            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    November 14, 2019
               Plaintiff-Appellee,

v                                                                   No. 343757
                                                                    Gogebic Circuit Court
CHRISTOPHER ROBERT STANAWAY,                                        LC No. 2017-000143-FH

               Defendant-Appellant.


Before: O’BRIEN, P.J., and GADOLA and REDFORD, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial conviction for operating a motor vehicle while
intoxicated (OWI), third offense, MCL 257.625(1); MCL 257.625(9)(c). We affirm.

                                            I. FACTS

         On April 30, 2017, at approximately 12:30 a.m., a police officer stopped defendant’s
vehicle because one of the headlights was out. Defendant explained during trial that, at the time
of the stop, he and a coworker were traveling back to Michigan from Wisconsin. The officer
testified that, when he approached the vehicle, he smelled alcohol and observed two half-empty
beer bottles in the vehicle’s center console. Defendant testified that he and his coworker had just
stopped at a restaurant, where defendant had two beers and a Long Island iced tea. Before
getting back on the road, defendant and his passenger purchased a six-pack of beer, and were
drinking from two open beers in the center console during the drive.

        The officer testified that, during the course of the stop, he took defendant’s license and
registration, and returned to his patrol vehicle. When the officer ran defendant’s license, he
found that it was expired. He returned to defendant’s vehicle and noticed that the beer bottles
were no longer in the center console; they were now in the backseat, empty. Defendant testified
during trial that when the officer went back to his patrol car during the stop, defendant and the
passenger drank the beers in the center console because they did not want to receive an open-
container violation. The officer administered three field sobriety tests, which defendant failed.
Defendant refused the administration of a preliminary breath test (PBT), so the officer arrested



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him for OWI. During trial, defendant testified that he refused to take the PBT because he had
just consumed the beer and thought this would result in an extremely high reading.

        At the police station, defendant refused a DataMaster test. Consequently, the officer
obtained a search warrant for defendant’s blood and transported him to the hospital. Defendant’s
blood was drawn at the hospital approximately two and a half hours after the initial stop, and
tests revealed a blood alcohol content (BAC) of 0.093%.

                                           II. ANALYSIS

                                      A. EXPERT WITNESS

        Defendant first argues that the trial court erred by denying his request for the appointment
of an expert witness at public expense. We disagree.

        “We review de novo, as an issue of constitutional law implicating a defendant’s due-
process rights, the trial court’s grant or denial of a defendant’s request for state funds to retain an
expert.” People v Propp, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 343255),
slip op at 3.

        Before trial, defendant requested the trial court to appoint an expert at government
expense, arguing that he required an expert because there was evidence that he had access to
alcohol (referring to the half-empty beer bottles in the center console) between the time he was
stopped and the time his blood was drawn. Defendant argued that an expert could testify that,
had defendant consumed the alcohol in the center console, it would have raised his BAC from
below 0.08% to the measured 0.093%. At the hearing on his motion, defendant expanded on his
argument, explaining that “an expert will be able to testify about the effects of the beer; you
know, the effects of drinking beer right before and right after the traffic stop and how that would
affect [defendant’s BAC] and get it right over the legal limit.”

       In denying defendant’s motion, the trial court explained in relevant part,

       [A]ssuming that the defendant had in fact consumed that alcohol [in the center
       console], the defense can still raise the issue in front of the jury on that point, and
       the science on this issue is pretty well established. That is, there is not a great
       dispute in the scientific community on consumption of alcohol and how it elevates
       or reduces [BAC] in an individual or evaporates or dissipates over time, so that
       the defense will have ample opportunity to cross-examine the forensic laboratory
       individual who came with the blood test result concerning the potential of the test
       being affected by [defendant’s] consumption after the stop, if in fact defense is
       able to show that there was the potential for that consumption.

        On appeal, defendant points out that the trial court analyzed his motion for appointment
of an expert under MCL 775.15, which has since been deemed improper. See People v Kennedy,
502 Mich 206, 225; 917 NW2d 355 (2018). Now, “the appropriate standard for courts to apply
in determining whether an indigent criminal defendant is entitled to the appointment of an expert
at government expense” is the “reasonable probability standard” announced in Moore v Kemp,

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809 F2d 702, 712 (CA 11, 1987). Kennedy, 502 Mich at 228. Under that standard, the defendant
“ ‘must show the trial court that there exists a reasonable probability both that an expert would
be of assistance to the defense and that denial of expert assistance would result in a
fundamentally unfair trial.’ ” Id., quoting Moore, 809 F2d at 712.

