Opinion
Docket No. 2,711.
Decided December 8, 1967.
Appeal from Recorder's Court of Detroit; Wood (Andrew C.), J. Submitted Division 1 April 7, 1967, at Lansing. (Docket No. 2,711.) Decided December 8, 1967.
Wilburn Egner was convicted of driving a motor vehicle while under the influence of intoxicating liquor. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.
Tauber Garon, for defendant.
On September 22, 1966, the defendant, Wilburn Egner, was tried in the recorder's court for the city of Detroit, traffic and ordinance division, in a nonjury trial on a charge of operating a motor vehicle while under the influence of intoxicating liquor. At trial the result of a breathalyzer test, adverse to the defendant, was admitted into evidence over defendant's objection. Defendant claims this was reversible error because there was insufficient showing that, after submitting to the breathalyzer test, he was advised that he had a right to have a person of his own choosing administer a blood test.
CLS 1961, § 257.625 (Stat Ann 1960 Rev § 9.2325).
The record shows that a police officer witness testified that before the defendant took the breathalyzer test he was advised that he could have his own doctor administer a chemical test to him. Defendant testified that while he was advised that he did not have to submit to the breathalyzer test, he was not advised that he could have an additional test administered by a person of his own choosing. This presented a question of fact for the trial judge to rule on. The court chose to believe the testimony of the police officer-witness and held that defendant was given the opportunity to call his own doctor to administer a chemical test to him. We find no error in this ruling of the trial court.
Further, for the reasons stated in People v. Church (1966), 5 Mich. App. 303; People v. Kerrigan (1967), 8 Mich. App. 216; People v. Collett (1967), 8 Mich. App. 419; and People v. Alford (1967), 8 Mich. App. 211, we hold that there is no requirement that the defendant, after submitting to a chemical test administered by a police officer, be advised that he has a right to have a person of his own choosing administer another chemical test.
Defendant next contends that the court erred in allowing the people to reopen their case after they had rested. As soon as the defendant was sworn and asked his name, the court made the following statement to the prosecutor: "As I get it you have elected not to introduce the results of the breathalyzer?" The people then moved to reopen the case and recalled the police officer who had previously testified that he had administered the breathalyzer test to the defendant. The witness was allowed to testify to the results of the test. We find no error in the court's ruling allowing the prosecution to reopen their case.
"It is the rule in criminal cases that the trial court in the exercise of sound discretion may reopen a case for the purpose of admitting testimony in behalf of either the prosecution or the defense. See People v. Blake, 157 Mich. 533; People v. Chimovitz, 237 Mich. 247; and People v. Eger, 299 Mich. 49." People v. Lay (1953), 336 Mich. 77, at p 83.
Affirmed.
LESINSKI, C.J., and FITZGERALD, J., concurred.