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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v JAMES WILLIAM BRADY, Defendant-Appellee.

UNPUBLISHED May 25, 2001

No. 229338 Calhoun Circuit Court LC No. 00-001136-FH

Before: Wilder, P.J., and Hood and Cavanagh, JJ. PER CURIAM. The prosecutor appeals as of right from an order dismissing the charges of operating a motor vehicle under the influence of intoxicating liquor (OUIL) causing death, MCL 257.625(4); MSA 9.2325(4), involuntary manslaughter, MCL 750.321; MSA 28.553, and failure to stop at a serious injury accident, MCL 257.617; MSA 9.2317. 1 We reverse and remand. On January 14, 1999, defendant consumed alcohol with his friends.2 The men departed in defendant's Jeep Cherokee with defendant behind the wheel. Defendant attempted to pass a truck in a far, curbside lane. Defendant struck the curb, lost control of the vehicle, and hit fence posts. The posts entered the windshield of the vehicle and struck the victim, passenger Jim Head, in the chest. Defendant did not stop the vehicle, but continued driving to a friend's home. Two other passengers urged defendant to stop driving and call 911 for assistance. Defendant arrived at the friend's home, and the other passengers carried the victim into the home because he could not walk by himself. As the victim lay on the floor, the other passengers implored defendant to call 911. Eventually, emergency help was called, and police arrived on the scene

Defendant argued that prior to the commencement of trial, the prosecutor indicated that it would no longer pursue the third charge in the case. However, this discussion allegedly occurred off the record, and the assertion is not preserved by written order in the record on appeal. Accordingly, on remand, any dismissal should be evidenced by written order. We note that the record on appeal is not complete. Specifically, the first volume of the preliminary examination has not been presented on appeal. However, the key issue in the case involves a matter of law. Accordingly, the failure to provide a complete transcription of the record below does not preclude appellate review.
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and performed revival procedures until an ambulance arrived. The victim did not survive the accident. A forensic pathologist examined the body of the victim. The only external sign of injury was, in effect, a "branding" or "tattoo" on the chest of the decedent. Specifically, two rings appeared in the middle of the victim's chest where the fence post had landed. While the fence post did not impale the victim, the internal injuries suffered were overwhelming. The victim's ribs had been fractured with such force that the bones were cracked into spear shaped fragments that pierced the lungs. There was a laceration in the diaphragm, and the liver had split into three pieces. A piece of the liver was found compressing the lung. The aorta was also extensively damaged. The victim lost nearly fifty percent of his blood volume in a very short time frame. The loss of fifteen to twenty-five percent of blood is sufficient to cause the death of a person. The pathologist determined that the cause of death was multiple, blunt force trauma associated with acute internal exsanguination or blood loss. Defendant had prior convictions for alcohol related driving offenses. Prior to the commencement of trial, defendant moved to dismiss the charges based on the failure to advise defendant of his implied consent rights. Defense counsel argued that this issue was discovered during the course of examining the file. The prosecutor, when approached with the issue of the implied consent, conferred with Officer Bagwell regarding the procedure that had occurred. The prosecutor represented to the court that implied consent rights were not, in fact, given to defendant. Rather, Officer Bagwell arrested defendant and sought a search warrant to secure evidence of defendant's alcohol level. The prosecutor noted that the search warrant contained standard language indicating that implied consent rights had been given. However, the implied consent portion of the search warrant was erroneous, and the officer merely failed to strike that language from the standard form. Defense counsel argued that the failure to comply with the implied consent statute, MCL 257.625a; MSA 9.2325(1), required dismissal of the charges. The trial court agreed and dismissed the charges. The prosecutor filed a motion for reconsideration. The prosecutor argued that the failure to advise defendant of implied consent rights had no bearing on the charges when the evidence was obtained pursuant to a search warrant. The prosecutor also argued that the affidavit in support of the search warrant was valid on its face despite the failure to strike the standard language regarding the implied consent statute. The trial court did not take testimony or rule on the validity of the search warrant. Rather, the trial court continued to hold that the failure to provide implied consent rights to defendant required dismissal of the charges. The prosecutor argues that the trial court erred in applying the implied consent statute where evidence was gathered pursuant to a search warrant. We agree. Questions of law are reviewed de novo on appeal. People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998). Statutory interpretation presents a question of law. People v Nimeth, 236 Mich App 616, 620; 601 NW2d 393 (1999). The Fourth Amendment of the United States Constitution, US Const, Am IV, and Const 1963, art 1,

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