{ "id": 11220395, "name": "STATE OF NORTH CAROLINA v. LYNETTE MAC CARDWELL", "name_abbreviation": "State v. Cardwell", "decision_date": "1999-06-15", "docket_number": "No. COA98-997", "first_page": "496", "last_page": "509", "citations": [ { "type": "official", "cite": "133 N.C. App. 496" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "130 L. Ed. 2d 429", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "513 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1330529, 1332356, 1330884, 1335114, 1332012, 1330701, 1332079, 1330544, 1333073, 1335603, 1332603, 1334483, 1332790, 1332535, 1332666, 1335835 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/513/1006-07", "/us/513/1006-08", "/us/513/1006-05", "/us/513/1006-06", "/us/513/1006-01", "/us/513/1006-15", "/us/513/1006-02", "/us/513/1006-10", "/us/513/1006-11", "/us/513/1006-13", "/us/513/1006-16", "/us/513/1006-14", "/us/513/1006-12", "/us/513/1006-09", "/us/513/1006-03", "/us/513/1006-04" ] }, { "cite": "444 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "901" } ], "opinion_index": 0 }, { "cite": "336 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537586 ], "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0321-01" ] }, { "cite": "245 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "682", "parenthetical": "\"Where a defendant has neither testified as a witness nor introduced evidence of his good character, the State may not present evidence of his bad character . . . .\"" } ], "opinion_index": 0 }, { "cite": "295 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563177 ], "year": 1978, "pin_cites": [ { "page": "373", "parenthetical": "\"Where a defendant has neither testified as a witness nor introduced evidence of his good character, the State may not present evidence of his bad character . . . .\"" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0361-01" ] }, { "cite": "414 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "771", "parenthetical": "quoting N.C.G.S. \u00a7 8C-1, Rule 403, official commentary" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 692", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525019 ], "year": 1992, "pin_cites": [ { "page": "695", "parenthetical": "quoting N.C.G.S. \u00a7 8C-1, Rule 403, official commentary" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0692-01" ] }, { "cite": "411 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "607", "parenthetical": "noting that N.C.G.S. \u00a7 20-139.1(a), which provides for one method of blood-alcohol content analysis, allows for the admission of other competent evidence, including other chemical tests, to show a defendant's blood-alcohol level" } ], "opinion_index": 0 }, { "cite": "330 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509096 ], "year": 1992, "pin_cites": [ { "page": "592", "parenthetical": "noting that N.C.G.S. \u00a7 20-139.1(a), which provides for one method of blood-alcohol content analysis, allows for the admission of other competent evidence, including other chemical tests, to show a defendant's blood-alcohol level" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0587-01" ] }, { "cite": "139 L. Ed. 2d 614", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "488 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "542" }, { "page": "542" } ], "opinion_index": 0 }, { "cite": "346 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139622 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "506-07" }, { "page": "506-07" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0497-01" ] }, { "cite": "67 U.S.L.W. 4179", "category": "reporters:specialty", "reporter": "U.S.L.W.", "year": 1999, "pin_cites": [ { "parenthetical": "noting that federal rule 702, which is, in relevant part, identical to our Rule 702, vests \"discretionary authority, reviewable for its abuse,\" in the trial court" } ], "opinion_index": 0 }, { "cite": "462 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793218, 793062, 793140, 793146, 793148 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0655-04", "/nc/341/0655-05", "/nc/341/0655-02", "/nc/341/0655-01", "/nc/341/0655-03" ] }, { "cite": "459 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 662", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916995 ], "year": 1995, "pin_cites": [ { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0662-01" ] }, { "cite": "509 U.S. 579", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 355769 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "593-94", "parenthetical": "noting that some of the \"[m]any\" possible factors for consideration include empirical testing of the new scientific technique, peer review and publication, the known or potential rate of error, and general acceptance by the scientific community" }, { "page": "482-83", "parenthetical": "noting that some of the \"[m]any\" possible factors for consideration include empirical testing of the new scientific technique, peer review and publication, the known or potential rate of error, and general acceptance by the scientific community" } ], "opinion_index": 0, "case_paths": [ "/us/509/0579-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "381" }, { "page": "379" }, { "page": "382" } ], "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "148" }, { "page": "145" }, { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "393 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1990, "pin_cites": [ { "page": "852" }, { "page": "852" }, { "page": "853" }, { "page": "854", "parenthetical": "\"The evidence [obtained from a reliable scientific method of proof] may be found to be so tainted that it is totally unreliable and, therefore, must be excluded.