            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    PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                       August 13, 2020
                Plaintiff-Appellee,

    v                                                                  No. 344840
                                                                       Wayne Circuit Court
    ROBERT MICHAEL CRAIG,                                              LC No. 17-002443-01-FH

                Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and TUKEL, JJ.

PER CURIAM.

        Defendant appeals as of right his bench trial convictions of operating a motor vehicle while
intoxicated (OWI), third offense, MCL 257.625(1); MCL 257.625(9)(c), and operating a motor
vehicle while license suspended, revoked, or denied, MCL 257.904(1); MCL 257.904(3)(a). On
appeal, defendant only challenges his conviction of operating a motor vehicle while intoxicated.
We affirm.

                                      I. UNDERLYING FACTS

        In the early afternoon of November 4, 2016, defendant was pulled over by then-Northville
Police Officer Kyle Smith after Officer Smith was dispatched for a possible drunk driver.
Although defendant did not initially pull over when Officer Smith activated his lights and
emergency siren, defendant eventually came to a stop after slowly rolling past a stop sign. Officer
Smith, who was soon joined by Northville Police Officer Brian Dogonski, had defendant exit his
vehicle and perform several field sobriety tests. Those tests included a horizontal gaze nystagmus
(HGN) test,1 alphabet and counting tests, which required defendant to say his English alphabet



1
  “Horizontal gaze nystagmus is the inability of the eyes to maintain visual fixation as they move
from left to right.” People v Berger, 217 Mich App 213, 215; 551 NW2d 421 (1996). To perform
the HGN test, “the subject holds the head still and covers or closes one eye while focusing the
other on an object (e.g., a pen) held at eye level.” Id. “As the object is gradually moved out of the



                                                -1-
from C to X and to count backward from 99 to 77 while tilting his head back and closing his eyes,
as well as standing and walking tests that are not the subject of the instant appeal. Officer Smith
testified that, on the basis of defendant’s performance of the HGN test, he believed defendant had
intoxicants in his blood. Additionally, with respect to the alphabet and counting tests, defendant
said letters and numbers out of order and said things that Officer Smith could not understand.
Officer Smith also believed that defendant’s performance on these tests established defendant was
under the influence of alcohol. Officer Smith additionally asserted defendant smelled of alcohol,
but defendant denied having consumed any alcohol that day. Officer Smith administered a
preliminary breath test to defendant, with a result of 0.16. Officer Smith arrested defendant for
operating a vehicle while intoxicated and took him to the Northville Township Police Department.

         Once at the Northville Township Police Department, Officer Smith administered a
DataMaster breathalyzer test to defendant to determine his blood alcohol content. Officer Smith
testified that, in accordance with administrative regulations governing such breath tests, he
observed defendant for 15 minutes before administering the test to ensure defendant did not smoke,
put anything in his mouth, or regurgitate before the test. After observing defendant for 15 minutes,
Officer Smith gave defendant the breathalyzer test. Officer Smith administered the test twice, the
first test resulted in a 0.15 blood alcohol content reading and the second test resulted in a 0.14
blood alcohol content reading.

       Defendant was convicted after a bench trial. This appeal followed.

                                  II. MOTIONS TO SUPPRESS

                                  A. STANDARD OF REVIEW

        “We review for clear error a trial court’s findings of fact in a suppression hearing, but we
review de novo its ultimate decision on a motion to suppress.” People v Hyde, 285 Mich App 428,
436; 775 NW2d 833 (2009). “Clear error occurs if the reviewing court is left with a definite and
firm conviction that the trial court made a mistake.” People v Johnson, 502 Mich 541, 565; 918
NW2d 676 (2018) (quotation marks and citation omitted). “The decision whether to admit
evidence is within a trial court’s discretion. This Court reverses it only where there has been an
abuse of discretion.” People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003). An abuse of
discretion occurs when the trial court chooses an outcome that falls outside the range of reasonable
and principled outcomes. Johnson, 502 Mich at 564. Furthermore, “[a] trial court also necessarily
abuses its discretion when it makes an error of law.” People v Al-Shara, 311 Mich App 560, 566-
567; 876 NW2d 826 (2015). “To the extent that the trial court’s ruling involves an interpretation
of the law or the application of a constitutional standard to uncontested facts, our review is de
novo.” People v Tanner, 496 Mich 199, 205; 853 NW2d 653 (2014) (quotation marks and citation
omitted).



subject’s field of vision toward the ear, the officer is to look for involuntary jerking of the eyeball
when it tracks the object.” Id. The officer then repeats the test with the other eye. Id. “The onset
of nystagmus is the indicator for alcohol intoxication.” Id. (citation omitted).


