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

revision until final publication in the Michigan Appeals Reports.

-1-

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,

FOR PUBLICATION

February 4, 2021

9:10 a.m.

v No. 350380

Manistee Circuit Court

DAVID MARK PARROTT, LC No. 19-016833-AR

Defendant-Appellant.

Before: CAMERON, P.J., and BOONSTRA and LETICA, JJ.

CAMERON, P.J.

In this intoxicated-driving prosecution, defendant, David Mark Parrott, appeals three 

district court orders that: (1) prohibited defendant from using his preliminary breath test (PBT) 

results at trial; (2) held that the area in which defendant’s vehicle was stuck was, as a matter of 

law, generally accessible to motor vehicles; and (3) denied defendant’s motion in limine to exclude 

evidence regarding his occupation and display of his “badge.” Defendant appealed the orders to 

the circuit court, which denied his application for leave to appeal. We then granted leave to 

appeal.

1

 For the reasons stated in this opinion, we affirm.

I. BACKGROUND

After leaving a 2018 Christmas day gathering at approximately 6:20 p.m., defendant lost 

control of his car and slid off the roadway. Defendant then “backed down [an] embankment” and 

into a “flat area” that turned into a field. Defendant spent the next 30 to 35 minutes attempting to 

return his car to the roadway. Unable to extricate his car, a tow truck driver was called to assist

him. Shortly after the tow truck driver arrived at the scene, he called the police because he

suspected that defendant was intoxicated. The Manistee County Sheriff’s Office dispatched 

 

1 People v Parrott, unpublished order of the Court of Appeals, entered December 11, 2019 (Docket 

No. 350380).
-2-

Sergeant Paul Woroniak to the scene at 7:08 p.m. He arrived approximately ten minutes later and 

saw defendant’s car stuck “in the ditch,” five to 10 feet from the roadway.

Sergeant Woroniak also suspected that defendant was intoxicated. He noted that defendant 

smelled like alcohol, had “bloodshot and watery” eyes, and had “labored” speech. After defendant 

denied that he had consumed alcohol, Sergeant Woroniak attempted to administer a field sobriety 

test to defendant, but abandoned the test because defendant was not following his instructions. 

About this time, defendant showed Sergeant Woroniak “his badge” “[a]nd inquired if anything 

could be done.”2 Undeterred, Sergeant Woroniak continued his investigation. Defendant

consented to a PBT at the scene. The PBT result showed an unlawful blood alcohol concentration 

(BAC) of 0.109.

3

Sergeant Woroniak informed defendant that the PBT result suggested that defendant was 

operating his vehicle over the legal limit. In response, defendant told Sergeant Woroniak “that he 

was going to lose a quarter of his pay,” and defendant again asked him “what could be done.” 

Sergeant Woroniak placed defendant under arrest for operating while intoxicated, MCL 

257.625(1), and transported defendant to a hospital where his blood was drawn at 8:08 p.m. The 

chemical test revealed that defendant’s BAC was 0.152 grams of alcohol per 100 milliliters of 

blood. Defendant was then charged with operating while intoxicated.

In preparation for trial, defendant retained an expert who would testify that, at the time 

defendant was operating his vehicle on the roadway, his BAC was likely below the legal limit and

increased above the legal limit after the accident. Specifically, the expert believed that “at all 

relevant times prior to about 7:10 p.m., [defendant’s] blood-alcohol concentration would be 

expected to be less than the per se level of 0.080g/dL” required for a conviction. Defendant 

asserted that his PBT result must be admitted at trial because the result supported his rising BAC 

defense.4 

The district court then decided several motions that are at issue in this appeal. Specifically, 

the district court granted the prosecutor’s motion to exclude any reference to the PBT result at trial

under MCL 257.625a(2)(b). The district court denied defendant’s motion requesting the court to 

hold that the area where defendant’s car was found was not “generally accessible to motor 

 

2 Defendant was a district court judge at the time of the arrest.

3 Training related to the operation of a PBT required Sergeant Woroniak to truncate the result to 

0.10.

4 We note that defendant did not move the trial court for a hearing in accordance with Daubert v 

Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993). Indeed, 

defendant’s first explicit request for a Daubert hearing is in his reply brief on appeal. Such a 

hearing would have allowed this Court to more thoroughly evaluate whether defendant’s PBT 

result is necessary for the expert to render an admissible opinion or is merely a helpful datapoint 

for defendant’s rising BAC theory. 
-3-

vehicles” under MCL 257.625(1).5 Lastly, the court denied defendant’s motion to exclude any 

reference to defendant’s occupation and his display of a “badge” under MRE 401 and MRE 403.

Defendant appealed these decisions to the circuit court, which denied defendant’s 

interlocutory application for leave to appeal. This Court then granted his interlocutory application.

II. ANALYSIS

A. RIGHT TO PRESENT A COMPLETE DEFENSE—THE PBT RESULT

Defendant argues that the district court erred when it excluded “the PBT because the 

application of the evidentiary statute—MCL 257.625a(2)(b)—unreasonably offends [his] 

[c]onstitutional right to present a complete defense.” We disagree.

“We review issues of constitutional law de novo.” People v Benton, 294 Mich App 191, 

203; 817 NW2d 599 (2011). “Preserved evidentiary rulings are reviewed for an abuse of 

discretion.” People v Unger, 278 Mich App 210, 216; 749 NW2d 272 (2008). A trial court abuses 

its discretion when it “chooses an outcome that falls outside the range of reasonable and principled 

outcomes.” Id. at 217. “[D]ecisions regarding the admission of evidence frequently involve 

preliminary questions of law, e.g., whether a rule of evidence or statute precludes admissibility of 

the evidence. This Court reviews questions of law de novo.” People v Lukity, 460 Mich 484, 488; 

596 NW2d 607 (1999). Thus, “when such preliminary questions of law are at issue, it must be 

borne in mind that it is an abuse of discretion to admit evidence that is inadmissible as a matter of 

law.” Id.