\"" }, { "page": "854" } ], "opinion_index": 0 }, { "cite": "327 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498438 ], "weight": 5, "year": 1990, "pin_cites": [ { "page": "98" }, { "page": "98" }, { "page": "98" }, { "page": "101" }, { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0089-01" ] } ], "analysis": { "cardinality": 1138, "char_count": 32812, "ocr_confidence": 0.775, "pagerank": { "raw": 1.4952424860306867e-07, "percentile": 0.6637722894269126 }, "sha256": "fef5bb1acb87e833aadfb5235ab7c3cf653d83cc054ad108c58dd2c36504f88b", "simhash": "1:da2f82ae771ecd35", "word_count": 5156 }, "last_updated": "2023-07-14T19:41:36.377256+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and McGEE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LYNETTE MAC CARDWELL" ], "opinions": [ { "text": "GREENE, Judge.\nLynette Mac Cardwell (Defendant) appeals from her driving while impaired and reckless driving convictions.\nOn 26 April 1997 at approximately 7:00 p.m., Defendant was involved in a two-vehicle collision. Following the collision, Defendant was taken to Moses Cone Memorial Hospital (Moses Cone) in Greensboro, North Carolina, for treatment. Defendant\u2019s treating physician at Moses Cone ordered testing of Defendant\u2019s blood for its alcohol concentration. Defendant\u2019s test results were subsequently made available to the State by the trial court upon a determination that it was necessary to the proper administration of justice. On 18 December 1997, Defendant moved to suppress the results of her alcohol testing on the grounds that both the DuPont ACA Star Analyzer (Analyzer) utilized by Moses Cone to determine Defendant\u2019s plasma-alcohol concentration and the ratio used to convert her plasma-alcohol concentration to the equivalent blood-alcohol concentration are unreliable.\nAt the hearing on Defendant\u2019s motion, testimony was presented as to the chain of custody of Defendant\u2019s blood samples. Bryan Dellinger (Dellinger), the Moses Cone medical technologist who tested Defendant\u2019s blood samples, testified as to his training and as to the proper operation of the Analyzer. Dellinger further testified that he removed Defendant\u2019s plasma from her whole blood in a centrifuge, and then tested her plasma in the Analyzer to determine its alcohol content. Defendant\u2019s plasma-alcohol concentration, according to the Analyzer, was 127 milligrams per deciliter.\nRobert Milton Gay, M.D. (Dr. Gay), chief of pathology and clinical laboratory services at Moses Cone, testified during the hearing that he was familiar with the Analyzer, and that it has been in use at Moses Cone for \u201cprobably 20 years.\u201d Dr. Gay testified that the Analyzer is reliable, and that \u201c[a] lot of hospitals use it for specific things. I would think that it would be relatively common in tertiary care medicine.\u201d Dr. Gay further testified that a combination of elevated lactic dehy-drogenase (LDH) levels and other factors could cause a false high alcohol reading on the Analyzer. Dr. Gay testified he was convinced, from a review of Defendant\u2019s medical records, that although Defendant had elevated LDH levels due to liver damage caused by the accident, no other factors were present which, combined with Defendant\u2019s elevated LDH levels, could cause a false reading. \u201cAs I mentioned, another factor is required for [a false reading] to happen, and that\u2019s an increase in lactate or lactic acid, and while there is no direct measurement of lactic acid here, there is evidence that [Defendant\u2019s] lactic acid was not increased.\u201d Dr. Gay summed up his testimony by stating that, in his opinion, nothing in Defendant\u2019s medical record caused him to doubt the accuracy of the Analyzer\u2019s results in this case. On cross-examination, Dr. Gay stated unequivocally that transfusions of saline, which had been administered to Defendant prior to the withdrawal of her blood samples, would not have affected the Analyzer\u2019s results.