                                                 -2-
        This Court reviews for an abuse of discretion a trial court’s decision to qualify a witness
as an expert and to admit a witness’s testimony. People v Murray, 234 Mich App 46, 52; 593
NW2d 690 (1999). A trial court’s decision to conduct a Daubert2 hearing is reviewed by this
Court for an abuse of discretion. People v Unger, 278 Mich App 210, 216-218; 749 NW2d 272
(2008).

                        B. BREATHALYZER DAUBERT CHALLENGE

                                            1. WAIVER

       Waiver is “the intentional relinquishment or abandonment of a known right.” People v
Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011) (citation and quotation marks omitted).
“One who waives his rights under a rule may not then seek appellate review of a claimed
deprivation of those rights, for his waiver has extinguished any error.” People v Carter, 462 Mich
206, 215; 612 NW2d 144 (2000) (citation and quotation marks omitted).

        The prosecution argues that defendant waived any argument relating to admission into
evidence of the DataMaster breathalyzer test because defendant’s trial attorney stated “[n]o
objection” when the results of the breathalyzer test were offered at trial. The prosecution’s
argument, however, ignores the fact that before trial began defendant filed two motions to suppress
evidence from the DataMaster breathalyzer test. Furthermore, before any testimony or opening
statement was made on the first day of trial, defendant and the prosecution agreed that the trial
judge should defer ruling on defendant’s pretrial evidentiary motions until the conclusion of trial.
Consequently, defendant did not intentionally relinquish a known right when his trial attorney
stated “[n]o objection” in response to the prosecution’s offer of the breathalyzer test results into
evidence, given the parties earlier agreement; that issue has been properly preserved.3 Thus,
defendant did not waive the issue of the breathalyzer test’s admissibility.

                                     2. MERITS ANALYSIS

        Defendant argues that in failing to order a hearing under Daubert regarding the reliability
of the DataMaster breathalyzer machine, the trial court abused its discretion. Defendant also
argues that that the trial court erred in concluding that defendant, rather than the prosecution, had
the burden of proof to establish the reliability of the device. We disagree.

        As a general matter, “The proponent of evidence bears the burden of establishing its
relevance and admissibility.” People v Martin, 271 Mich App 280, 316; 721 NW2d 815 (2006),
aff’d 482 Mich 851 (2008). Also, as a general matter, the proponent must prove admissibility by
a preponderance of the evidence. People v Jones, 270 Mich App 208, 217; 714 NW2d 362 (2006).


2
  Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469
(1993).
3
  While it does not affect our analysis on this issue, we additionally note that the trial court ruled
on defendant’s pretrial evidentiary motions, including the motions about the breathalyzer test, at
the conclusion of trial.

                                                 -3-
However, the Michigan Legislature, in enacting MCL 257.625a(6)(a), has eliminated the general
rule regarding the foundation needed for admission of chemical test results of a person’s breath:

       (6) The following provisions apply to chemical tests and analysis of a person’s
       blood, urine, or breath, other than a preliminary chemical breath analysis:

       (a) The amount of alcohol or presence of a controlled substance or other
       intoxicating substance 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 analysis of the person’s
       blood, urine, or breath is admissible into evidence in any civil or criminal
       proceeding and is presumed to be the same as at the time the person operated the
       vehicle. [MCL 257.625a(6)(a).]

        “To be admissible, chemical test results must be both relevant and reliable.” People v
Fosnaugh, 248 Mich App 444, 450; 639 NW2d 587 (2001). In People v Campbell, 236 Mich App
490, 506; 601 NW2d 114 (1999), this Court interpreted the implied consent statute, MCL
257.625a, in the context of a challenge regarding whether the test was performed within a
reasonable time. This Court concluded that “the implied consent statute and the policy regarding
drinking and driving support the conclusion that the only prerequisite to admission of blood
alcohol test results is a threshold relevancy requirement, as codified in MRE 401, 402, and 403.”
Id. at 506. This Court further stated:

       Although the Legislature could, of course explicitly require that chemical tests be
       administered within a specific amount of time, or that the prosecutor set forth
       specific evidence as a prerequisite to admission, it did not do so here. Absent clear
       statutory language requiring a greater prosecutorial burden in admitting chemical
       tests of blood alcohol, and considering the clear purpose of statute, we believe that
       a necessary inference is that the Legislature did not authorize such a burden. A
       requirement that the prosecution set forth preliminary evidence showing the
       reliability of the test results . . . would potentially frustrate the statute’s purpose by
       imposing an additional burden on the prosecutor in OUIL cases. [Id. at 499.]