MCL 257.625a(2)(b) addresses when PBT results are admissible for intoxicated-driving 

prosecutions. “Our overriding goal for interpreting a statute is to determine and give effect to the 

Legislature’s intent. The most reliable indicator of the Legislature’s intent is the words in the 

statute.” People v Peltola, 489 Mich 174, 181; 803 NW2d 140 (2011) (citations omitted). “The 

Legislature is presumed to have intended the meaning it plainly expressed in the statute.” People 

v Allen, 499 Mich 307, 314-315; 884 NW2d 548 (2016).

PBT results are generally not admissible in intoxicated-driving prosecutions. Under MCL 

257.625a(2)(b), PBT results are admissible only:

(i) To assist the court or hearing officer in determining a challenge to the 

validity of an arrest[.]

(ii) As evidence of the defendant’s breath alcohol content, if offered by the 

defendant to rebut testimony elicited on cross-examination of a defense witness that 

 

5 The prosecutor charged defendant with either operating his vehicle on a highway or operating 

his vehicle in an area generally accessible to motor vehicles while intoxicated, which could include 

the 30 to 35 minutes that defendant attempted to get his car back on the roadway.
-4-

the defendant’s breath alcohol content was higher at the time of the charged offense 

than when a chemical test was administered under [MCL 257.625a(6)].

(iii) As evidence of the defendant’s breath alcohol content, if offered by the 

prosecution to rebut testimony elicited on cross-examination of a prosecution 

witness that the defendant’s breath alcohol content was lower at the time of the 

charged offense than when a chemical test was administered under [MCL 

257.625a(6)].

Therefore, “under the Michigan Vehicle Code,” PBT results “are only admissible to challenge the 

validity of an arrest or to rebut testimony regarding a defendant’s breath alcohol content at the 

time of the offense.” People v Booker, 314 Mich App 416, 420; 886 NW2d 759 (2016). As a 

practical matter, this means that PBT results are rarely admitted at trial for intoxicated-driving 

prosecutions.

The parties agree that MCL 257.625a(2)(b) prohibits defendant from admitting his PBT

result to support his rising BAC defense. The dispute is whether this statutory restriction imposes 

an unconstitutional impediment on defendant’s right to present a complete defense.

“[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a 

complete defense.” Crane v Kentucky, 476 US 683, 690; 106 S Ct 2142; 90 L Ed 2d 636 (1986) 

(quotation marks and citation omitted). Specifically, “[a] criminal defendant must be provided a 

meaningful opportunity to present evidence in his or her own defense.” People v Bosca, 310 Mich 

App 1, 47; 871 NW2d 307 (2015). However, a defendant’s right to present a complete defense “is 

not unlimited and is subject to reasonable restrictions.” People v King, 297 Mich App 465, 473; 

824 NW2d 258 (2012). A defendant’s “right to present a complete defense may, in appropriate 

cases, bow to accommodate other legitimate interests in the criminal trial process.” Id. (quotation 

marks and citation omitted).

As a result, state and federal rulemakers have broad latitude under the 

Constitution to establish rules excluding evidence from criminal trials. Such rules 

do not abridge an accused’s right to present a defense so long as they are not 

arbitrary or disproportionate to the purposes they are designed to serve. [United 

States v Scheffer, 523 US 303, 308; 118 S Ct 1261; 140 L Ed 2d 413 (1998) 

(quotation marks and citation omitted).]

1. ARBITRARINESS

Defendant first argues that MCL 257.625a(2)(b)’s restrictions are arbitrary. To analyze 

defendant’s claim, we must examine the purpose the statute is designed serve.

This Court has previously held that “[t]he long-range goal of the drunk driving laws is to 

reduce the carnage caused by drunk drivers by preventing intoxicated persons from driving.” 

People v Tracy, 186 Mich App 171, 179; 463 NW2d 457 (1990). Additionally, this Court has 

concluded that the Legislature’s “purpose of the PBT use restrictions seems to be to prevent 

unwarranted convictions based solely on evidence obtained from a testing system which is 

comparatively unreliable; the breath, blood, and urine test to which all drivers impliedly consent 

are more accurate and may be administered in more controlled environments than PBTs.” Id. See 
-5-

also Scheffer, 523 US at 309 (“State and Federal Governments unquestionably have a legitimate 

interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial.”).

In this case, defendant asserts that MCL 257.625a(2)(b) is arbitrary because the statute 

lacks any “principled or reasoned basis[.]” However, we first recognize that the Legislature has 

concluded that the results of chemical tests, not PBT results, are admissible for intoxicated-driving 

prosecutions. See MCL 257.625a(6). An operator of a motor vehicle who is arrested for 

intoxicated driving is required to take a chemical test that is specifically designed to precisely 

determine the operator’s BAC; the result of this test is admissible at trial as evidence of the 

operator’s BAC. Id. The Legislature has concluded that PBTs are different; they are devices 

primarily used by police as an investigative tool to determine whether there is probable cause to 

arrest a suspected intoxicated driver. MCL 257.625a(2)(b)(i).6 And unlike chemical tests, a PBT

result is statutorily inadmissible at trial, unless the PBT result rebuts certain testimony elicited 

during cross-examination. See MCL 257.625a(2)(b)(ii) and (iii).

The Legislature’s different treatment of these BAC testing devices reflects its assessment 

that they are not equivalent. As already stated, we have previously recognized that chemical tests 

“to which all drivers impliedly consent are more accurate [than PBTs] and may be administered in 

more controlled environments[.]” Tracy, 186 Mich App at 179. Conversely, PBTs are 

“comparatively unreliable.” Id. PBTs are normally administered in the field, are tested and 

calibrated for accuracy less frequently than chemical tests,7and are primarily designed to assist 

police officers in making on-the-spot decisions about whether probable cause exists to make an 

arrest.

Our Legislature’s concern about the reliability of PBT results has considerable support.

Many legislatures in the country have passed similar laws that expressly restrict the admission of 

PBT results for intoxicated-driving prosecutions due to concerns about the test’s reliability.8 Most 

 

6

Indeed, even the Legislature’s description of the test as preliminary reflects that the test is in 

preparation for something else.

7 Mich Admin Code, R 325.2653(1) requires “evidential breath alcohol test instrument[s]” to be 

“verif[ied] . . . for accuracy at least once each calendar week, or more frequently as the department 

may require.” However, PBT devices are required to be tested and calibrated for accuracy only 

on a monthly basis. Mich Admin Code, R 325.2653(2).