\nRichard W. Waggoner, Jr., Ph.D. (Dr. Waggoner), a forensic chemist with the North Carolina State Bureau of Investigation (SBI), was permitted to testify as an expert in forensic chemistry. Dr. Waggoner explained that testing plasma for alcohol concentration results in higher readings than the testing of whole blood for alcohol concentration, and, accordingly, plasma-alcohol content must be converted to its equivalent blood-alcohol content to ascertain whether the alcohol concentration of an individual\u2019s blood is over the legal limit of 0.08. Dr. Waggoner testified that the SBI uses a ratio of 1 to 1.18 to convert the alcohol concentration of plasma into \u201cwhole blood results,\u201d and has used this ratio for over ten years. Dr. Waggoner stated that a 1 to 1.18 ratio is considered scientifically reliable by other experts in the field of forensics. Approximately 90 percent of the published studies in journals and texts report accurate conversion ratios ranging from 1 to 1.15 through 1 to 1.21, although Dr. Waggoner was aware of one study which found one individual to have a conversion ratio of 1 to 1.59, and of one study which found one individual to have a conversion ratio of 1 to 1.35. Dr. Waggoner believed these figures to be unreliable \u201coutliers\u201d based on his review of numerous studies, encompassing a total of approximately one thousand individuals. Using the SBI\u2019s conversion ratio of 1 to 1.18 to convert Defendant\u2019s plasma-alcohol concentration of 127 milligrams per deciliter, Dr. Waggoner testified that Defendant\u2019s blood-alcohol concentration would be equivalent to 0.107. Using a conversion ratio of 1 to 1.21, the highest ratio Dr. Waggoner considered to be reliable, Defendant\u2019s blood-alcohol concentration would be equivalent to 0.105. Even using a conversion ratio of 1 to 1.35, a ratio Dr. Waggoner considered unreliable, Defendant\u2019s blood-alcohol concentration would be equivalent to 0.094.\nJames Woodford, Ph.D. (Dr. Woodford), a chemist, testified for Defendant as an expert in \u201cmedicinal and forensic chemistry.\u201d In Dr. Woodford\u2019s opinion, the Analyzer is not a reliable method of determining blood-alcohol concentration. Dr. Woodford testified that, in his experience with drug-testing for federal employment, alcohol concentration results obtained from enzyme tests such as the Analyzer may not serve as the basis for hiring or firing decisions unless the results are verified by gas chromatography testing. Dr. Woodford also believed the Analyzer to be unreliable because it tests for a reaction which can be caused by alcohol, but which can also be caused by other factors, including enzymes. Dr. Woodford opined that the damage to Defendant\u2019s liver could have released enzymes which would affect the Analyzer\u2019s reading. In addition, Dr. Woodford believed the Analyzer\u2019s results were unreliable in this case because Defendant had been given at least two units of saline solution, which is mostly water, prior to having her blood taken. Dr. Woodford testified that alcohol is attracted to water, and the water in the saline solution would have absorbed alcohol stored in Defendant\u2019s muscle tissue, resulting in higher levels of alcohol in Defendant\u2019s bloodstream. Dr. Woodford disputed the 1 to 1.18 conversion ratio utilized by the SBI, stressing that most published studies setting a ratio to convert plasma-alcohol content to blood-alcohol content apparently test healthy individuals (although he conceded that at least one of the relied-upon studies tested blood received from emergency room patients). Accordingly, Dr. Woodford felt that the conversion ratio of individuals in the studies could not accurately be applied to individuals, like Defendant, suffering from trauma.\nFollowing the presentation of testimony, the trial court heard arguments from Defendant and from the State, noting that \u201c[t]he State has the burden\u201d of showing that the Analyzer is a reliable mechanism for testing alcohol concentration and that 1 to 1.18 is a reliable conversion ratio. The trial court subsequently made the following pertinent findings of fact as to the reliability of the Analyzer and the 1 to 1.18 conversion ratio:\n6.... The [Analyzer] is of very good reliability. Similar instruments have been in use for over 20 years. This model is in common use in tertiary care hospitals throughout the United States [and] . . . has gained general acceptance among metropolitian [sic] hospitals in North Carolina and hospitals throughout the United States. The principles underlying this instrument are scientifically valid. It is a reliable scientific instrument. . . .\n12. ... It is generally recognized and accepted that an alcohol reading in plasma is higher than an alcohol reading in whole blood, so the reading must be converted to whole blood alcohol level for court purposes. The ratio used by the SBI is a conservative ratio. The ratio is 1 to 1.18. It has been used for at least 11 years by the North Carolina State Bureau of Investigation forensic laboratory. The ratio chosen by the SBI laboratory is a conservative ratio, at the mid-point in values in the recognized scientific and technical literature. This ratio is based on the published findings. . . . The 1 to 1.18 ratio is a reliable ratio. The 1 to 1.18 ratio is generally accepted in the field of forensic chemistry. The 1 to 1.18 ratio is considered sufficiently reliable by other experts in the field of forensic chemistry. The ratio is an established and respected ratio in the forensic community [and] is scientifically valid.... A plasma alcohol concentration here of 127 milligrams per deciliter, when the 1 to 1.18 ratio is used, gives a whole blood alcohol concentration reading of .10[7] per one hundred milliliters of blood. . . . Using 1 to 1.35, the result would be .094. Dr. Waggoner\u2019s education and experience well fit him for explaining the conversion factor and the result to the trial jury.