Operating while visibly impaired (OWVI), third offense; MCL 257.625(3) & MCL 257.625(11)(c); Sufficiency of the evidence; People v Mikulen; Controlled substance definition; MCL 257.8b & MCL 333.7104(3); Schedule II substances; MCL 333.7214(c)(i) & (ii); Expert testimony; People v Perry; Preliminary breath test (PBT)

The court held that sufficient evidence supported defendant’s OWVI conviction because the prosecution presented ample observational evidence that his ability to operate a vehicle was visibly impaired due to the consumption of a controlled substance or intoxicating substance. A passerby found defendant passed out behind the wheel of a pickup truck parked in the middle of the road at night, and removed the keys from the ignition through a cracked window. He testified that defendant woke briefly, said he had been “partying down at the lake and that he had been drinking,” smelled of alcohol, and then “nodded back out.” Deputies arrived within minutes and observed defendant to be groggy, in and out of consciousness, with droopy eyelids, thick slurred speech, shakiness, restlessness, and an inability to follow basic instructions or complete field sobriety tests. On appeal, the court held that this visual and observational evidence was sufficient under Mikulen, which requires proof that the defendant’s “ability to operate the vehicle was visibly impaired” and not proof of actual erratic driving. The court next held that, even though the PBT was only 0.019 and no alcohol was detected in the later blood draw, the toxicology report showed meth and amphetamine in defendant’s blood, a deputy testified that the report concerned controlled substances, and the jury was free to reject the defense expert’s opinion that those substances did not impair defendant’s driving. The court also held that meth and amphetamine are Schedule II controlled substances and that the evidence supported the jury’s finding that defendant had consumed a controlled substance or intoxicating substance. Affirmed.