8 See, e.g., Colo Rev Stat 42-4-1301(6)(i)(III) (Colorado); DC Code 50-1904.01(c) (District of 

Columbia); Haw Rev Stat 291E-11(f) (Hawaii); Ind Code 9-30-6-5(d) (Indiana); Iowa Code 

321J.5(2) (Iowa); Ky Rev Stat Ann 189A.104(2) (Kentucky); Minn Stat 169A.41(2) (Minnesota); 

Mo Rev Stat 577.021(3) (Missouri); Nev Rev Stat 484C.150(3) (Nevada); NC Gen Stat 20-16.3(d) 

(North Carolina); ND Cent Code 39-20-14(3) (North Dakota); 75 Pa Cons Stat 1547(c) 

(Pennsylvania); 31 RI Gen Laws 31-27-2.3(a) (Rhode Island); Vt Stat Ann, tit 23, § 1203(f) 

(Vermont); Va Code Ann 18.2-267(E) (Virginia); W Va Code 17C-5-5 (West Virginia); Wis Stat 

343.303 (Wisconsin). See also United States v Iron Cloud, 171 F3d 587, 590 (CA 8, 1999) 

(“[A]lmost every state that has addressed the issue has refused to admit [PBT results] for purposes 

other than probable cause.”)
-6-

states bar PBT results at trial because they have concluded that the results are inherently unreliable. 

Our Legislature permits the use of PBTs to assist police officers in determining whether there is 

probable cause to arrest, but the PBT result may not be admitted in intoxicated-driving trials, unless 

the result rebuts certain testimony elicited during cross-examination. While defendant questions

the logic of this policy, the broad, national consensus favoring the restriction of PBT results lends 

further support that our Legislature has not arbitrarily imposed restrictions on the use of PBT

results at trial.

9 We conclude that MCL 257.625a(2)(b) reflects the exercise of legislative authority 

that is consistent with our government’s “legitimate interest in ensuring that reliable evidence is 

presented to the trier of fact in a criminal trial.” See Scheffer, 523 US at 309.

10

We further conclude that the admission of a second, less reliable BAC test also has the 

potential to confuse the jury. The prosecution argues that the legislative history of MCL 

257.625a(2)(b) suggests an intent to restrict the use of PBT results in order “to prevent

unwarranted . . . jury confusion[.]” The prosecution points to a prior version of MCL 257.625a

 

9 Defendant asks us to adopt an analysis similar to that provided in Fischer v Ozaukee Co Circuit 

Ct, 741 F Supp 2d 944 (ED Wis, 2010), which involved the United States District Court for the 

Eastern District of Wisconsin granting habeas relief and vacating the defendant’s intoxicateddriving conviction after the court concluded that Wisconsin’s statute barring PBT results at trial 

violated the defendant’s constitutional right to present a defense. However, this opinion is not 

binding on this Court, and we find its analysis unpersuasive. Abela v Gen Motors Corp, 469 Mich 

603, 607; 677 NW2d 325 (2004) (“Although lower federal court decisions may be persuasive, they 

are not binding on state courts.”) Indeed, we have not found a single appellate court that has 

adopted the Fischer Court’s analysis. Even the Wisconsin state appellate court continues to uphold 

Wisconsin’s PBT statute. See State v Giles, 389 Wis 2d 377; 2019 WI App 65; 936 NW2d 419 

(2019) (holding that the federal district court’s Fischer is not binding authority and that “the circuit 

court did not violate [the defendant’s] constitutional right to a defense by excluding the PBT results 

and associated expert testimony”).

10 Defendant asserts that it is illogical to impose a restriction on the admission of PBT results for 

intoxicated-driving prosecutions, yet permit the admission of PBT results in other criminal and 

civil cases. We disagree. With respect to cases involving minors in possession of alcohol, PBT 

results are admissible to show the presence of alcohol; the amount of alcohol is essentially 

irrelevant so long as alcohol is present in the minor’s system. Defendant is correct that PBT results 

are admissible in prosecutions where the defendant is in possession of a firearm while he or she

has a BAC of “.08 or more grams per 100 milliliters of blood[.]” MCL 750.237(1)(b); Booker, 

314 Mich App at 419-421. However, as discussed in detail in this opinion, the Legislature’s

decision to exclude PBT results in intoxicated-driving prosecutions is reflective of a sound policy 

decision. We will not pass judgment on the Legislature’s failure to create a similar policy with 

respect to prosecutions under MCL 750.237(1)(b).
-7-

that allowed defendants to admit their PBT results in support of a rising BAC defense.11 But in 

1994, the Legislature amended MCL 257.625a to restrict the use of PBT results at trial such that 

neither the prosecutor nor the defendant may move to admit PBT results at trial unless the results 

rebut testimony elicited during cross-examination. The amendment has undoubtedly had an effect

on intoxicated-driving trials. For instance, because PBT results are rarely admitted at trial, 

hearings concerning the accuracy, reliability, and scientific support underlying the PBT, as 

compared to a chemical test, rarely occur. Furthermore, jury confusion over what weight should 

be given to the result from a less reliable device does not generally occur. We conclude that our 

Legislature has a legitimate interest in limiting collateral litigation and jury confusion concerning 

the result of comparatively unreliable breath tests. See Scheffer, 523 US at 309. When viewed in 

this context, MCL 257.625a(2)(b) simply does not reflect an arbitrary exercise of a governmental 

authority.

2. DISPROPORTIONALITY 

Defendant next argues that MCL 257.625a(2)(b) is disproportionate because the statute’s 

exceptions favor the prosecution. MCL 257.625a(2)(b) provides two narrow exceptions that allow 

for the admission of PBT results at trial. Prosecutors can move for the admission of a PBT result 

when the result rebuts testimony elicited during a defendant’s cross-examination that the 

defendant’s BAC was lower at the time of driving than when the chemical test was administered, 

thereby rebutting the defendant’s assertion of a rising BAC. MCL 257.625a(2)(b)(iii). And 

defendants can move for its admission when the result rebuts testimony elicited during the 

prosecutor’s cross-examination that the defendant’s BAC was higher at the time of driving than 

when the chemical test was administered, thereby rebutting the prosecutor’s assertion of a 

decreasing BAC. MCL 257.625a(2)(b)(ii). Defendant argues that defendants are rarely able to 

 

11 MCL 257.625a(2)(b), as amended by 1994 PA 450, provided as follows:

The results of a preliminary chemical breath analysis are admissible in a criminal 

prosecution for a crime enumerated in section 625c(1) or in an administrative 

hearing for 1 or more of the following purposes:

(i) To assist the court or hearing officer in determining a challenge to the 

validity of an arrest. This does not limit the introduction of other competent 

evidence offered to establish the validity of an arrest.