\nConsidering factors specific to Defendant which could have affected the reliability of her Analyzer results, the trial court found:\n7. ... An elevated LDH reading standing by itself, as a single factor, would not result in a false high reading. Other body chemistry readings did not indicate that elevated LDH would give a false positive reading. . . . [T]here was no credible evidence that elevated LDH skewed the result of the plasma alcohol test. . . .\n8. . . . Here there were body chemistry readings which indicate that lactic acid was not increased (high)... .\n9. . . . [T]he State\u2019s medical expert, Pathologist Dr. Gay, was aware that the [Defendant received two units of saline solution. This fact did not cause him to be suspicious of the test result. The Court does not find it persuasive that the [Defendant's plasma alcohol concentration would be increased because the [Defendant was given saline solution before blood was drawn.\nFinally, balancing the probative value of Defendant\u2019s Analyzer test results against the prejudicial effect of this evidence, the trial court found:\n15. Engaging in the balancing involved under Rule 403 of the North Carolina Evidence Code, the Court determines that the probative value of the figure arrived at by converting plasma blood alcohol to whole blood alcohol concentration is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or any other matter of concern under Rule 403.\nBased on these findings, the trial court denied Defendant\u2019s motion to suppress the Analyzer test results.\nAt trial, the three individuals who had witnessed the accident testified for the State. Jessica Elizabeth Sola (Sola) testified that Defendant\u2019s vehicle \u201ccrosse [d] in my lane traveling in the other lane, and as I was slowing down I started to pull off the side of the road and she come over into my lane and hit me.\u201d Brenda Brown (Brown) and her son, Joshua Horn (Horn), were a few car-lengths ahead of Sola\u2019s vehicle in the same lane of travel. Brown testified:\n[Defendant\u2019s vehicle] run off on the curve, and when it came back on [the road] it came over into our lane of traffic and kind of like zig-zagged back and forth after that, and I told my son [who was driving Brown\u2019s vehicle] to pull the car over. I said, \u201cI think she is going to wreck.\u201d And then I said, \u201cShe may hit us,\u201d and we pulled over.\nBrown watched as Defendant\u2019s vehicle crossed into Sola\u2019s lane of travel and hit Sola\u2019s vehicle. Horn testified:\n[Defendant\u2019s vehicle] had come around the curve and I noticed it hit the \u2014 it went off the road toward the right-hand side and threw up a cloud of dust. . . then the car was out of control, and as it come closer to us it zig-zagged like in and out. It come in our lane of travel and went back in its lane past us. Once it passed us, it zig-zagged back into Ms. Sola\u2019s lane and then they collided.\nHorn went to Defendant\u2019s vehicle to check on her, and smelled an odor of alcohol about Defendant\u2019s person.\nAfter the accident occurred, Benjamin Franklin Archer, IV (Archer), an emergency medical technician, arrived at the scene. He climbed into the back seat of Defendant\u2019s vehicle to attempt to stabilize Defendant\u2019s head and neck. Archer testified that he smelled a moderate odor of alcohol coming from Defendant\u2019s breath.\nWhen Defendant arrived at Moses Cone following the accident, Jamie Blue (Blue), an emergency room staff nurse, Joseph Perez (Perez), a registered nurse, and DeAudra Belizone, a clinical laboratory technician, were in Defendant\u2019s presence for an extended period while performing their duties. Each testified that they detected an odor of alcohol coming from Defendant\u2019s breath. In addition, Blue and Perez testified that Defendant stated she \u201chad been drinking at the lake.\u201d\nTrooper Mike Murphy (Trooper Murphy) of the North Carolina Highway Patrol also spoke with Defendant that evening at Moses Cone, and noticed \u201ca moderate odor of alcohol\u201d coming from Defendant\u2019s breath. Trooper Murphy testified that when he returned to Moses Cone two days later, \u201c[Defendant] just made a voluntary statement to me that she didn\u2019t feel like she was impaired, that she had drank some Schnapps at Dr. Mitch Bloom\u2019s residence at Belews Creek; however, it wasn\u2019t that much.