Clair Circuit Court LC No. 2016-001135-FH
Before: Riordan, P.J., and Ronayne Krause and Swartzle, JJ.
Court orders that the May 18, 2017 majority and concurring
opinions are hereby VACATED, and new majority and concurring
opinions are attached.
Michigan Court Rule 6.110(C), a district court is required to
conduct a preliminary examination "in accordance with
the Michigan Rules of Evidence, " including the rule
against hearsay (MRE 802). In 2014, the Legislature created a
statutory exception to this rule, whereby "[t]he rules
of evidence apply at the preliminary examination except"
that the hearsay rule does not preclude certain laboratory
reports from being admitted, among other things. MCL
766.11b(1). This statutory exception is not reflected in any
court rule, thereby creating an irreconcilable conflict
between the two.
resolve the conflict, we look to whether the subject matter
of the rule/statute is a procedural or substantive one. Under
our Constitution, a court rule will trump a statute when the
two irreconcilably conflict on a procedural matter. With
respect to a substantive matter, however, a statute will
trump a court rule. Neither the Supreme Court nor our Court
has yet addressed the issue of whether, during a preliminary
examination, a district court should preclude a laboratory
report as hearsay under MCR 6.110(C) and MRE 802 or, instead,
admit the report under the statutory hearsay exception in MCL
766.11b(1). As explained below, we conclude that the conflict
involves a substantive matter and, accordingly, a district
court should apply the statutory exception.
Timothy Parker was charged with operating while intoxicated
(OWI), MCL 257.625(1), driving with a suspended license, MCL
257.904, and possessing an open container of alcohol in a
vehicle, MCL 257.624a. At defendant's preliminary
examination, Officer Robert Jenkins testified that, on August
4, 2015, he was dispatched to the Harsens Island ferry to
respond to an OWI complaint. He arrived at the ferry at
approximately 12:45 a.m. and found defendant's running
vehicle parked at a stop sign with defendant sleeping in the
driver's seat. Officer Jenkins observed a box of wine on
the passenger seat and a glass containing ice and a liquid in
the center console. The officer testified that he knocked on
the window for approximately ten minutes before defendant
finally woke up. Defendant admitted he had been drinking and
stated that he was on his way to Harsens Island to go home.
Jenkins testified that defendant's speech was slurred,
his eyes were bloodshot, and he appeared disoriented.
Defendant failed two field sobriety tests and refused a
third. Officer Jenkins placed defendant under arrest and
obtained a warrant for a blood draw. During the preliminary
examination, the district court admitted a laboratory report
outlining the results of that blood draw over defendant's
objection. The report indicated that defendant's blood
alcohol content was 0.163.
district court found the prosecution had presented sufficient
evidence to find probable cause that defendant was operating
while intoxicated and bound defendant over to the circuit
court. Defendant then filed a motion with the circuit court
to quash the bind over, arguing that the laboratory report
was inadmissible under MCR 6.110. Defendant acknowledged that
MCL 766.11b appeared to render the report admissible but
argued that MCR 6.110 trumped MCL 766.11b. The circuit court
agreed and remanded the case for continuation of the
prosecution sought leave to appeal, which this Court
granted. On appeal, the prosecution argues that the
statutory exception to the hearsay rule in MCL 766.11b
supersedes MCR 6.110 as a statement of substantive law by the