PEOPLE OF MI V DONALD RICHARD GREIG
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 18, 2000
Plaintiff-Appellee,
v
No. 212294
Shiawassee Circuit Court
LC No. 95-007318-FH
DONALD RICHARD GREIG,
Defendant-Appellant.
Before: Neff, P.J., and Smolenski and Meter, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of one count of operating a motor vehicle under
the influence of liquor, third offense (OUIL), MCL 257.625(1)(b); MSA 9.2325(1)(b), and one count
of driving with a suspended license, second offense (DWLS), MCL 257.904(1)(b); MSA
9.604(1)(b).1 The circuit court sentenced defendant as a fourth habitual offender, MCL 769.12; MSA
28.1084, to a term of eight to twenty years’ imprisonment for the OUIL conviction and a term of 407
days for the DWLS conviction. Defendant appeals as of right. We affirm.
Defendant first contends that the trial court erroneously denied his motion to suppress the results
of a blood alcohol test, which registered defendant’s blood alcohol content at .28 percent, well in
excess of the legal limit. Defendant argues that police failed to properly test the machine used to analyze
his blood alcohol content. Defendant also argues that the arresting officer failed to properly observe him
before administering the test. For these reasons, defendant argues that the test results should have been
excluded from evidence. We disagree.
Defendant correctly notes that the Michigan Administrative Code requires breath analysis
machines to be tested for accuracy at least once during each calendar week. 1999 AC, R
325.2653(1). In this case, police administered the breath test to defendant on March 26, 1995. The
machine had been tested for accuracy two days earlier, on March 24, 1995. The machine was
subsequently tested for accuracy on April 5, 1995. Both tests demonstrated that the machine was
1
Although both statutory sections were subsequently amended, the citations relate to the law in effect
when defendant committed the instant offenses, on March 26, 1995.
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functioning within acceptable tolerances. However, the police technically violated the administrative rule
because they failed to test the machine within the calendar week following defendant’s arrest.
The purpose of the administrative rules regarding breath test procedures is to ensure the
accuracy of the test results. People v Wujkowski, 230 Mich App 181, 187; 583 NW2d 257 (1998);
People v Rexford, 228 Mich App 371, 378; 579 NW2d 111 (1998). Technical violations of the
administrative rules do not require suppression of breath test evidence where there is nothing to indicate
that the test results were inaccurate. Wujkowski, supra at 187; Rexford, supra at 377-378. In this
case, the evidence indicates that the breath analysis machine was functioning accurately at the time
defendant’s breath samples were tested for alcohol content.
Defendant also argues that the arresting officer failed to properly observe him before
administering the breath test. The Michigan Administrative Code provides that a breath alcohol analysis
test may only be administered when the machine operator has observed the person to be tested for
fifteen minutes before the collection of the breath sample, in order to ensure that the person to be tested
does not smoke, regurgitate, or place anything in his mouth except for the mouthpiece used in the test.
1999 AC, R 325.2655(1)(e). We believe the evidence indicated that the officer who administered the
test followed proper observation procedures. Because defendant does not allege that he placed
anything in his mouth or regurgitated before the test was administered, and because there is no evidence
indicating that the test results were inaccurate, any technical violations of the administrative rules do not
require suppression of the breath test evidence. Wujkowski, supra at 187; Rexford, supra at 378.
Defendant next contends that he was denied due process of law when prior bad acts evidence
was revealed to the jury. During voir dire, the prospective jurors were asked whether they knew
defendant. One of the prospective jurors stated that he had previously worked with defendant. He did
not know how long it had been since they had worked together, but he volunteered the information that
defendant had been wearing a tether at that time. The juror further stated that his working with
defendant would not influence him in deciding the case. Defendant did not object to the prospective
juror’s statement. Because defendant has not identified a plain error that was outcome determinative,
this issue is not preserved for appellate review and does not warrant relief. People v Grant, 445 Mich
535, 547, 553; 520 NW2d 123 (1994).
Defendant next contends that the prosecutor engaged in misconduct when he discussed the facts
surrounding defendant’s arrest, during voir dire. The prosecutor asked prospective jurors if they were
familiar with the symptoms evident when a person is under the influence of alcohol, including stumbling,
slurring of speech, bloodshot or glassy eyes, and impaired memory. Defendant’s trial counsel did not
object to the prosecutor’s voir dire questions regarding the symptoms of alcohol intoxication. 2 Again,
because defendant has not identified a plain error that was outcome determinative, this issue is not
preserved for appellate review and does not warrant relief. Id.
2
Defense counsel did later object that the prosecution was effectively making an opening statement
during voir dire, which objection the trial court sustained. However, that objection was not related to
the prosecutor’s voir dire questions regarding the symptoms of alcohol intoxication.
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Finally, defendant contends that the trial court employed an impermissible factor at sentencing.
We believe that the circuit court properly considered the fact that defendant fled the court’s jurisdiction
while on bond. A sentencing court may consider evidence of other criminal behavior as an aggravating
factor when determining an appropriate sentence. People v Shavers, 448 Mich 389, 393; 531 NW2d
165 (1995).
Affirmed.
/s/ Janet T. Neff
/s/ Michael R. Smolenski
/s/ Patrick M. Meter
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