If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

April 11, 2019

v No. 342883

Clinton Circuit Court

ROBERT JOSEPH PADO, also known as 

VINCENT ROBERT ROCX,

LC No. 2017-009935-FH

Defendant-Appellant.

Before: SWARTZLE, P.J., and CAVANAGH and CAMERON, JJ.

PER CURIAM.

Defendant, Robert Pado, appeals his jury-trial conviction of operating a vehicle while 

intoxicated, third offense (OWI-III), MCL 257.625(1); MCL 257.625(9)(c). The trial court 

sentenced Pado as a second-offense habitual offender, MCL 769.10, to a term of 13 to 90

months’ imprisonment. Pado alleges that the trial court deprived him of his rights to due process 

and to present a defense when it dispensed with oral argument before denying his motion to 

dismiss or, in the alternative, to suppress evidence. We affirm. 

A police officer stopped Pado for driving his pickup truck southbound in the northbound 

lane of a divided highway in Clinton County. When the officer approached the truck, he saw an 

open, half-empty bottle of whiskey in the driver’s side of the truck. According to the officer, he 

“smelled an overwhelming odor of intoxicants” coming from Pado and his vehicle. Pado said he

had been “deejaying” at an event and that he drank two beers. He explained that he was on the 

wrong side of the road because he was unfamiliar with the area and had realized his mistake just 

before the officer stopped him.

The officer asked Pado to perform a series of field sobriety tests. The officer detected 

nystagmus, an involuntary twitching of the eyes that can be a sign of intoxication, in both of 

Pado’s eyes. Pado also failed a counting evaluation. Following the field sobriety tests, the 

officer arrested Pado and drove him to jail where Pado provided two breath samples for the 

breathalyzer test. The first sample indicated a blood alcohol content (BAC) of 0.15 percent and 
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the second sample was “technically refused” because Pado did not provide a steady breath. Pado

was charged with operating a vehicle while intoxicated. 

At the final pretrial conference nine days before the trial, defense counsel informed the 

trial court that he planned to file motions that could be dispositive or would result in the 

suppression of the breathalyzer test results. The trial court instructed him to file the motions no

later than five days before the trial and indicated that it would consider them on the day of the

trial. Defense counsel filed a motion to dismiss alleging the officer lacked probable cause to 

arrest Pado. Further, defense counsel argued Pado’s breathalyzer results should have been 

suppressed due to the improper administration of the breath test. The morning of trial, the trial 

court considered and denied the motion without allowing oral argument, pursuant to MCR 

2.119(E)(3).

1 The trial court concluded that procedurally, relying on People v Ferguson, 376 

Mich 90, 93; 135 NW2d 357 (1965), “questions concerning the illegality of the acquisition of 

evidence ought not be left for trial.” Substantively, the trial court determined that, “even 

accepting the facts as alleged,” it was “satisfied there was no question the arrest here was 

lawful.” During the trial, defense counsel cross-examined the certified operator of the 

breathalyzer regarding the maintenance and accuracy of the test. He also questioned the 

arresting officer who administered the test about whether he had observed Pado for the 

appropriate length of time to allow the test to produce accurate results. After the close of 

evidence, defense counsel renewed his motion to suppress the breathalyzer evidence and the trial 

court denied it. The jury found Pado guilty. 

Pado’s sole argument on appeal is that the trial court’s decision to dispense with oral 

argument and rely only the parties’ briefing to make its ruling violated his constitutional rights to 

due process and to present a defense. We disagree. 

We review de novo whether a defendant was denied due process of law. People v 

Francisco, 474 Mich 82, 86; 711 NW2d 44 (2006). This Court reviews a decision to omit or 

limit oral argument for an abuse of discretion. Fisher v Belcher, 269 Mich App 247, 252; 713 

NW2d 6 (2005). “An abuse of discretion occurs when the court chooses an outcome that falls 

outside the range of reasonable and principled outcomes.” People v Unger, 278 Mich App 210,

217, 259; 749 NW2d 272 (2008).

