Question as originally presented: I have been getting police reports with multiple BAC levels for an incident which go into multiple scoring levels; for example, a defendant blew 0.158 on a PBT and the blood draw was 0.12, which means either 15 or 10 points would be scored depending on which test you decide to use. Another example is the Datamaster test where the same thing occurs, the first test is 0.14 and the second test is 0.15, resulting in the same problem. Is there any caselaw or clear direction on which result to score in these situations?
No case law or other legal authority addresses how to choose between competing test results when scoring OV 18, and OV 18 itself contains no statutory language addressing or acknowledging a situation where there are multiple and conflicting test results. This is an issue that the judge will have to decide in each case. The specific facts of the case might support a choice of one test over another; for example, how much time passed between the different tests, the strength of the defendant’s breath into the machine, or if a Datamaster was used, whether the Michigan State Police gave any notice that there could be an error with that result. Ultimately, the judge will have to decide which test is more accurate and reliable and score OV 18 using those results. When scoring any OV, the trial court is required to find its score by a preponderance of the evidence, and a trial court’s factual determinations are reviewed for clear error. People v Hardy, 494 Mich 430, 438, 438 n 18 (2013). It is possible that more than one test result could survive review under this standard and it will come down to a judgment call by the trial court.