in the Court of Appeals 23 August 2017.
by defendant from judgment entered 8 June 2016 by Judge J.
Thomas Davis in Buncombe County No. 14 CRS 82629 Superior
Attorney General Joshua H. Stein, by Special Deputy Attorney
General June S. Ferrell, for the State.
John Edgerton, IV, for defendant.
Michael Lynn Hayes appeals his conviction for habitual
impaired driving, challenging the admission of retrograde
extrapolation testimony by the State's expert witness.
That expert used defendant's 0.06 blood alcohol
concentration (BAC) one hour and thirty-five minutes after
the traffic stop to determine that defendant had a BAC of
0.08 at the time of the stop. To reach this conclusion, the
expert assumed defendant was in a post-absorptive state at
the time of the stop, meaning that alcohol was in the process
of being eliminated from his bloodstream and his BAC was in
decline. The expert admitted that while there were no facts
to support this assumption, he made it regardless because his
retrograde extrapolation analysis could not be done unless
defendant was in a post-absorptive state.
accordance with State v. Babich, __ N.C.App. __, 797
S.E.2d 359 (2017), 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." Id.
at, 797 S.E.2d at 360; see Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993) (holding that "helpfulness"
standard for admissibility of scientific testimony under Rule
702 of Federal Rules of Evidence requires a valid scientific
connection to the pertinent inquiry as a precondition to
admissibility); see also State v. McGrady, 368 N.C.
880, 787 S.E.2d 1 (2016) (holding that Daubert
standard applies to admissibility determination of expert
testimony under amended North Carolina evidentiary rule).
State concedes error under Babich; thus, the only
issue remaining on appeal is whether the erroneously-admitted
testimony prejudiced defendant. Because defendant has met his
burden of showing a reasonable possibility that a different
result would have been reached had the expert's testimony
been excluded, we find prejudicial error in defendant's
conviction. Accordingly, we reverse the trial court's
judgment and remand for a new trial.
April 2014, Officer Adam Cabe of the Asheville Police
Department conducted a traffic stop leading to
defendant's arrest. Defendant was indicted on 7 June 2014
for habitual impaired driving in violation of N.C. Gen. Stat.
§ 20-138.5. The case came to trial on 6 June 2016, and
Officer Cabe testified for the State regarding his
interactions with defendant on the evening of the stop.
approximately 12:43 a.m., Officer Cabe was conducting
stationary radar speed enforcement when he measured defendant
driving 50 miles per hour in a 35 mile-per-hour zone. The
officer followed defendant and initiated a traffic stop based
on this observation of speeding. Defendant stopped his
vehicle at a gas station, partially in a parking space and
partially blocking a gas pump. Officer Cabe exited his patrol
car and approached defendant's vehicle, noting that
defendant appeared to place chewing gum in his mouth as the
reached the vehicle, Officer Cabe observed that defendant had
glassy eyes, and he asked for defendant's driver's
license. Defendant told Officer Cabe he did not have a
driver's license and instead produced a North Carolina
identification card, which Officer Cabe noticed defendant had
difficulty retrieving from his wallet. During this initial
interaction, defendant told the officer he was on his way
home from working late and had just picked up his children,
all four of whom were passengers in defendant's vehicle.
Defendant also told the officer that defendant's oldest
son and front-seat passenger was supposed to be driving at
the time, but the young man did not know the way home from
that particular area.
Cabe returned to his patrol car to run a record check on
defendant, which revealed outstanding warrants for driving
while license revoked and failure to pay child support.
Officer Cabe then placed defendant under arrest based on
these warrants. Defendant requested to use the gas
station's bathroom prior to being transported to the
detention center, but Officer Cabe denied his request;
defendant was allowed to use the bathroom upon arrival at the
center. As Officer Cabe handcuffed and began to search
defendant, he detected a moderate odor of alcohol on
defendant's breath. However, the officer did not ask
defendant if he had been drinking and, if so, when; he did
not ask defendant to perform a field sobriety test at the
time of arrest; and he did not arrest defendant on suspicion
of impaired driving.
trial, Officer Cabe testified that he believed defendant was
appreciably impaired based on observations of speeding,
chewing gum, glassy eyes, a moderate odor of alcohol,
bathroom use, and defendant's subsequent refusal to
perform a series of field sobriety tests once at the
detention center. Defendant also refused to provide a breath
sample, leading Officer Cabe to secure a search warrant in
order to draw blood from defendant. The test results of that
blood draw indicated that defendant's BAC one hour and
thirty-five minutes after the traffic stop was 0.06 grams of
alcohol per 100 milliliters of blood. At no time did Officer