\u201d Trooper Murphy was then allowed to testify, over Defendant\u2019s objection, that he had subsequently heard Defendant state she \u201chad drank nothing\u201d prior to the wreck.\nAfter Dellinger and Dr. Waggoner offered substantially the same testimony as they had offered during the pretrial hearing on Defendant\u2019s motion to suppress, the State rested its case-in-chief.\nDefendant did not testify in her own behalf. Four friends and/or acquaintances of Defendant each testified that they had engaged in brief conversations with Defendant around 5:00 p.m.; none noticed an odor of alcohol. Carolyn Cardwell (Cardwell), Defendant\u2019s mother, testified that she and Defendant spoke briefly \u201cnear seven o\u2019clock\u201d before Defendant left to attend a banquet. Cardwell noticed no odor of alcohol on Defendant\u2019s breath. Amy Baitz (Baitz), one of the first passers-by following the accident, applied a towel to the laceration on Defendant\u2019s forehead until medical personnel arrived, and noticed no odor of alcohol. Jodie Allen Shelton (Shelton) rode at Defendant\u2019s feet in the ambulance to Moses Cone and did not smell any odor of alcohol about Defendant. Cuff Watson Hopper (Hopper), a county rescue squad volunteer and friend of Defendant, also rode with Defendant in the ambulance. Hopper testified that he did not notice any odor of alcohol. After Dr. Woodford offered substantially the same testimony as he had offered during the pretrial hearing on Defendant\u2019s motion to suppress, the defense rested.\nOn rebuttal, Ronald C. Hill, Jr. (Hill), a paramedic, testified for the State. Due to his sinus condition, Hill could not smell anything on 26 April 1997. While riding in the ambulance with Defendant on the way to Moses Cone, Hill asked Hopper if he smelled any odor of alcohol about Defendant\u2019s person, and Hopper nodded affirmatively. Phil Mizelle (Mizelle), also a paramedic, saw Hopper the day after the accident. Mizelle was allowed to testify, solely for the purpose of impeaching Hopper, that Hopper told him alcohol had been involved in the wreck and Defendant had been drinking. Dr. Gay also testified on rebuttal, offering substantially the same testimony as he had offered during the pretrial hearing on Defendant\u2019s motion to suppress.\nAfter closing arguments, the trial court instructed the jury that it could find Defendant guilty of driving while impaired if it found beyond a reasonable doubt that she was driving a vehicle on a highway in this State and \u201cthat at the time the [Defendant was driving that vehicle she either (a) was under the influence of an impairing substance ... [or (b)] had an alcohol concentration of .08 or more grams of alcohol per 100 milliliters of blood.\u201d The jury returned verdicts of guilty of driving while impaired and reckless driving. For the driving while impaired conviction, the trial court sentenced Defendant to a twelve-month suspended sentence. Defendant was placed on supervised probation for one year and unsupervised probation for four years, and was required to serve an active sentence of sixty days as a condition of her probation. For the reckless driving conviction, the trial court entered an additional thirty-day suspended sentence. For that conviction, Defendant was placed on supervised probation for twelve months and unsupervised probation for forty-eight months.\nThe issues are whether: (I) the Analyzer constituted reliable scientific evidence in this case; (II) the State improperly elicited testimony as to Defendant\u2019s character for truthfulness; and (III) the trial court failed to make sufficient findings at Defendant\u2019s sentencing.\nI\nExpert testimony based on a scientific method of proof is generally admissible if the expert\u2019s \u201cscientific, technical or other specialized knowledge will assist the trier of fact.\u201d N.C.G.S. \u00a7 8C-1, Rule 702(a) (Supp. 1998). In determining whether a scientific method of proof will assist the trier of fact in a given case, the trial court must determine whether the method is reliable. State v. Pennington, 327 N.C. 89, 98, 393 S.E.2d 847, 852 (1990). The trial court may take judicial notice that a scientific method of proof is reliable; however, in cases where the scientific method of proof at issue is a relatively new one, reliability \u201cis usually established by expert testimony.\u201d Id. \u2014, State v. Bullard, 312 N.C. 129, 148, 322 S.E.2d 370, 381 (1984); 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 113 (5th ed. 1998) [hereinafter Brandis & Broun on Evidence]. The general acceptance of a particular method by the scientific community may be one indicator of its reliability; however, a lack of general acceptance is not dispositive. Pennington, 327 N.C. at 98, 393 S.E.2d at 852; Bullard, 312 N.C. at 145, 322 S.E.2d at 379. Other factors the trial court may consider in determining the reliability of an expert\u2019s scientific method of proof include: (1) the expert\u2019s professional background; (2) independent research conducted by the expert; (3) the use of established techniques; and (4) explanatory testimony (including, for example, the \u201cuse of visual aids before the jury so that the jury is not asked \u2018to sacrifice its independence by accepting [the] scientific hypotheses on faith\u2019 \u201d). Pennington, 327 N.C. at 98, 393 S.E.2d at 853 (quoting Bullard, 312 N.C. at 151, 322 S.E.2d at 382); cf. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94, 125 L. Ed. 2d 469, 482-83 (1993) (noting that some of the \u201c[m]any\u201d possible factors for consideration include empirical testing of the new scientific technique, peer review and publication, the known or potential rate of error, and general acceptance by the scientific community). We review the trial court\u2019s reliability determination under an abuse of discretion standard. State v. Spencer, 119 N.C. App. 662, 664, 459 S.E.2d 812, 814, disc. review denied, 341 N.C. 655, 462 S.E.2d 524 (1995); cf. Kumho Tire Co., Ltd. v. Carmichael, \u2014 U.S. \u2014, \u2014 L. Ed. 2d \u2014, 67 U.S.L.W. 4179 (1999) (noting that federal rule 702, which is, in relevant part, identical to our Rule 702, vests \u201cdiscretionary authority, reviewable for its abuse,\u201d in the trial court). Accordingly, we will reverse the trial court\u2019s determination on this issue \u201conly upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d See State v. Cagle, 346 N.C. 497, 506-07, 488 S.E.2d 535, 542, cert. denied, \u2014 U.S. \u2014, 139 L. Ed. 2d 614 (1997).\nIn this case, the trial court\u2019s findings reveal its consideration of the Analyzer\u2019s general acceptance in both the medical and forensic fields, the fact that the Analyzer is an established technique for measuring alcohol concentration, and the professional backgrounds of the individuals who operate and/or rely on the Analyzer. Accordingly, as the trial court\u2019s findings reflect its consideration of relevant factors for determining the admissibility of scientific evidence and are reasonably supported by the evidence presented, the trial court did not abuse its discretion in determining that the Analyzer is a reliable scientific method of proof. See State v. Drdak, 330 N.C. 587, 592, 411 S.E.2d 604, 607 (1992) (noting that N.C.G.S. \u00a7 20-139.1(a), which provides for one method of blood-alcohol content analysis, allows for the admission of other competent evidence, including other chemical tests, to show a defendant\u2019s blood-alcohol level).\nFurthermore, the trial court\u2019s findings reveal its consideration of whether the Analyzer results, although generally reliable, were inadmissible due to Defendant\u2019s particular circumstances. See Pennington, 327 N.C. at 101, 393 S.E.2d at 854 (\u201cThe evidence [obtained from a reliable scientific method of proof] may be found to be so tainted that it is totally unreliable and, therefore, must be excluded.\u201d). The trial court found there was \u201cno credible evidence that [Defendant\u2019s] elevated LDH skewed the result of the plasma alcohol test\u201d; elevated LDH alone would not cause \u201ca false positive reading\u201d; there \u201cwere body chemistry readings which indicate that [Defendant\u2019s] lactic acid was not increased\u201d; and the \u201csaline solution administered to [Defendant] . . . did not so effect the chemistry in [Defendant\u2019s] blood plasma as to make the blood plasma alcohol reading here so unreliable as to be inadmissible.\u201d The trial court\u2019s findings reveal that its determination that Defendant\u2019s results were not so tainted as to be totally unreliable was the result of a reasoned decision; accordingly, the trial court did not abuse its discretion.\nDefendant also challenges the reliability of the conversion ratio used to convert her plasma-alcohol concentration to its blood-alcohol concentration equivalent. The trial court received evidence that 1 to 1.18 is the generally accepted conversion ratio in the forensic field and that numerous studies have found ratios between 1 to 1.15 and 1 to 1.21 to be accurate for the overwhelming majority of participants. The trial court\u2019s findings also reveal its consideration of the professional background of the expert employing the 1 to 1.18 ratio. Based on this evidence, the trial court found a conversion ratio of 1 to 1.18 to be reliable, and we see no abuse of discretion in this determination based on the evidence presented in this case. In any event, even using a conversion ratio of 1 to 1.21, the highest conversion ratio deemed reliable by Dr. Waggoner based on his review of numerous studies, Defendant\u2019s blood-alcohol concentration was above the legal limit.\nDefendant additionally contends the results of the Analyzer should have been excluded pursuant to Rule 403 of the North Carolina Rules of Evidence. Again, we disagree. Rule 403 provides that \u201cevidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .\u201d N.C.G.S. \u00a7 8C-1, Rule 403 (1992). \u201cUnfair prejudice is defined as \u2018undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one.\u2019 \u201d State v. Ferguson, 105 N.C. App. 692, 695, 414 S.E.2d 769, 771 (1992) (quoting N.C.G.S. \u00a7 8C-1, Rule 403, official commentary). Whether to exclude evidence pursuant to Rule 403 is within the sound discretion of the trial court. Cagle, 346 N.C. at 506-07, 488 S.E.2d at 542.\nIn this case, Defendant\u2019s Analyzer results, obtained approximately an hour after her accident, are highly probative of whether she was driving while impaired. The evidence obtained and/or derived from the Analyzer, although obviously prejudicial to Defendant, is not unfairly prejudicial. The trial court determined that the Analyzer results were reliable in this case; the Analyzer test results lack emotional content; and both sides were allowed to present explanatory expert testimony to reduce the risk of misleading the jury. It follows that a decision based on these results would not have been on any improper basis. The trial court therefore did not abuse its discretion in determining that the probative value of Defendant\u2019s Analyzer results was not substantially outweighed by the danger of unfair prejudice or jury confusion.\nFinally, we note that, although the trial court determined the reliability of Defendant\u2019s Analyzer test results and the 1 to 1.18 conversion ratio for admissibility purposes, it properly allowed Defendant and the State to present evidence to the jury respectively attacking and supporting the reliability of the Analyzer itself, Defendant\u2019s results on the Analyzer, and the conversion ratio utilized to determine Defendant\u2019s blood-alcohol content. See Pennington, 327 N.C. at 101, 393 S.E.2d at 854. The jury therefore was able to determine the appropriate weight to assign to this evidence.\nII\nTrooper Murphy testified that, on 30 April 1997, Defendant told him she \u201chad drunk a little Schnapps\u201d prior to the accident. Then, over Defendant\u2019s objection, the trial court allowed the State to elicit testimony from Trooper Murphy that he later heard Defendant state she \u201chad drank nothing\u201d prior to the accident. Defendant contends this testimony was inadmissible character evidence elicited for the purpose of attacking her character for truthfulness. We agree, from a review of the transcript, that the State\u2019s only purpose in eliciting the latter statement was to impugn Defendant\u2019s credibility. The State contends this evidence was relevant and therefore admissible. Relevance is only one test for admissibility, however, and does not end the inquiry. See, e.g., N.C.G.S. \u00a7 8C-1, Rule 403 (providing that relevant evidence may be excluded where it is unfairly prejudicial).\nGenerally, the State may not elicit evidence of the defendant\u2019s character in a criminal prosecution unless the evidence is relevant for some purpose other than proving character. See N.C.G.S. \u00a7 8C-1, Rule 404 (Supp. 1998); State v. Sanders, 295 N.C. 361, 373, 245 S.E.2d 674, 682 (1978) (\u201cWhere a defendant has neither testified as a witness nor introduced evidence of his good character, the State may not present evidence of his bad character . . . .\u201d); 1 Brandis & Broun on Evidence \u00a7 88. The State is allowed, however, to rebut evidence of a pertinent character trait offered by the defendant, see N.C.G.S. \u00a7 8C-1, Rule 404(a)(1), and to impeach the defendant\u2019s credibility with specific instances of conduct that are probative of credibility on cross-examination of the defendant or of a witness who has testified as to the defendant\u2019s character, see N.C.G.S. \u00a7 8C-1, Rule 608(b) (1992).\nIn this case, Defendant\u2019s character for truthfulness was not pertinent to the charge of driving while impaired, see State v. Sexton, 336 N.C. 321, 359, 444 S.E.2d 879, 901 (defining \u201cpertinent\u201d in the Rule 404 context), cert. denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994), Defendant did not testify and thus did not subject herself to impeachment, and, at that point in the proceedings, Defendant had not yet elicited testimony from other witnesses which would tend to show her good character. Accordingly, the trial court erred in allowing the State to elicit Trooper Murphy\u2019s testimony concerning Defendant\u2019s conflicting statement.\nError alone, however, does not result in a new trial. The defendant has the burden of showing there exists a \u201creasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.\u201d N.C.G.S. \u00a7 15A-1443(a) (1997). In this case, Defendant pleaded not guilty, and each of Defendant\u2019s witnesses testified they had noticed no odor of alcohol on Defendant\u2019s breath. Trooper Murphy\u2019s objectionable testimony that Defendant stated she \u201chad drank nothing\u201d therefore supports her defense. The State\u2019s elicitation of this testimony did not present any information to the jury which Defendant herself did not present through her own witnesses. Accordingly, we are not persuaded a reasonable possibility exists that the jury would have returned a different verdict absent this error.