(ii) As evidence of the defendant’s breath alcohol content, if offered by the 

defendant.

(iii) As evidence of the defendant’s breath alcohol content, if offered by the 

prosecution to rebut testimony or other evidence, including but not limited to 

testimony elicited on cross-examination of a prosecution witness, that is offered or 

elicited to prove that the defendant’s breath alcohol content was lower at the time 

of the charged offense than when a chemical test was administered pursuant to 

subsection (6).
-8-

introduce their PBT results at trial under this statutory scheme because prosecutors do not crossexamine defense witnesses about a possible declining BAC when (1) the prosecutor knows that 

the PBT result is higher, not lower, than the result of the chemical test and (2) the prosecutor 

already has the result of a chemical test that is evidence of intoxication. Defendant asserts that 

prosecutors are far more successful moving to admit PBT results at trial because defendants, eager 

to show that his or her BAC was lower at the time of driving, open the door during their crossexamination allowing for the admission of a PBT result that is detrimental to their case. This 

imbalance, defendant argues, is “diabolical” and renders MCL 257.625a(2)(b) disproportionate. 

We disagree.

In MCL 257.625a, the Legislature equalized how both defendants and the prosecution can 

use PBT results. The plain language of the statute treats defendants and the prosecutors the same: 

neither may use PBT results, unless the result rebuts certain testimony regarding the defendant’s 

BAC at the time of the offense. MCL 257.625a(2)(b)(ii) and (iii). The statute provides neither 

party an advantage. And even if we were to accept defendant’s premise that prosecutors tend to 

have greater success when moving for the admission of PBT results, any imbalance is due to a

defendant’s cross-examination that opens the door to an unfavorable PBT result. We fail to see 

how a defendant’s ill-advised cross-examination of a government witness renders a neutral statute 

unconstitutionally disproportionate. Accordingly, MCL 257.625a(2)(b) does “not abridge [a

defendant’s] right to present a defense” because it is “not arbitrary or disproportionate to the 

purposes [it is] designed to serve.” See Scheffer, 523 US at 308.

3. APPLICATION OF MCL 257.625a(2)(b) AS TO DEFENDANT

Our conclusion that MCL 257.625a(2)(b) is not arbitrary or disproportionate does not end 

our analysis. We must next consider whether the application of MCL 257.625a(2)(b) in this case 

would deprive defendant of his constitutional right to present a complete defense.

Defendant argues that prohibiting him from admitting his PBT result will deprive him of a 

meaningful opportunity to present a complete defense because he will not be able to rebut the 

presumption in MCL 257.625a(6)(a). MCL 257.625a(6)(a) provides as follows:

The amount of alcohol or presence of a controlled substance or other 

intoxicating substance in a driver’s blood or urine or the amount of alcohol in a 

person’s breath at the time alleged as shown by chemical analysis of the person’s 

blood, urine, or breath is admissible into evidence in any civil or criminal 

proceeding and is presumed to be the same as at the time the person operated the 

vehicle.

Defendant argued before the district court that he intended to produce and qualify an expert 

witness at trial, who would testify that “at all relevant times prior to about 7:10 p.m., [defendant’s]

blood alcohol concentration would be expected to be less than the per se level of 0.080 g/dL.” 

According to defendant, “the data points of 0.10 and 0.152[,] . . . along with other relevant 

testimony from witnesses and the simple physiology of the human body[,] will support his 

defense[.]” In short, defendant seeks to introduce his PBT result into evidence to support his 

argument that his BAC was below the legal limit at the time his vehicle left the roadway.
-9-

On appeal, defendant argues generally that he will “most likely be deprived of an 

opportunity to present any defense at all” if the PBT result is not admitted as substantive evidence. 

Notably, defendant stops short of arguing that he will be deprived of an expert witness if the PBT 

result is not admitted as substantive evidence at trial. Indeed, there seems to be no dispute that 

defendant could still present evidence concerning (1) his weight and body type, (2) the quantity 

and kind of alcohol and food he consumed, (3) the timing of any consumption, and (4) the time 

delay between his operation of the vehicle and the blood draw. Defendant could then present 

expert testimony concerning how the body metabolizes alcohol to support his argument that his 

BAC was lower at the time he was operating his motor vehicle and increased as time passed. As 

conceded by defense counsel at oral argument, the issue here is that defendant’s chemical test 

result is so far above the legal limit that the PBT result is necessary because without it the expert’s 

opinion testimony appears speculative. While the PBT result may be helpful to the defense, 

defendant—like defendants before him—may still present expert testimony that his BAC was 

lower at the time he was driving because his BAC was increasing as the evening continued. He 

simply may not use his PBT result to do so.

Therefore, we conclude that defendant is not deprived of the meaningful opportunity to 

present a complete defense.

12 Consequently, the district court did not err when it held that the PBT 

result is inadmissible as substantive evidence under MCL 257.625a(2)(b).

B. MCL 257.625a(2)(b)’S ALLEGED “CONFLICT” WITH MRE 702 AND MRE 703

Defendant also argues that the PBT results are admissible under MRE 702 and MRE 703 

and that MRE 702 and MRE 703 “prevail over” MCL 257.625a(2)(b). We disagree.

