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Polony v. City of Sterling Heights2/20/2001
UNPUBLISHED
Plaintiff appeals as of right the circuit court's order granting defendants summary disposition on the basis of a release, MCR 2.116(C)(7), in this case alleging false arrest, assault and battery, constitutional violations, and intentional infliction of emotional distress. We affirm.
The instant suit arises from an underlying case in which plaintiff was arrested for driving under the influence of intoxicating liquor, MCL 257.625; MSA 9.2325. She eventually pleaded guilty of careless driving, a civil infraction, in exchange for dismissal of the OUIL charge. The facts pertinent to the underlying case are that shortly after 4:30 a.m. on September 24, 1995, defendants McMullen and Dwinnells, police officers for defendant City, on routine patrol, observed a car driving on M-53 well below the posted speed limit, swerving from one side of the road to another, and straddling the lanes. The officers effected a traffic stop, and Officer Dwinnells approached the vehicle and spoke to the driver, plaintiff in the instant case. Plaintiff smelled of intoxicants, had bloodshot eyes, slurred her speech, and said she had been drinking and was on her way home. The incident report stated that plaintiff was unable to walk without assistance when asked to leave the vehicle and step to the shoulder of the road. The officers testified at deposition that plaintiff cooperated throughout, was handcuffed at some point, arrested for driving under the influence of intoxicating liquor, MCL 257.625; MSA 9.2325, and taken to the police station. Plaintiff was booked at 4:50 a.m. and three breath tests were administered beginning at 5:05 and ending at 5:13 a.m., all of which registered "invalid sample." Plaintiff was then taken to the Utica police station for a fourth breath test, which was administered at 5:40 a.m. The breathalyzer printout states "refused" after "subject sample." An affidavit submitted by plaintiff states that at 7:00 a.m. that morning she was given orange juice and sweets and that her condition soon after dramatically improved. A Sterling Heights Police Department medication log states that plaintiff was given a number of medications at 10:00 a.m. that morning. The parties dispute the point at which plaintiff requested medical care. Officers Dwinnels and McMullen submitted affidavits stating that plaintiff "did not request medical care or treatment or transport to the hospital, nor did it appear . . . that was in need [of such" while in their custody. Plaintiff's affidavit, on the other hand states:
1. That on the night that I was arrested for drunk driving , I made repeated requests of the two officers to allow me to take some sugar or something sweet.
2. That I repeatedly informed them that I was diabetic and in need of help, and that I was suffering from a diabetic reaction.
3. That as a diabetic, I carry sugar or sweets in my purse.
4. That on the night in question I had a package of chuckles candy which are a soft chewable sweet sugar coated candy.
5. That at the time that I was pulled over I was attempting to remove the chuckles from my pursue because of my diabetic condition.
6. That I advised the officers that I had candy in my pursue and repeatedly made requests for them to allow me to take it. Those requests were denied.
7. That I made repeated requests after being placed in the police car and taken to the police station for help because of my diabetic reaction and made repeated requests for sugar or something sweet to eat. All of these requests were denied.
8. At approximately 7:00 a.m., an older male officer gave me an orange juice and three packages of sugar.
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