The Due Process Clause of the Fourteenth Amendment “require[s] that criminal 

defendants be afforded a meaningful opportunity to present a complete defense.” People v 

Anstey, 476 Mich 436, 460; 719 NW2d 579 (2006) (quotation marks and citation omitted). The 

right to present a defense encompasses “[t]he right to offer the testimony of witnesses,”

Washington v Texas, 388 US 14, 19; 87 S Ct 1920; 18 L Ed 2d 1019 (1967), as well as defense 

counsel’s ability “to argue a reasonable inference from evidence adduced at trial,” People v 

 1 This court rule provides: “A court may, in its discretion, dispense with or limit oral arguments 

on motions, and may require the parties to file briefs in support of and in opposition to a 

motion.” MCR 2.119(E)(3). 
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Stokes, 312 Mich App 181, 207; 877 NW2d 752 (2015), vacated in part on other grounds 501 

Mich 918 (2017). The right to present a defense further protects a defendant’s ability to “put 

before a jury evidence that might influence the determination of guilt,” and to have access to 

exculpatory evidence. Anstey, 476 Mich at 460. 

Pado’s claim lacks merit because he had a full opportunity to brief the issue and have his 

arguments considered by the trial court. First, the trial court reviewed Pado’s motion and brief in 

support and ruled on it before the trial. Second, defense counsel engaged in lengthy crossexamination of the certified operator of the breathalyzer and of the arresting officer about the test 

and whether the officer observed Pado for the appropriate length of time before administering the 

test. Finally, at the close of evidence Pado renewed his motion, and the trial court again denied 

it. The trial court did not violate Pado’s constitutional right to due process.

Moreover, MCR 2.119(E)(3) provides that “[a] court may, in its discretion, dispense with 

or limit oral arguments on motions,” and Pado raises no argument that the trial court abused its 

discretion in doing so. Indeed, no abuse of discretion occurred under the circumstances of this 

case. Although a trial court may abuse its discretion in limiting argument under MCR 

2.119(E)(3) when a party is not afforded an adequate opportunity to present an argument by brief 

or oral argument, see People v Leonard, 224 Mich App 569, 578-579; 569 NW2d 663 (1997), 

this Court has repeatedly concluded that there is no abuse of discretion when the trial court 

dispenses with oral arguments after the parties have fully briefed the issues. See Fast Air, Inc v 

Knight, 235 Mich App 541, 550; 599 NW2d 489 (1999) (concluding that there was “no abuse of 

discretion . . . where the trial court was fully apprised of the parties’ positions, by way of the 

parties’ briefs, before rendering a decision”); American Transmission, Inc v Channel 7 of 

Detroit, Inc, 239 Mich App 695, 709; 609 NW2d 607 (2000) (“Because, as the trial court noted, 

the parties had thoroughly briefed the issues, we cannot find that the court abused its discretion 

in dispensing with oral argument.”).

The trial court did not abuse its discretion when it ruled without hearing oral argument 

because Pado submitted a brief in support of his motion and the trial court reviewed the briefing 

and ruled accordingly. See Fast Air, Inc, 235 Mich App at 550; American Transmission, Inc, 

239 Mich App at 709. Unlike Leonard, 224 Mich App at 579, this case does not involve an 

especially complex issue requiring a lengthy brief. Although Pado further argues that “[t]he 

problem is the record is far too scant to be adequate for appellate review,” he does not explain 

how the lack of oral argument resulted in prejudice to his appeal. See Westland v Kodlowski, 

298 Mich App 647, 662; 828 NW2d 67 (2012), rev’d in part on other grounds 495 Mich 871 

(2013) (holding that “the inability to present oral argument is not a significant detriment to 

success on appeal”).

Pado does not raise any argument concerning the trial court’s substantive ruling with 

respect to his motion to dismiss or suppress evidence. Instead, he merely argues that “[i]f the 

judge [had] granted the motion and suppressed the breathalyzer evidence it would be outcome 

determinative,” and that he “thus can show the necessary prejudice.” However, the 

overwhelming evidence of Pado’s guilt, including driving on the wrong side of a divided 

highway, smelling of alcohol, his admission of drinking alcohol before driving, and having an

open alcohol container in his truck, demonstrates that any error in admitting the breathalyzer 
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results was harmless. See People v Mateo, 453 Mich 203, 214; 551 NW2d 891 (1996)

(concluding that “for some types of error, such as the erroneous admission . . . of evidence, 

overwhelming evidence of guilt will ordinarily lead to the conclusion that the error was 

harmless”). 

Affirmed. 

/s/ Brock A. Swartzle 

/s/ Mark J. Cavanagh 

/s/ Thomas C. Cameron