Under our Constitution, “the Supreme Court’s rule-making power in matters of court 

practice and procedure is superior to that of the Legislature.” People v McDonald, 201 Mich App 

270, 272; 505 NW2d 903 (1993). “The rules of practice and procedure include the rules of 

evidence.” Id. However, the Legislature is not “wholly without power to enact statutes governing 

the admissibility of evidence[.]” Id. “[T]he Legislature may enact statutory rules of evidence that 

do not conflict with the Michigan Rules of Evidence, and those statutory rules are enforceable until 

superseded by the Supreme Court.” Id. at 273. “[S]tatutory rules of evidence that reflect policy 

considerations limited to the orderly dispatch of judicial business, i.e., court administration, are 

procedural and violate Const 1963, art 6, § 5.” People v Watkins, 491 Mich 450, 474; 818 NW2d 

296 (2012) (quotation marks omitted). But “statutory rules of evidence that reflect policy 

considerations over and beyond matters involving the orderly dispatch of judicial business are 

substantive, and in the case of a conflict with a court rule, the legislative enactment prevails.” Id. 

(quotation marks omitted).

 

12 See Giles, 389 Wis 2nd at 4. (holding that “[T]he circuit court did not violate [the defendant’s] 

constitutional right to a defense by excluding the PBT results and associated expert testimony.”); 

See also State v Shuler, 168 Ohio App 3d 183; 858 NE2d 1254, 1257 (2006) (holding that the trial 

court’s exclusion of an unreliable PBT result for evidential purposes did not violate the defendant’s 

federal constitutional rights to due process or compulsory process.)
-10-

Even when assuming that MCL 257.625a(2)(b) irreconcilably conflicts with MRE 702 and 

MRE 703, we conclude that defendant would not be entitled to the relief he seeks, i.e., admission 

of the PBT result under MRE 702 and MRE 703. This is because MCL 257.625a(2)(b) is 

substantive—not procedural—in that it is based on “policy considerations over and beyond matters 

involving the orderly dispatch of judicial business.” See Watkins, 491 Mich at 467. Indeed, as 

already discussed in detail, there are legitimate policy reasons underlying the Legislature’s 

decision to allow admission of PBT results only in limited circumstances. Therefore, even to the 

extent that MCL 257.625a(2)(b) irreconcilably conflicts with MRE 702 and MRE 703, MCL 

257.625a(2)(b) prevails. See id. at 472.

C. MOTION TO DISMISS

Defendant next argues that the district court erred by denying his motion to dismiss his 

criminal charge because, under the plain language of MCL 257.625(1), his vehicle was not found 

in an area that was “generally accessible to motor vehicles.” We disagree.

“Whether a defendant’s conduct falls within the scope of a penal statute is a question of 

statutory interpretation that is reviewed de novo.” People v Rea, 500 Mich 422, 427; 902 NW2d 

362 (2017). “The Michigan Vehicle Code, MCL 257.1 et seq., prohibits a person from operating 

a motor vehicle while intoxicated.” Id. at 428. MCL 257.625(1) provides in relevant part as 

follows:

A person, whether licensed or not, shall not operate a vehicle upon a 

highway or other place open to the general public or generally accessible to motor 

vehicles, including an area designated for the parking of vehicles, within this state 

if the person is operating while intoxicated.

“Accordingly, MCL 257.625(1) prohibits operating a vehicle while intoxicated in three types of 

locations: (1) upon a highway, (2) in a place open to the general public, or (3) in a place generally 

accessible to motor vehicles.” Rea, 500 Mich at 428. As relevant to this appeal, whether a 

particular area is “generally accessible to motor vehicles” “involves a legal question that must be 

resolved by the court.” Id. at 428 n 2.

“[T]he Michigan Vehicle Code does not define the phrase ‘generally accessible.’ ” Rea, 

500 Mich at 429. However, our Supreme Court decided that “the plain and ordinary meaning of 

the phrase ‘generally accessible’ means ‘usually capable of being reached.’ ” Id. at 429-430. In 

doing so, the Court held:

The word “generally” is an adverb that modifies the adjective “accessible.” 

“Generally” is defined as “in a general manner”; “in disregard of specific instances 

and with regard to an overall picture”; and “as a rule: USUALLY.” The term 

“accessible” means “providing access”; “capable of being reached: being within 

reach” and “capable of being used or seen.” Therefore, the plain and ordinary 

meaning of the phrase “generally accessible” means “usually capable of being 

reached.”

This phrase must be considered in its statutory context: “other 

place . . . generally accessible to motor vehicles.” The phrase “generally 
-11-

accessible” modifies the preceding noun phrase “other place.” Accordingly, the 

prohibition in MCL 257.625(1) against operating a vehicle while intoxicated does 

not apply to every place. Instead, the statute’s prohibition applies only to highways, 

to other places open to the general public, and to other places that are generally 

accessible—that is, usually or ordinarily capable of being reached. Finally, we 

must incorporate the phrase “to motor vehicles,” which is an adverbial prepositional 

phrase that modifies “generally accessible.” The Michigan Vehicle Code defines 

“motor vehicle” as “every vehicle that is self-propelled . . . .” Therefore, as a whole, 

the relevant statutory provision prohibits an intoxicated person from operating a 

vehicle in a place that is usually capable of being reached by self-propelled 

vehicles. [Rea, 500 Mich at 429-431 (citations and footnotes omitted).]

In this case, defendant argued in his motion to dismiss that the prosecution would be unable 

to prove that defendant was intoxicated while he was driving on the roadway because he was still 

absorbing alcohol. Defendant also argued that his intoxication level at the time that his vehicle 

was in the private field was irrelevant because the private field, which was “surrounded by brush 

and trees, and constituted raw, undeveloped and uncultivated land,” was not generally accessible 

to motor vehicles. Defendant further argued that “[t]here [were] no curb cuts, driveways, twotracks, trails or any other features or structures designed for or adapted to the usual and ordinary 

access of that part of the field by motor vehicles.” Defendant noted that, because of the steep 

embankment and his inability to extricate the vehicle from the field, “it cannot possibly be said 

that that area is usually or ordinarily or easily capable of being reached by motor vehicles.” 

The prosecution responded by arguing that the field was an area that was generally 

accessible. The prosecution explained that its theory of the case was that defendant’s BAC was 

above the legal limit at the time he was driving on the roadway. Therefore, the prosecution

indicated that it intended to prove that defendant was operating his vehicle on a highway and/or in 

an area generally accessible to motor vehicles while he was intoxicated.

