in the Court of Appeals 24 January 2017.
by defendant from judgments entered 26 February 2016 by Judge
Jay D. Hockenbury in New Hanover County, Nos. 14 CRS 6705,
53596-97 Superior Court.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Hal F. Askins, for the State.
L. Smith for defendant.
Lori Lee Babich appeals her conviction for habitual impaired
driving, challenging the admission of retrograde
extrapolation testimony by the State's expert witness.
That expert used Babich's 0.07 blood alcohol
concentration one hour and forty-five minutes after the
traffic stop to extrapolate that Babich had a blood alcohol
concentration of 0.08 to 0.10 at the time of the stop. To
reach this conclusion, the expert assumed that Babich was in
a post-absorptive state at the time of the stop, meaning that
alcohol was no longer entering Babich's bloodstream and
thus her blood alcohol level was declining. The expert
conceded that there were no facts to support this assumption.
The expert made this assumption not because it was based on
any facts in the case, but because her retrograde
extrapolation calculations could not be done unless Babich
was in a post-absorptive state.
explained below, we hold that the expert's testimony was
inadmissible under the Daubert standard that applies
to Rule 702 of the Rules of Evidence. Although retrograde
extrapolation testimony often will satisfy the
Daubert test, in this case the testimony failed
Daubert's "fit" test because the
expert's otherwise reliable analysis was not properly
tied to the facts of this particular case.
we conclude that this expert testimony was inadmissible under
Daubert, we nevertheless uphold Babich's
conviction. As explained below, in light of the strength of
the State's evidence that Babich was appreciably
impaired, there is no reasonable possibility that exclusion
of the expert's testimony would have affected the outcome
of this case. Accordingly, we find no prejudicial error in
Babich's conviction and sentence.
and Procedural History
May 2014 at approximately 3:20 a.m., Officer Britton Creech
of the Wilmington Police Department saw Defendant Lori Lee
Babich driving her vehicle at a high speed in a 45
mile-per-hour zone. After an initial radar reading of 83
miles per hour, Officer Creech began pursuing Babich. While
following her, Officer Creech registered a second radar
reading of 91 miles per hour. Officer Creech then observed
Babich brake before an intersection with a red light, slow
down to approximately 45 miles per hour, and then cross the
intersection despite the red light. Officer Creech pulled
immediately exited her vehicle and approached the officer.
Officer Creech commanded Babich to stop and stay in her
vehicle, but Babich did not comply, causing the officer to
grab her and place her in handcuffs. The officer smelled
alcohol on Babich's breath, Babich stumbled as she
walked, and her eyes were glazed and red. Officer Creech
removed the handcuffs and asked Babich to perform several
field sobriety tests.
one-leg-stand test, Babich placed her foot on the ground two
times and raised her arms for balance contrary to
instructions. On the walk-and-turn test, Babich started over
in the middle of the test and on three steps did not walk in
a heel-to-toe manner as instructed. Finally, on the
finger-to-nose test, Babich touched her face instead of her
nose. Based on his observations and Babich's
unsatisfactory performance on the sobriety tests, Officer
Creech arrested Babich for driving while impaired.
police station, Officer Dwayne Ouellette, a certified
chemical analyst, used an intoximeter breath testing
instrument to administer a breath alcohol test to Babich.
Officer Ouellette collected breath samples from Babich at
5:07 a.m. and 5:09 a.m. which both reported a breath alcohol
concentration of 0.07. Babich had been stopped by Officer
Creech at 3:26 a.m. and remained in his custody and under his
observation until Officer Ouellette performed the breath
test. During the time she was in custody, Babich did not
consume any alcohol or have any opportunity to consume any
State charged Babich with reckless driving to endanger,
driving while license revoked, speeding, driving while
impaired, and habitual impaired driving. At trial, Bethany
Pridgen, a forensic chemist with the Wilmington Crime Lab,
testified as an expert witness for the State regarding
retrograde extrapolation. Pridgen testified that she
performed a retrograde extrapolation to estimate Babich's
blood alcohol concentration at the time she was stopped.
Based on her calculation, Pridgen gave a conservative
estimate that Babich's blood alcohol concentration was
between 0.08 and 0.10 at the time of the stop.
jury convicted Babich of impaired driving, speeding, and
reckless driving. Babich stipulated to three prior DWI
convictions, constituting habitual status, and was sentenced
to 19 to 32 months in prison. Babich timely appealed.
I. Admissibility of the Retrograde Extrapolation
contends that the retrograde extrapolation testimony of the
State's expert witness was inadmissible under Rule
702(a)(1) because it was not based on sufficient facts or
data. As explained below, although retrograde extrapolation
testimony can be scientifically reliable, we hold here that
the opinion of the State's expert was not sufficiently
tied to the particular facts of this case and thus fails the
Daubert "fit" test.
review a trial court's admission of expert testimony for
abuse of discretion. State v. Anderson, 322 N.C. 22,
28, 366 S.E.2d 459, 463 (1988). Our Supreme Court recently
confirmed that Rule 702(a) of the Rules of Evidence
"incorporates the standard from the Daubert
line of cases" in federal evidentiary jurisprudence.
State v. McGrady, 368 N.C. 880, 888, 787 S.E.2d 1, 8
(2016). To be admissible under Rule 702(a), expert testimony
"must meet the three-pronged reliability test that is
new to the amended rule: (1) The testimony must be based upon
sufficient facts or data. (2) The testimony must be the
product of reliable ...