         Thus, MCL 257.625a(6)(a) makes the evidence of defendant’s DataMaster breathalyzer
test results admissible against defendant, given the obvious relevance of defendant’s blood alcohol
level. The enactment of MCL 257.625a(6)(a) demonstrates an implicit acknowledgment by the
Michigan Legislature that breathalyzer test results are highly probative. Although defendant
argues that the prosecution had to prove that the specific DataMaster device used to test his blood
alcohol content was reliable and that the trial court erred by making defendant prove that the device
was unreliable, the language of MCL 257.625a(6)(a) includes no such requirement. Consequently,
the prosecution was not required to present specific evidence regarding the reliability of the testing
device. Because the Michigan Legislature has determined that DataMaster breathalyzer results are
valid and reliable, the trial court did not err in declining to order a Daubert hearing regarding the
reliability of the DataMaster breathalyzer machine.




                                                  -4-
                C. COMPLIANCE WITH ADMINISTRATIVE REGULATIONS

       Defendant argues that the trial court erred when it concluded that defendant’s breath test
complied with the applicable administrative rules and that it should have suppressed the
breathalyzer test results. We disagree.

        Mich Admin Code, R 325.2655(1)(e) addresses the procedure police officers must follow
before administering a breath alcohol analysis on an evidential breath alcohol test instrument such
as the DataMaster breathalyzer:

       A person may be administered an evidential breath alcohol analysis on an evidential
       breath alcohol test instrument only after being observed for 15 minutes before
       collection of the breath sample by at least 1 appropriate class operator who is
       certified in accordance with R 325.2658. The observation period may be conducted
       by more than 1 operator working in concert. During the observation period, the
       person shall not have smoked, regurgitated, or placed anything in his or her mouth,
       except for the mouthpiece associated with the performance of the evidential breath
       alcohol analysis. The operator need not stare continuously at the person, but must
       be close enough to be aware of the person’s actions and conditions. The operator
       may complete paperwork, enter data into the evidential breath alcohol test
       instrument, or conduct other reasonable tasks during the observation period
       provided the person is within the operator's field of vision. Breaks in the
       observation period lasting only a few seconds do not invalidate the observation
       provided the operator can reasonably determine that the person did not smoke,
       regurgitate, or place anything in his or her mouth during the breaks in the
       observation. [Rule 325.2655(1)(e).]

        This Court has held that “there is no bright-line rule of automatic suppression of evidence
where an administrative rule has been violated.” People v Wujkowski, 230 Mich App 181, 187;
583 NW2d 257 (1998) (citation omitted). Instead, “suppression of test results is required only
when there is a deviation from the administrative rules that call into question the accuracy of the
test.” People v Fosnaugh, 248 Mich App 444, 450; 639 NW2d 587 (2001).

         The trial court did not abuse its discretion in admitting the DataMaster breathalyzer results.
Under the administrative regulations, Officer Smith had to observe defendant for 15 minutes
before he administered the breathalyzer test to defendant. Rule 325.2655(1)(e). Officer Smith
testified that he complied with this requirement and watched defendant during the entire 15-minute
observation window. Officer Smith removed everything from defendant’s person before he began
the observation window, so defendant could not have put any objects into his mouth. Defendant
claims that in the 15-minute observation window, he wiped his mouth multiple times, possibly
belched during the observation period, and belched after he took the second test. Video of
defendant shows that throughout the 15-minute window, he rubbed his upper lip, nose, eyes, face,
and neck with his hands, and occasionally rested his hand on his chin, neck, or brow. Additionally,
at 2:40:25 p.m., approximately 25 to 30 seconds after the second test was completed, defendant
belched. However, as the trial court recognized, the administrative rules do not say anything about
belching or wiping one’s mouth during the observation period. See Rule 325.2655(1)(e). Because
the surveillance video of the booking area and Officer Smith’s testimony demonstrates that the

                                                 -5-
administrative regulations were complied with, the trial court did not err in admitting the
DataMaster breathalyzer test results into evidence.

                     D. THE HORIZONTAL GAZE NYSTAGMUS TEST

       Defendant argues that the trial court erred when it allowed the HGN test results into
evidence because the evidence below did not establish that Officer Smith complied with the
standards for administering the HGN test. We agree, but find any such error was harmless.

        In People v Berger, 217 Mich App 213, 217-218; 551 NW2d 421 (1996), this Court held
that the prosecution need not present expert testimony about the validity of the HGN test and that
the “only foundation necessary for the introduction of evidence regarding the HGN test in
Michigan is evidence that the test was properly performed and that the officer administering the
test was qualified to perform it.”