\nIll\nLastly, Defendant contends the trial court erred in sentencing her to twelve months supervised and forty-eight months unsupervised probation on her reckless driving conviction without finding that this extended period of probation was necessary.\nSection 15A-1343.2 specifies the \u201clength of the original period of probation for offenders sentenced under Article 81B.\u201d N.C.G.S. \u00a7 15A-1343.2(d) (1997). The trial court may sentence offenders to longer or shorter periods of probation, however, if it \u201cmakes specific findings that longer or shorter periods of probation are necessary.\u201d Id.\nIn this case, the State concedes the trial court sentenced Defendant to a longer period than that provided in section 15A-1343.2 without making the required finding. Accordingly, we remand Defendant\u2019s reckless driving conviction for resentencing. The trial court may either reduce Defendant\u2019s probation to the statutory period or may enter a finding that the longer period is necessary.\nDriving While Impaired: No error.\nReckless Driving: Trial \u2014 No error; Sentencing \u2014 Remand.\nJudges MARTIN and McGEE concur.\n. Defendant does not contest the trial court\u2019s decision to make her test results available to the State.\n. Defendant does not contest chain of custody.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, for the State.", "Marjorie S. Canaday, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LYNETTE MAC CARDWELL\nNo. COA98-997\n(Filed 15 June 1999)\n1. Evidence\u2014 driving while impaired \u2014 blood plasma alcohol testing \u2014 results admissible\nThe trial court did not abuse its discretion in a driving while impaired prosecution by admitting into evidence the results from a blood plasma alcohol test performed using an ACA Star Analyzer. The court\u2019s findings reveal its consideration of the Analyzer\u2019s general acceptance in both the medical and forensic fields, the fact that the Analyzer is an established technique for measuring alcohol concentration, the professional backgrounds of the individuals who operate and/or rely on the Analyzer, and defendant\u2019s particular circumstances.\n2. Motor Vehicles\u2014 driving while impaired \u2014 blood plasma alcohol level\u2014 conversion ratio \u2014 reliable\nThe trial court did not abuse its discretion in a driving while impaired prosecution by finding that a ratio of 1 to 1.18 was reliable to convert plasma-alcohol concentration to its blood-alcohol equivalent. The court received evidence that 1 to 1.18 is the generally accepted conversion ratio, that numerous studies have found that ratios between 1 to 1.15 and 1 to 1.21 to be accurate, and the court\u2019s findings reveal consideration of the professional background of the expert employing the 1 to 1.18 ratio. Furthermore, defendant\u2019s blood-alcohol level was above the legal limit even using the highest conversion ratio.\n3. Evidence\u2014 driving while impaired \u2014 blood plasma alcohol level \u2014 not unduly prejudicial\nThe trial court did not abuse its discretion in a driving while impaired prosecution by determining that the probative value of the results of a blood plasma alcohol test was not substantially outweighed by the risk of prejudice. The test results were highly probative of whether defendant was driving while impaired, the court determined that the Analyzer results were reliable, the test results lacked emotional content, and both sides were allowed to present explanatory expert testimony to reduce the risk of misleading the jury.\n4. Evidence\u2014 character for truthfulness impugned \u2014 no prejudice\nThere was no prejudicial error in a prosecution for driving while impaired where a trooper testified that defendant had told him that she had drunk a little Schnapps and the State was allowed to elicit testimony from the same trooper that he later heard defendant state that she had drunk nothing. Although defendant\u2019s character for truthfulness was not pertinent to the charge of driving while impaired, the State\u2019s elicitation of this testimony did not present any information to the jury which defendant did not present herself through her own witnesses.\n5. Sentencing\u2014 driving while impaired \u2014 probation\u2014longer than statutory period \u2014 no findings\nThe trial court erred when sentencing defendant for driving while impaired by sentencing her to a longer probation period than provided in N.C.G.S. \u00a7 15A-1343.2 without making the required finding.\nAppeal by defendant from judgment dated 19 February 1998 by Judge Melzer A. Morgan, Jr. in Rockingham County Superior Court. Heard in the Court of Appeals 27 April 1999.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, for the State.\nMarjorie S. Canaday, for defendant-appellant." }, "file_name": "0496-01", "first_page_order": 526, "last_page_order": 539 }