Challenges to the admission of DataMaster breathalyzer test results; Failure to conduct a hearing under Daubert v. Merrell Dow Pharms., Inc. as to the reliability of the device; People v. Fosnaugh; Burden of proof as to its reliability; MCL 257.625a(6)(a); People v. Campbell; Compliance with the administrative regulations; MI Admin. Code, R 325.2655(1)(e); People v. Wujkowski; Admission of horizontal gaze nystagmus (HGN) evidence; People v. Berger; Harmless error; People v. Hawthorne; People v. Lukity; Admission of non-standardized field sobriety tests; MCL 257.625s; MRE 702 & 703; People v. Kowalski; Absence of testimony that administrative regulations relating to the calibration of the breathalyzer device were complied with; Waiver; People v. Fonville; Operating a motor vehicle while intoxicated (OWI)

The court held that the trial court did not err in refusing to order a Daubert hearing as to the reliability of the DataMaster breathalyzer device as MCL 257.625a(6)(a) shows the Legislature has determined that the device’s results are valid and reliable. It rejected defendant’s claim that the trial court erred in ruling his test complied with the applicable administrative rules. As to the admission of the HGN test results, and the trial court’s failure to determine whether the non-standardized field sobriety tests were reliable, the court found any error harmless. Finally, the prosecution did not have to show calibration tests were performed on the device used here and that it was reliable. Thus, the court affirmed defendant’s challenged OWI, third offense conviction. It concluded that MCL 257.625a(6)(a) made the evidence of his DataMaster breathalyzer test results admissible against him, in light of “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.” While he asserted that the prosecution had to prove that the specific “device used to test his blood alcohol content was reliable and that the trial court erred by” requiring him to prove that it “was unreliable, the language of MCL 257.625a(6)(a) includes no such requirement.” Thus, the prosecution did not have to produce specific evidence as to the reliability of this testing device. As to compliance with the administrative rules, as the trial court recognized, they “do not say anything about belching or wiping one’s mouth during the observation period.” The booking area surveillance video and the arresting officer’s (S) testimony showed that “the administrative regulations were complied with[.]” The trial court erred in admitting the HGN test results into evidence as S acknowledged that he may not have properly performed the test and thus, the Berger requirements were not met. But the error “was harmless because there was substantial evidence of defendant’s intoxication while operating his vehicle.”