Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Babich

Court of Appeals of North Carolina

March 7, 2017


          Heard in the Court of Appeals 24 January 2017.

         Appeal 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.

          Sharon L. Smith for defendant.

          DIETZ, Judge.

         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.

         As 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.

         Although 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.

         Facts and Procedural History

         On 16 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 Babich over.

         Babich 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.

         On the 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.

         At the 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 alcohol.

         The 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.

         The 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.

         Analysis I. Admissibility of the Retrograde Extrapolation Testimony

         Babich 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.

         We 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.