At an evidentiary hearing, the prosecutor asked Sergeant Woroniak to describe “where the 

vehicle was located in relation to [Chrestensen] Road and Milarch Road when [he] arrived on [the]

scene.” The following exchange then occurred:

Sergeant Woroniak: . . . [Chrestensen] Road runs east and west, Milarch

Road runs north and south. The vehicle was located in a ditch area, which would 

be off the main travel portion of the roadway, almost equal parts [Chrestensen] and 

equal parts of Milarch, but in the ditch.

The Prosecutor: What part of the intersection was it in? Was it in the 

southwest corner, northwest corner, northeast corner, or the southeast corner?

Sergeant Woroniak: Southwest corner.

The Prosecutor: “Southwest corner.” So, it would be south of 

[Chrestensen] road, and west of Milarch Road? Is that what we understood your 

testimony is?

Sergeant Woroniak: Correct; yes.
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The Prosecutor: Approximately, how far from each roadway?

Sergeant Woroniak: Approximately ten feet.

The Prosecutor: “Approximately ten feet”?

Sergeant Woroniak: Five to ten feet, yeah.

* * *

The Prosecutor: Do you remember which way the vehicle was facing, as 

far as directional travel out? Up here is direction of travel from where it sat 

(indicating). You know, where was the front of the car facing, what direction?

Sergeant Woroniak: . . . [I]t looked to me that the nose of the vehicle was 

facing [Chrestensen] Road.

The Prosecutor: Okay. So, to the north-northwest.

Sergeant Woroniak: Correct.

Defendant testified that, after he slid on the snow and into the brush on the edge of the 

travelled portion of Chrestensen Road on December 25, 2018, he backed his vehicle down the 

embankment and onto a flat area that turned into a field. In the spring of 2019, defendant took 

photographs of “the final location of the vehicle,” and the photographs were admitted. Defendant 

testified that one of the photographs depicted a “hole” that was from “the tire rut from [his] rightrear tire.” He further testified that “[t]he back of the car would have been immediately behind that, 

and the side of the car would have extended parallel, along the embankment, with the front of the 

car facing to the west.” Thereafter, the following line of questioning occurred:

Defense Counsel: How far were you from Milarch Road—I’m sorry—

[Chrestensen] road?

Defendant: From my measurements, from—you say [Chrestensen] Road?

Defense Counsel: The road that has the stop sign, sir.

Defendant: There were some exhibits attached. I took those measurements, 

and I tried to take as many photos as possible, to try to be as accurate as possible. 

And my measurements show that I was—how can I put this—I tried to ascertain 

the center line of [Chrestensen] Road, by measuring between—there’s a curve. 

You can see a painted curve on both sides of [Chrestensen] Road—yes—and it goes 

around a corner. So, I attempted to ascertain—the way I ascertained the center line 

of the road, is that I measured between those two curves, and then divided that in 

half, and I think they came out to be 17 feet, 9 inches. And then I measured from 

the same spot at the curve down to the rut. But exactly to the rut, because the rut is 

actually beyond the curve, and I wanted it to be perpendicular; I didn’t want it to 

be on an angle or to distort the measurement. And, you will see in this picture, I 
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found an arrow, and I put in the ground, and then I put a stick over here, to give the 

idea where I was measuring to, and the measuring came out to be 17 feet, 3 inches, 

that’s what I added to the 17 feet, 9 inches, indicated to me that my car was 35 feet 

from the center line of [Chrestensen] Road. The arrow, actually, I think I meant 

that to be the 33 feet. You can “ballpark it,” but it was two feet.

Defense Counsel: And from Milarch, same?

Defendant: No, Milarch, I was much farther away. But I stopped measuring 

because I had a 25-foot tape measure, and I measured from the curve, and I ran it 

out twice. I guess my recollection of the position of the vehicle is not the same as 

the officer’s, apparently—the Sergeant’s.

After the hearing, the district court stated that it would accept supplemental briefing. In 

defendant’s supplemental brief, he requested that the district court “order the prosecution of 

[defendant] for the alleged violation of MCL 257.625(1) be limited to” the period of time before 

“his vehicle entered the field.” With respect to whether the field was generally accessible, 

defendant argued that “[s]imply because an area is ‘accessible’ . . . does not mean that it is 

generally accessible.” Defendant further argued that “[g]enerally accessible doesn’t mean 

occasionally accessible; it doesn’t mean sometimes accessible; it doesn’t mean accessible with 

great or unusual effort or by accident; it doesn’t mean not ordinarily or not regularly.” According 

to defendant, the area where his vehicle was located was not generally accessible. Specifically, 

defendant “submit[ted] that . . . areas not designed for vehicular travel, are by their nature, areas a 

vehicle is not usually capable of accessing.” Defendant further noted that the field “contain[ed] 

natural barriers to entry, including steep embankments, [and] brush and trees along its perimeter.” 

According to defendant, he was only able to enter the field by “mere happenstance and by 

accident[.]”

Defendant also argued that, even if the prosecutor was permitted to prosecute him for his 

“conduct in the field,” the charge should be dismissed because he presented evidence at the hearing 

that “his vehicle was not within [the] boundaries of the highway after he backed down the 

embankment into the field.” Defendant cited MCL 221.20, which provides:

All highways regularly established in pursuance of existing laws, all roads 

that shall have been used as such for 10 years or more, whether any record or other 

proof exists that they were ever established as highways or not, and all roads which 

have been or which may hereafter be laid out and not recorded, and which shall 

have been used 8 years or more, shall be deemed public highways, subject to be 

altered or discontinued according to the provisions of this act. All highways that 

are or that may become such by time and use, shall be 4 rods in width, and where 

they are situated on section or quarter section lines, such lines shall be the center of 

such roads, and the land belonging to such roads shall be 2 rods in width on each 

side of such lines.

Defendant argued that because he presented evidence “that his vehicle was 35 feet from 

the centerline of Chrestensen and over 50 feet from Milarch,” he “made a prima facie showing 

that his vehicle was not within [the] boundaries of the highway after he backed down the 
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embankment into the field.” Defendant also argued that review of the video from Sergeant 

Woroniak’s body camera established that his “distance estimate is simply mistaken.” The 

prosecution also filed a supplemental brief, which largely reiterated the arguments contained in its 

original responsive pleading.

When the district court later heard oral argument, defense counsel reiterated the arguments 

contained in the pleadings and referenced testimony provided by Sergeant Woroniak and 

defendant at the earlier evidentiary hearing. Specifically, defense counsel noted that “when . . . the 

car gets down 35-feet from the center point of [Chrestensen], as [defendant] testified to, that he 

measured it, and easily almost 50 feet from the center of Milarch, at that point it was not in an area 

where it could be operated as defined by the statute.” Defense counsel also indicated that it would 

be understandable if the district court decided that additional testimony was needed before it ruled

on the motion. The prosecution requested that, under Rea, the district court “find, as a matter of 

law, that [defendant’s] vehicle was found in a place that’s generally accessible to motor 

vehicles[.]” 

The district court ruled:

I don’t think we need more factual evidence on it. You know, we have 

several exhibits that have been submitted, and [defendant] testified for his 

observations out there as well; the officer did as well.

The leading case on this, the Court agrees with Counsel that it’s People v 

Rea, Michigan Supreme Court case 500 Mich 422, that case does appear to make it 

as a matter of law for the Court to determine whether the area in question meets the 

statutory definition of potentially being a place where somebody could drive 

intoxicated.

In this particular case, the Rea court indicated the plain and ordinary 

meaning of the phrase “generally accessible” means, quote, “usually capable of 

being reached,” end quote. This particular aspect of “generally accessible to motor 

vehicles,” is what we’re looking at. “A place generally accessible to motor 

vehicles,” there’s multitudes of motor vehicles by definition. Essentially, motor 

vehicle means, “Every vehicle that is self-propelled.” And so, what can we 

determine about this area at the intersection of [Chrestensen] Road and Milarch 

Road?

The area in question is, in fact, a place that the Defendant did reach with his 

vehicle. The standard that Rea gave was “usually capable of being reached.” We 

essentially have a road that falls off into a ditch area a little bit, then kind of levels 

out in, essentially, a field. And the Rea case, I think, really gave a rather broad 

conclusion or interpretation of the statute, “usually capable of being reached.” I 

don’t see anything particular about this location that makes it a situation other than 

usually capable of being reached.

So, based upon what the Supreme Court of Michigan is saying in People v 

Rea, the ditch area and field in close proximity to the intersection of [Chrestensen] 
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and Milarch Road, would, in this Court’s interpretation, be a place generally 

accessible to motor vehicles, and would be potentially a location where somebody 

could be operating a motor vehicle while intoxicated, potentially, depending on the 

facts in the case. So, that would be my ruling on the question of law as to whether 

this is a place generally accessible to motor vehicles.

Thus, the district court concluded that the area where defendant’s vehicle was located was 

generally accessible to motor vehicles because it was “usually capable of being reached.” The 

district court then entered an order consistent with its ruling from the bench.

Although the district court did not make exact factual findings concerning how close 

defendant’s vehicle was to the roadway when it came to rest in the field, we can infer from its onthe-record findings that the court accepted Sergeant Woroniak’s testimony. Specifically, the 

district court stated “[t]he area in question is, in fact, a place that the Defendant did reach with his 

vehicle . . . . We essentially have a road that falls off into a ditch area a little bit, then kind of 

levels out in, essentially, a field.” The district court also found that “the ditch area and field [were] 

in close proximity to the intersection of [Chrestensen] and Milarch Road[.]”

Applying the reasoning in Rea to this case, we conclude that the district court did not err 

by concluding that the field where defendant’s vehicle was found was generally accessible to motor 

vehicles. See MCL 257.625(1). Although it appears to be undisputed that there were some 

obstacles, such as bushes lining the uncultivated field, it is clear that defendant was nonetheless

able to access the field without extraordinary effort. Specifically, defendant testified that, after he 

slid on the snow into the brush on the edge of the travelled portion of Chrestensen Road, he backed 

his vehicle down an embankment and onto the flat area that became a field. Indeed, the 

photographs that were taken by defendant and admitted into evidence do not depict any objects 

that would prevent a vehicle from entering the field.13 Thus, there was nothing in the area that 

prevented defendant’s vehicle from entering the field. See e.g., Rea, 500 Mich at 435 (noting that 

there was “nothing on [the] defendant’s driveway that would prevent motor vehicles on the public 

street from turning into it”).

As noted by the district court, testimony at the hearing showed that the area where 

defendant’s vehicle came to rest was in close proximity to two public roadways. Defendant’s 

vehicle certainly had the ability to enter the area a short period of time after he was traveling on 

the roadway. Although defendant argues on appeal that his vehicle had to be extracted from the 

field with a tow truck, this does not change the fact that the area was “in a place that” was “capable 

of being reached by [a] self-propelled vehicle[].” Id. at 431. Indeed, it appears from defendant’s 

testimony that he was unable to extract his vehicle because of the snow, because of the incline 

between the field and the road, and because his rear tire became “stuck.” In sum, we conclude that 

 

13 Defendant agreed that the photographs were “a fair and accurate depiction of the final resting 

spot of the vehicle[.]” When asked if there were any differences between the photographs and 

how the scene appeared on December 25, 2018, defendant responded, “It was early in the season, 

the brush—the foliage hasn’t come up. So pretty much, the only difference that I recall, is there’s 

no snow.”
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the district court did not err by concluding that the area in which defendant’s vehicle was found 

was generally accessible to motor vehicles.

D. EVIDENCE OF DEFENDANT’S CONDUCT AND STATEMENTS

Finally, defendant argues that the district court improperly denied his motion to exclude 

any reference to his occupation at trial. We review “[p]reserved evidentiary rulings . . . for an 

abuse of discretion.” Unger, 278 Mich App at 216.

As already discussed, Sergeant Woroniak testified that defendant showed him “his badge”

“[a]nd inquired if anything could be done” while Sergeant Woroniak was in the process of 

completing his investigation. Thereafter, Sergeant Woroniak informed defendant about the PBT 

result. Defendant stated “that he was going to lose a quarter of his pay,” and, again asked Sergeant 

Woroniak “what could be done.” Defendant also engaged in similar conduct with the tow truck 

driver. Specifically, defendant allegedly displayed “a badge” and identified himself as a “court 

officer from down state.” 