       Defendant contends that, by applying the wrong legal standard, the trial court “applied a
framework inconsistent with Due Process and denied [defendant’s] right to a fair trial.”
Defendant argues that under the appropriate “reasonable probability standard,” the trial court
should have granted his motion for funds for an expert witness. While we agree that the trial
court applied the wrong legal framework, we nonetheless conclude that, applying Kennedy,
defendant failed to establish a reasonable probability that denial of expert assistance resulted in a
fundamentally unfair trial.1

        As the trial court noted, “there is not a great dispute in the scientific community on
consumption of alcohol and how it elevates or reduces in an individual or evaporates or
dissipates over time, so that the defense will have ample opportunity to cross-examine the
forensic laboratory individual who came with the blood test result concerning the potential of the
test being affected by [defendant’s] consumption after the stop[.]” In other words, because there
is no “great” dispute about how the consumption of alcohol raises a person’s BAC and how a
person’s BAC dissipates over time, defendant could have cross-examined the prosecution’s
expert to present this evidence to the jury. In so doing, defendant would have been able to use
the prosecution’s expert to present the defense that he now claims he needed his own expert for:
that his consumption of the half-bottle of beer could have raised his BAC above the legal limit.

       For whatever reason, however, defense counsel at trial did not delve into this line of
questioning. He instead focused on the margin of error for the 0.093% BAC test result, and then
had the expert admit that she could not testify with certainty what defendant’s BAC was at the
time he was pulled over two and one-half hours before his tested blood was actually drawn.
Defense counsel never inquired about what effect, if any, the alcohol consumed after the stop
could have had on defendant’s BAC when his blood was drawn compared to his BAC when he
was initially stopped.2 On appeal, defendant does not claim that he could not have gotten this
information from the prosecution’s expert. And even if he did, the prosecution’s expert testified
during direct examination that she had knowledge and experience about the general and potential


1
  This Court recently considered events at trial when deciding whether a defendant established a
reasonable probability that the denial of expert assistance resulted in a fundamentally unfair trial,
see Propp, ___ Mich App at ___; slip op at 7-8, so we will do the same. Although in doing so,
we note that the Moore Court directed reviewing courts to evaluate the “trial judge’s action at the
time he took it.” Moore, 809 F2d at 710. See also Conklin v Schofield, 366 F3d 1191, 1208 (CA
11, 2004) (“In determining the reasonableness of the trial court’s refusal to provide independent
expert assistance, we consider only the facts available to the trial judge when he made a ruling on
the particular motion.”).
2
 Defendant does not raise an ineffective assistance of counsel claim or otherwise argue that his
counsel was ill prepared to cross-examine the prosecution’s expert.


                                                -3-
effects of alcohol on an individual. Yet defendant broadly asserts that he needed an expert of his
own to present evidence about the effect his consumption of the half-bottle of beer had on his
BAC. We simply cannot agree that defendant needed his own expert at government expense to
present this information when, as noted by the trial court and acknowledged by the prosecution’s
expert, he could have presented the same evidence when cross-examining the prosecution’s
expert. We therefore conclude that defendant did not establish a reasonable probability that
denial of expert assistance resulted in a fundamentally unfair trial.3

                                      B. COURT COSTS

        Defendant also argues that the $300 in court costs imposed under MCL 769.1k(1)(b)(iii)
constituted an unconstitutional tax. We disagree.

       In People v Cameron, 319 Mich App 215, 218; 900 NW2d 658 (2017), we concluded that
costs imposed under MCL 769.1k(1)(b)(iii) constituted a tax, but held that the tax was not
unconstitutional. We are bound by Cameron’s holding. See MCR 7.215(J)(1).4

       Affirmed.



                                                            /s/ Colleen A. O’Brien
                                                            /s/ Michael F. Gadola
                                                            /s/ James Robert Redford




3
  The trial court also denied defendant expert assistance at government expense because it found
that defendant was not indigent. In light of our above analysis, we need not address defendant’s
appellate argument with respect to this ruling.
4
 While not relevant to our holding, we note that, since this appeal was filed, our Supreme Court
has denied leave to appeal in Cameron. People v Cameron, 929 NW2d 785, 785 (2019).


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