guided by these statutory requirements to hold that any person charged with DUIL must be informed of police regulations and rules, if any, that materially affect him to insure that the accused has an opportunity to make an informed decision. This is particularly so when one considers the impact of the choice and the fact that the person arrested does not have the assistance of counsel in deciding whether to submit to a test. See, Holmberg v 54-A Judicial Dist Judge, 60 Mich App 757; 231 NW2d 543 (1975)." An established principle of statutory construction is that the express mention in a statute of one thing implies the exclusion of other similar things (expressio unius est exclusio alterius). See, for example, Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971). The Castle panel stood this principle on its head when the panel concluded that a statute listing certain rights of which a person charged with DUIL must be informed implicitly required that such a person also be informed of other matters not mentioned in the statute. The Castle rule cannot logically be derived from the statute on which it was ostensibly based. The Castle rule did not purport to be based on constitutional requirements of due process, and I cannot see how constitutional rights of due process could be said to support the Castle rule. Michigan statutes go far beyond the requirements of due process to afford protection to drivers who refuse to take chemical tests. See Mackey v Montrym, supra, and South Dakota v Neville, 459 US 553; 103 S Ct 916; 74 L Ed 2d 748 (1983). No authority has ever gone so far as to hold that a waiver of *69 rights must be prefaced by information concerning all rules and regulations which might materially affect the waiver. Compare, for example, the discussion in Guilty Plea Cases, 395 Mich 96, 121-124; 235 NW2d 132 (1975), of the information a defendant must be given to support a valid plea of guilty. The Castle rule merely makes it more difficult to suspend the licenses of intoxicated drivers without providing any significant offsetting advantages in fairness of the proceedings. The Castle rule is nothing more than judicial legislation. The majority decision in the case at bar is not controlled by Castle but is simply an unwarranted extension of that ruling. I would affirm. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment.