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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, UNPUBLISHED February 26, 2015

v No. 321823 Livingston Circuit Court GREGORY GRINIUS GREEN, LC No. 2013-021657-FH

Defendant-Appellee.

Before: O WENS , P.J., and M ARKEY and S ERVITTO , JJ.

P ER C URIAM

. Plaintiff appeals by leave granted the trial court’s order gra nting defendant’s motion to retest a blood sample given by him following a traffic accident . The order required the Michigan State Police Forensic Laboratory to retest the same vial of blo od that had been previously tested, using the same analyst. Because there is no basis in MCL 257.6 25a for the retesting of the blood sample and MCR 6.201 provides the trial court only with the aut hority to order that defendant be given the opportunity to test the vial of blood, we reverse and remand to the trial court for proceedings not otherwise inconsistent with this opinion.

In the early morning hours of July 13, 2013, defendant was ope rating a motorcycle on East Grand River Avenue in Howell, Michigan when he allegedly s truck and seriously injured a pedestrian. Police arrived on the scene and, after learning th at defendant was coming from a bar where he had earlier consumed alcohol and suspecting that defen dant was under the influence of alcohol, they arrested defendant and he consented to a blood te st. Police transported defendant to the hospital where emergency room personnel drew two vials o f his blood and two tests conducted by the Michigan State Police on one of the vials resu lted in readings of .092 grams of alcohol per 100 milliliters of blood. Defendant is currently c harged with operating while intoxicated causing serious injury, MCL 257.625(5), and carryin g a concealed weapon with a blood alcohol content of .08 or m ore but less than .10 grams, M CL 28.425k(2)(b).

Defendant moved to have the original sample of his blood retes ted by the Michigan State Police (“MSP”) laboratory by th e same analyst that conducted th e first test, arguing that there was no foundation to establish that the blood draw was the prod uct of reliable principles and methods, that he would have to pay for an independent test of t he second vial of blood, and that a test of the second vial of blood rather than of the same sample would not be a similar sample. The trial court granted defendant’s motion, opining that it was not that great of an imposition on-2- the People. In denying plaintiff’s motion for reconsideration, the trial court explained that defendant was entitled to a retes t of the first vial of blood u nder the general rules of discovery in order to support his defense challenging the prior guidelines f or measuring blood-alcohol content and the irregularity of the blood draw. The trial court explai ned that defendant’s challenges to the prior blood test were base d upon guidelines that were in pl ace at the time of the test but have now been changed and that due to the irregularity of the blood draw, a test of the second vial would not adequately address his challenge to the validity of t he particular result that was initially reported.

On appeal, plaintiff first cont ends that the trial court’s ord er does not comply with the terms of MCL 257.625a. We agree.

A trial court’s interpretation of statutes and court rules is reviewed de novo. People v Lee , 489 Mich 289, 295; 803 NW2d 165 (2011). A trial court’s deci sion regarding discovery is reviewed for an abuse of discretion. People v Phillips , 468 Mich 583, 587; 663 NW2d 463 (2003). A trial court abuses its discretion when its decision falls beyond the range of principled
outcomes. People v Feezel , 486 Mich 184, 192; 783 NW2d 67 (2010).

MCL 257.625a(6) states, in part, the following:

(6) The following provisions app ly with respect to chemical te sts and analysis of a person’s blood, urin e, or breath, other than prel iminary chemical breath analysis:

(a) The amount of alcohol or pre sence of a controlled substanc e or both in a driver’s blood or urine or the amount of alcohol in a person’ s breath at the time alleged as shown by chemical ana lysis of the person’s blood, ur ine, or breath is admissible into evidence in any civil or criminal proceeding an d is presumed to be the same as at the time the person operated the vehicle.

(b) 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 t he right to demand that a person of his or her ow n choosing administer 1 of the ch emical tests.

( ii ) The results of the test are admissible in a judicial proceedi ng as provided under this act and will be considered with other admis sible 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.

* * *

(d) A chemical test described in this subsection shall be admi nistered at the request of a peace officer having reasonable grounds to bel ieve the person has-3- committed a crime described in section 625c(1). A person who t akes a chemical test administered at a peace officer’s request as provided in t his section shall be given a reasonable opportunity to have a person of his or her o wn choosing administer 1 of the chemical tests described in this subsection within a reasonable time after his or her detention. The test results are admissib le and shall be considered with other admissible evidence in determining the de fendant’s innocence or guilt. If the person charged is administered a ch emical test by a person of his or her own choosing, the person charged is respon sible for obtaining a chemical analysis of the test sample.

(e) If, after an accident, the driver of a vehicle involved in the accident is transported to a medical facility and a sample of the driver’s blood is withdrawn at that time for medical treatme nt, the results of a chemical a nalysis of that sample are admissible in any civil or c riminal proceeding to show the amount of alcohol or presence of a controlled substa nce or both in the person’s b lood at the time alleged, regardless of whether the person had been offered or h ad refused a chemical test. The medical facility or person performing the c hemical analysis shall disclose the results of the analysis to a prosecuting att orney who requests the results for use in a criminal prosecution as provided in this s ubdivision. A medical facility or person disclosing information in compliance with this subsection is not civilly or crim inally liable for making the d isclosure.

“[T]he goal of statutory int erpretation is to ascertain and give effect to the intent of the Legislature. The touchstone of le gislative intent is the statu te’s language. If the statute’s language is clear and unambiguous, we assume that the Legislatu re intended its plain meaning and we enforce the statute as written.” People v Harris , 495 Mich 120, 126-127; 845 NW2d 477 (2014). “Stated differently, a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from t he words of the statute itself.” People v Phillips , 469 Mich 390, 395; 666 NW2d 657 (2003) (citation and internal quotation marks omitted).

MCL 257.625a “must be read in its entirety to determine legisl ative intent.” Collins v Secretary of State , 19 Mich App 498, 502; 172 NW2d 879 (1969). This Court has ex pressly stated that MCL 257.625a “governs th e admissibility of chemical tests of drinking and driving cases.” People v Campbell , 236 Mich App 490, 494; 601 NW2d 114 (1999). “[T]he Legislatu re enacted the implied consent statute to enable the state to obta in convictions without being unduly burdened in the proof of the crime.” Id . at 498.

It is obvious that the language used in MCL 257.625a(6) grants a defendant a reasonable opportunity to have a person of his or her own choosing adminis ter a chemical test of his or her blood sample, and that he or she is responsible for obtaining a chemical analysis of the test sample. Defendant argues that “[b]y definition, that includes a forensic scientist at the Michigan State Police laboratory.” However, there is no indication that the MSP Laboratory, an investigating agency of the Michigan State Police, offers chemi cal testing services to private individuals or is able to bill for such services. Though defen dant may want to “choose” a specific analyst at the MSP Lab, the trial court lacks authorit y to compel a state agency to perform services it does not offer.-4- Further, both the Supreme Court and this Court have consistent ly acknowledged that MCL 257.625a(6) grants a defendant a right to obtain an independent chemical test. See People v Anstey , 476 Mich 436, 441; 719 NW2d 579 (2006); People v Reid , 292 Mich App 508, 510; 810 NW2d 391 (2011). Requiring the “same lab analyst at the sa me lab” to retest the “same vial” of blood is not indepe ndent from the first test.

In addition, “Absent a showing of suppression of evidence, int entional misconduct, or bad faith, the prosecutor and the police are not required to te st evidence to accord a defendant due process.” People v Coy , 258 Mich App 1, 21; 669 NW2d 831 (2003). “Although the prosecution bears the burden of proving guilt beyond a reasonab le doubt in a criminal trial, it need not negate every theory con sistent with defendant’s innoce nce, nor exhaust all scientific means at its disposal.” Id . (citations omitted). “[N]either the prosecution nor the defe nse has an affirmative duty to search for evi dence to aid in the other’s c ase.” Id

. In this case, the trial court’s order requires the prosecution and the police to do exactly what Coy expressly states the prosecution and police are not required to do. Not only does the trial court order require the MSP Lab to test evidence merely a t defendant’s request, but it requires MSP Lab to do the exact same test at the same lab usin g the same analyst. This improperly requires the police t o test evidence that may aid de fendant’s case.

In People v Stephens , 58 Mich App 701, 705; 228 NW2d 527 (1975), the defendant argued that the police department’s failure to test a weapon fo r fingerprints was equivalent to suppression of evidence, “since exculpatory evidence that might have been developed through that testing procedure was lost.” Id . This Court recognized that th ere is a “crucial distinction .

. . between failing to disclose evidence that has been developed an d failing to develop evidence . . . .” Id . This Court concluded that deciding not to test for fingerpri nts “is a legitimate police investigative decision.” Id . at 706.

Application of the “cr ucial distinction” in Stephens to the facts of this case could not be clearer. Although plaintiff is re quired to disclose evidence t hat has been developed, it is not required to develop evidence, including testing a blood sample for a third time, in hopes that it may provide defendant with a defense.

Defendant nevertheless argues that the trial court has the aut hority to order retesting of defendant’s blood sample under MCR 6.201 and “longstanding Mich igan case law.” In denying plaintiff’s motion for reconsider ation, the trial court also ci ted to MCR 6.201(6), which states, in part, that “[o]n good cause shown, the court may order that a p arty be given the opportunity to test without destruction any tangible physical evidence.” The relevant language in this rule is “a party be given the opportunity to test.” MCR 6.201(6) does not provide the trial court with the authority to order the MSP to retest its own evidence. Rather, it merely provides the court with the authority to provide defendant the opportunity to test any tangible physical evidence. This reading is also consistent with MCL 257.625a(6). Thus, the tri al court may order only that defendant be given the opportunity to retest the first vial of blood. It abused its discretion in ordering otherwise. As with any other evidence, any potential discrepancies in the results obtained is subject to argument by the parties.

Given our conclusion, we need not address plaintiff’s remainin g arguments on appeal.-5- We reverse the trial court’s order that the same vial of blood that was first tested by the MSP lab be retested by the MSP using the same analyst and reman d for proceedings not inconsistent with this opinion. W e do not retain jurisdiction.

/s/ Donald S. Owens /s/ Jane E. Markey /s/ Deborah A. Servitto