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State v. Hayes

Court of Appeals of North Carolina

November 21, 2017


          Heard in the Court of Appeals 23 August 2017.

         Appeal by defendant from judgment entered 8 June 2016 by Judge J. Thomas Davis in Buncombe County No. 14 CRS 82629 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General June S. Ferrell, for the State.

          Jarvis John Edgerton, IV, for defendant.

          ELMORE, Judge.

         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.

         In 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).

         The 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.

         I. Background

         On 23 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.

         At 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 officer approached.

         When he 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.

         Officer 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.

         At 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 ...

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