Adjournment; Directed verdict; “Operating” a vehicle for purposes of operating a motor vehicle while intoxicated (OWI); Admission of a “Datamaster” machine & logs; Hearsay; “Business records” under MRE 803(6); “Missing-witness” jury instruction; Ineffective assistance of counsel; Agreeing that the trial court should reread the operating instruction to the jury; Sentencing; Upward departure; Accurate information; OWI third offense (OWI III); Operating a motor vehicle while license suspended (OWLS); Michigan State Police (MSP)

The court concluded that the trial court did not abuse its discretion by denying defendant’s motion for an adjournment and motion for a directed verdict. Also, he failed to show that officers’ testimony improperly bolstered the accuracy of the Datamaster machine. And the log results were properly admitted under MRE 803(6). Further, his jury instruction issues did not require reversal, and he was not denied the ineffective assistance of counsel. Finally, the court rejected his sentencing challenges. He was convicted of OWI III, OWLS, and having an open alcoholic container in a motor vehicle. He was sentenced as a fourth-offense habitual offender to 6 to 20 years for OWI III; 93 days for OWLS; and 90 days for having an open alcoholic container in a motor vehicle. Defendant argued that the trial court abused its discretion by denying his motion for an adjournment before trial to investigate fraud allegations. The only evidence of the potential fraud that was before the trial “court—the statement from the MSP—demonstrated that the fraud related to certification records involved with the servicing of the Datamaster machines. The MSP’s statement explicitly provided that ‘the discrepancies do not directly impact or deal with the results of evidential breath tests.’” Also, his trial counsel told the trial court that “she believed that the MSP ‘would have certified [the Datamaster machine in this case] at this point in time,’ and she reiterated that the MSP had told her ‘that they did come and determine that the Saginaw Chippewa Datamaster that’s involved in this case wasn’t part of this fraudulent activity.’ Trial counsel further agreed with the trial court that counsel had been advised that the [MSP] have inspected and verified the instruments [and] that they are properly calibrated . . . .’” In short, the information before the trial “court when it denied defendant’s motion suggested that the Datamaster machine used in this case was not affected by the alleged fraud, and that, even if it was, that fraud did not affect the results of the evidential breath test. On the basis of this information, the trial court did not abuse its discretion by denying defendant’s motion for an adjournment.” Further, he failed to show how he was prejudiced. As to his motion for a directed verdict, an officer’s testimony that “defendant was the driver of the van was sufficient to support a finding that defendant was the driver of the van, and therefore operated” it. Affirmed.