        The trial court erred when it admitted the results of the HGN tests into evidence. Officer
Smith acknowledged the possibility that he may not have performed the HGN test properly. The
trial court concluded that the ambiguity in Officer Smith’s testimony about whether he performed
the HGN test properly went to the weight of the evidence, rather than its admissibility. However,
in Berger, this Court held that as a prerequisite to admissibility, the prosecution must demonstrate
that the test was performed properly and that the officer administering the test was qualified to
perform it. Berger, 217 Mich App at 217-218; see also MRE 104(a). The trial court was incorrect
in concluding that whether Officer Smith performed the HGN test properly went to the weight of
the evidence. Berger makes clear that admissibility of the HGN test results depends, in part, on
whether the test was performed properly. Id. Officer Smith admitted it was possible that he did
not perform the HGN test properly and his report, which was read into evidence during trial, does
not discuss two of the three steps of the HGN test. Because Officer Smith admitted he may not
have properly performed the HGN test, the Berger requirements were not satisfied. As an error of
law, the trial court’s decision to admit the evidence necessarily constituted an abuse of discretion.

       Although the trial court erred in admitting the results of the HGN test into evidence,
nevertheless that error was harmless.

        This Court presumes nonconstitutional preserved errors to be harmless, and it is the
defendant’s burden to show that the error resulted in a miscarriage of justice. People v Hawthorne,
474 Mich 174, 181; 713 NW2d 724 (2006). Reversal is required only if it is more probable than
not that the error affected the outcome. People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607
(1999). “A preserved error in the admission of evidence does not warrant reversal unless after an
examination of the entire cause, it shall affirmatively appear that it is more probable than not that
the error was outcome determinative.” People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013)
(quotation marks and citation omitted).

       The trial court’s error in admitting the results of the HGN test into evidence was harmless
because there was substantial evidence of defendant’s intoxication while operating his vehicle.
Steve Herman, the owner of a repair shop where defendant left a vehicle for storage, testified that
defendant came into his auto repair shop and, on the basis of defendant’s behavior, the smell of
alcohol on defendant, and red stains on his clothes and lips, Herman could tell that defendant had

                                                -6-
been drinking alcohol that day. Officer Smith testified that he saw defendant turn without
signaling, drive through a stop sign without stopping, continue driving despite Officer Smith
activating his emergency lights and siren, slowly roll through another stop sign, and come to a stop
in an intersection. After defendant stepped out of his vehicle, Officer Smith could smell alcohol
on defendant’s person. During the video of defendant’s traffic stop and arrest, defendant
performed a preliminary breath test, resulting in a 0.16 blood alcohol content reading.
Additionally, the results of the DataMaster breathalyzer test administered to defendant at the
Northville police station established that his blood alcohol content was 0.14 and 0.15, which is
above the 0.08 legal limit. Further, the testimony of several hospital employees establish that
defendant admitted consuming several alcoholic beverages before he drove that morning. Given
the evidence that defendant was under the influence of alcohol and that his blood alcohol level was
above the legal limit while driving, the trial court’s error in admitting the HGN test results was not
outcome-determinative. As a result, any error was harmless. Burns, 494 Mich at 110.

                     E. NONSTANDARDIZED FIELD SOBRIETY TESTS

        Defendant argues that the trial court further erred when it admitted nonstandardized field
sobriety test results into evidence without determining whether the tests met the Daubert standard.
Although the trial court failed to determine whether the nonstandardized field sobriety tests were
reliable, any such error on the part of the trial court was harmless.

        MCL 257.625s discusses the admissibility of standardized and nonstandardized field
sobriety tests. It provides:

       A person who is qualified by knowledge, skill, experience, training, or education,
       in the administration of standardized field sobriety tests, including the horizontal
       gaze nystagmus (HGN) test, shall be allowed to testify subject to showing of a
       proper foundation of qualifications. This section does not preclude the
       admissibility of a nonstandardized field sobriety test if it complies with the
       Michigan rules of evidence. [MCL 257.625s (emphasis added).]

       MRE 702 and MRE 703 cover scientific evidence and expert witnesses, stating:

       If the court determines that scientific, technical, or other specialized knowledge will
       assist the trier of fact to understand the evidence or to determine a fact in issue, a
       witness qualified as an expert by knowledge, skill, experience, training, or
       education may testify thereto in the form of an opinion or otherwise if (1) the
       testimony is based on sufficient facts or data, (2) the testimony is the product of
       reliable principles and methods, and (3) the witness has applied the principles and
       methods reliably to the facts of the case. [MRE 702.]