During pretrial proceedings, defendant filed a motion in limine to preclude the prosecution

from introducing evidence that defendant “wanted to ‘get out of’ getting arrested by informing the 

law enforcement officers/others at the scene that he [wa]s a court officer or even a judge in the 

Wayne County area.” In his motion, defendant noted that evidence supported that he had displayed 

a “badge.” Defendant alleged that “[h]is occupation [wa]s not relevant” and that, even if the 

district court determined that it was marginally relevant, the evidence should be excluded under 

MRE 403. In response, the prosecution argued that defendant’s conduct was relevant and highly 

probative of his consciousness of guilt.

After hearing oral argument, the district court ruled:

Well, in looking at this matter, I think generally speaking, statements that 

Defendants make, or their actions at the time of a traffic stop, are generally 

information that can go to the jury. In this case, if there are statements and actions 

by Defendant to make persons on the scene aware of [his] general occupation or 

line of business to gain potentially some favor, is an argument that the Prosecutor 

could make, and there’s arguments that the Defendant could make as well. But I 

think the Prosecutor should be able to make an argument of a consciousness of 

guilt-type statement as to what people say or do when they’re in a position that 

looks like they could be in some trouble.

In terms of prejudicial, any comments against Defendant are prejudicial. I 

think the question is: Is it just so highly prejudicial, that—is it so highly prejudicial 

that it can’t be probative, that it can’t help the jury? There can be a limiting 

instruction, details of which could be worked out, but certainly along the lines that 

the Defendant’s occupation cannot be taken into account in deciding whether [he]

is guilty or not guilty, but I think any statements and conduct by the Defendant at 

the scene, is something that is relevant, I think it’s admissible, and either side can 

make whatever argument they believe is pertinent to it. So, I think it should be 

admitted.
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Thus, it appears that the district court held that defendant’s statements and actions at the 

scene—including displaying his badge—are admissible. Although the district court was somewhat 

vague in its ruling, clarification from the district court is not necessary. During oral argument 

before this Court, the prosecution indicated that it did not intend to introduce evidence that 

defendant was employed as a district court judge at the time of the offense. The prosecution also 

indicated that it was only seeking to introduce the conduct and statements that were directed toward 

Sergeant Woroniak. Consequently, we focus our analysis on whether defendant’s alleged request 

to Sergeant Woroniak of whether “something could be done” and that he presented a “badge” to 

Sergeant Woroniak is admissible under MRE 401, 402, and 403.

MRE 401 defines relevant evidence as evidence having “any tendency to make a fact more 

or less probable than it would be without the evidence.” MRE 402 also provides that “irrelevant 

evidence is not admissible.” Evidence that reflects a defendant’s consciousness of guilt is relevant. 

People v Schaw, 288 Mich App 231, 237; 791 NW2d 743 (2010). “Evidence of an attempt to 

avoid arrest . . . in a criminal case is relevant, material, admissible and can lead to an inference of 

guilt.” People v Biegajski, 122 Mich App 215, 220; 332 NW2d 413 (1982). A “defendant’s 

demeanor, nonresponsive conduct, and statement” may be properly admitted to evidence 

consciousness of guilt. People v Solmonson, 261 Mich App 657, 667; 683 NW2d 761 (2004). It 

is ultimately for the jury to determine whether a defendant’s conduct was indicative of 

consciousness of guilt. People v Sholl, 453 Mich 730, 740; 556 NW2d 851 (1996).

We conclude that, contrary to defendant’s assertions, his statements and actions are 

relevant to proving his consciousness of guilt. In this case, a jury could infer from defendant’s

conduct that defendant knew he was unlawfully operating a vehicle while under the influence. 

Defendant’s conduct and statements could also support an argument that he was attempting to 

curry favor with law enforcement and influence the investigation’s outcome to avoid arrest. 

Therefore, we conclude that defendant’s conduct of displaying his badge and his statement whether 

“something could be done” are relevant.

Defendant’s prearrest statement and conduct are also admissible under MRE 403. MRE 

403 provides that “evidence may be excluded if its probative value is substantially outweighed by 

the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations 

of undue delay, waste of time, or needless presentation of cumulative evidence.” However, 

evidence is not “unfairly prejudicial” simply because it is damaging to a defendant’s case. Rather, 

“unfair prejudice” “refers to the tendency of the proposed evidence to adversely affect the 

objecting party’s position by injecting considerations extraneous to the merits of the lawsuit, e.g., 

the jury’s bias, sympathy, anger, or shock.” People v Cameron, 291 Mich App 599, 611; 806 

NW2d 371 (2011) (quotation marks and citation omitted). “Evidence is unfairly prejudicial 

when . . . [the danger exists] that marginally probative evidence will be given undue or preemptive 

weight by the jury.” Id. (quotation marks and citation omitted; first alteration omitted; second 

alteration in original). “In this context, prejudice means more than simply damage to the 

opponent’s cause. A party’s case is always damaged by evidence that the facts are contrary to his 

contentions, but that cannot be grounds for exclusion.” Schaw, 288 Mich App at 237.

We conclude that defendant’s alleged statement and conduct of displaying his badge are

admissible under MRE 403. Although this evidence could potentially prejudice defendant, MRE 

403 only excludes relevant evidence “if its probative value is substantially outweighed by the 
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danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of 

undue delay, waste of time, or needless presentation of cumulative evidence.” In this case, the 

probative value of defendant’s alleged statement and display of his badge is not substantially 

outweighed by unfair prejudice because it is highly probative in that it reflects his consciousness 

of guilt. See Schaw, 288 Mich App at 237-238. Additionally, the district court stated that it would 

provide a limiting instruction, informing the jury that it could not use evidence of defendant’s 

position as a court officer to determine whether he was guilty. Because “[i]t is well established 

that jurors are presumed to follow their instructions,” People v Graves, 458 Mich 476, 486; 581 

NW2d 229 (1998), this is sufficient to minimize any prejudice and protect defendant’s right to a 

fair trial. Thus, trial court did not abuse its discretion.

Affirmed.

/s/ Thomas C. Cameron 

/s/ Mark T. Boonstra 

/s/ Anica Letica