       The facts or data in the particular case upon which an expert bases an opinion or
       inference shall be in evidence. This rule does not restrict the discretion of the court
       to receive expert opinion testimony subject to the condition that the factual bases
       of the opinion be admitted in evidence thereafter. [MRE 703.]



                                                 -7-
        Under these rules, a court considering whether to admit expert testimony or scientific
evidence under MRE 702 “acts as a gatekeeper and has a fundamental duty to ensure that the
proffered” evidence is both relevant and reliable. People v Kowalski, 492 Mich 106, 120; 821
NW2d 14 (2012).

        The trial court erred when it failed to address whether defendant’s nonstandardized field
sobriety test results were reliable despite defendant’s request for a Daubert hearing. Although the
trial court made a finding that the evidence of defendant’s performance on the nonstandardized
field sobriety tests was relevant to whether defendant was under the influence of alcohol at the
time of the traffic stop, the trial court did not address whether the tests themselves, as adjusted,
were reliable. Kowalski, 492 Mich at 120. Because the trial court failed to comply with its
“fundamental duty” to ensure that the proffered scientific evidence was reliable, the trial court
erred.

        Despite the fact that the trial court erred in failing to address whether the nonstandardized
field sobriety tests at issue met the Daubert standard, any failure by the trial court to hold a Daubert
hearing was harmless for the same reasons addressed earlier in Part II(D) regarding the trial court’s
admission of the HGN test results. Given the evidence that defendant was under the influence of
alcohol and that his blood alcohol level was above the legal limit while driving, the trial court’s
error in failing to hold a Daubert hearing was not outcome-determinative. As a result, reversal is
not required because the error was harmless. Burns, 494 Mich at 110.

                          III. RELIABILITY OF THE DATAMASTER

                     A. PRESERVATION AND STANDARD OF REVIEW

        “To preserve an evidentiary issue for review, a party opposing the admission of evidence
must object at trial and specify the same ground for objections that it asserts on appeal.” People v
Aldrich, 246 Mich App 101, 116; 631 NW2d 67 (2001). Defendant now argues for the first time
on appeal that the breathalyzer test results should have been suppressed because there was no
testimony that administrative regulations relating to the calibration of the breathalyzer machine
were complied with. Defendant concedes that this specific argument was not made below and, as
a result, the issue is unpreserved. We agree that the issue is unpreserved.

     Unpreserved issues are reviewed for plain error. People v Cain, 498 Mich 108, 116; 869
NW2d 829 (2015).

       To avoid forfeiture under the plain error rule, three requirements must be met: 1)
       error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
       plain error affected substantial rights. The third requirement generally requires a
       showing of prejudice, i.e., that the error affected the outcome of the lower court
       proceedings. It is the defendant rather than the Government who bears the burden
       of persuasion with respect to prejudice. Finally, once a defendant satisfies these
       three requirements, an appellate court must exercise its discretion in deciding
       whether to reverse. Reversal is warranted only when the plain, forfeited error
       resulted in the conviction of an actually innocent defendant or when an error
       seriously affected the fairness, integrity or public reputation of judicial proceedings

                                                  -8-
       independent of the defendant’s innocence. [People v Carines, 460 Mich 750, 763-
       764; 597 NW2d 130 (1999) (quotation marks, citations, and brackets omitted).]

In the instant context, prejudice “requires a showing . . . that the error affected the outcome of the
lower court proceedings.” People v Chelmicki, 305 Mich App 58, 69; 850 NW2d 612 (2014)
(quotation marks and citation omitted).

                                          B. ANALYSIS

       Defendant argues that the prosecution was required to show that the particular DataMaster
breathalyzer device used to test him was reliable, and that calibration tests were performed on it.
We disagree.

        As discussed above, the Legislature did not include a requirement that the prosecution “set
forth specific evidence as a prerequisite to admission” of breath test results. Campbell, 236 Mich
App at 499. Because the Legislature did not impose such a burden on the prosecution, the trial
court did not err in admitting the breath test results.

        Defendant additionally argues that his trial counsel was ineffective for failing to make this
argument at the trial court level. Defendant, however, failed to identify his ineffective assistance
of counsel claim in his statement of the questions presented. Consequently, defendant has waived
the issue. People v Fonville, 291 Mich App 363, 383; 804 NW2d 878 (2011).

                                        IV. CONCLUSION

       Affirmed.

                                                              /s/ Amy Ronayne Krause
                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Jonathan Tukel




                                                 -9-
