{ "id": 9000004, "name": "STATE OF NORTH CAROLINA v. DARRYL ROBIN TAYLOR", "name_abbreviation": "State v. Taylor", "decision_date": "2004-08-17", "docket_number": "No. COA03-334", "first_page": "750", "last_page": "763", "citations": [ { "type": "official", "cite": "165 N.C. App. 750" } ], "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": "558 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "92" } ], "opinion_index": 0 }, { "cite": "355 N.C. 136", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220122 ], "year": 2002, "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0136-01" ] }, { "cite": "580 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491737 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0242-01" ] }, { "cite": "571 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250020 ], "year": 2002, "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0341-01" ] }, { "cite": "336 S.E.2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "856" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 39", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519454 ], "year": 1985, "pin_cites": [ { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0039-01" ] }, { "cite": "328 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "846", "parenthetical": "the defendant's blood alcohol content of 0.06 did not establish presumption that the defendant was not impaired; other evidence, principally the opinion of a highway patrolman, sufficed to convict" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 479", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525047 ], "year": 1985, "pin_cites": [ { "page": "482", "parenthetical": "the defendant's blood alcohol content of 0.06 did not establish presumption that the defendant was not impaired; other evidence, principally the opinion of a highway patrolman, sufficed to convict" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0479-01" ] }, { "cite": "323 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "312 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756963 ], "year": 1984, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0432-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "142 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1965, "pin_cites": [ { "page": "365" }, { "page": "504" }, { "page": "364" } ], "opinion_index": 0 }, { "cite": "264 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574136 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0500-01" ] }, { "cite": "393 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "853" } ], "opinion_index": 0 }, { "cite": "327 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498438 ], "year": 1990, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0089-01" ] }, { "cite": "344 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696899, 4705096, 4700622, 4693330, 4702804 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0380-01", "/nc/316/0380-03", "/nc/316/0380-02", "/nc/316/0380-05", "/nc/316/0380-04" ] }, { "cite": "336 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1985, "pin_cites": [ { "page": "692" }, { "page": "692-93" }, { "page": "692" }, { "page": "693" }, { "page": "692" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 167", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520046 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "168" }, { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0167-01" ] }, { "cite": "547 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135924, 135628, 135820, 135989 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0386-01", "/nc/353/0386-04", "/nc/353/0386-03", "/nc/353/0386-02" ] }, { "cite": "542 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "241" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 81", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439554 ], "year": 2001, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0081-01" ] }, { "cite": "461 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793165 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0513-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "376" } ], "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "pin_cites": [ { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2004, "pin_cites": [ { "page": "686", "parenthetical": "citing N.C. Gen. Stat. \u00a7 8C-1, Rule 104(a) (2003)" }, { "page": "686" }, { "page": "686" }, { "page": "686", "parenthetical": "internal citations omitted" }, { "page": "687" }, { "page": "687" }, { "page": "687-88" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "458", "parenthetical": "citing N.C. Gen. Stat. \u00a7 8C-1, Rule 104(a) (2003)" }, { "page": "458" }, { "page": "458" }, { "page": "458" }, { "page": "460" }, { "page": "460-61" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "338 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "expert's qualifications were \"not contested\" and \" [defendant's objections to the contested testimony were only general.\"" } ], "opinion_index": 1 }, { "cite": "315 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714656, 4717665, 4717219, 4716358, 4714838 ], "year": 1985, "pin_cites": [ { "parenthetical": "expert's qualifications were \"not contested\" and \" [defendant's objections to the contested testimony were only general.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/315/0186-05", "/nc/315/0186-04", "/nc/315/0186-01", "/nc/315/0186-03", "/nc/315/0186-02" ] }, { "cite": "580 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "\"The opinion of a law enforcement officer . . . has consistently been held sufficient evidence of impairment....\"" } ], "opinion_index": 1 }, { "cite": "357 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491737 ], "year": 2003, "pin_cites": [ { "parenthetical": "\"The opinion of a law enforcement officer . . . has consistently been held sufficient evidence of impairment....\"" } ], "opinion_index": 1, "case_paths": [ "/nc/357/0242-01" ] }, { "cite": "571 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "871" } ], "opinion_index": 1 }, { "cite": "154 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250020 ], "year": 2002, "pin_cites": [ { "page": "346" } ], "opinion_index": 1, "case_paths": [ "/nc-app/154/0341-01" ] }, { "cite": "323 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "349", "parenthetical": "N.C. Gen. Stat. \u00a7 20-138.1 creates one offense that \"may be proved by either or both theories.\"" } ], "opinion_index": 1 }, { "cite": "312 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756963 ], "year": 1984, "pin_cites": [ { "page": "440", "parenthetical": "N.C. Gen. Stat. \u00a7 20-138.1 creates one offense that \"may be proved by either or both theories.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/312/0432-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "pin_cites": [ { "page": "(a)(2)" }, { "page": "(a)" }, { "page": "(a)(l)" }, { "page": "(a)(1)" }, { "page": "(a)(l)" } ], "opinion_index": 1 }, { "cite": "142 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1965, "pin_cites": [ { "page": "365" } ], "opinion_index": 1 }, { "cite": "264 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574136 ], "year": 1965, "pin_cites": [ { "page": "505" } ], "opinion_index": 1, "case_paths": [ "/nc/264/0500-01" ] }, { "cite": "336 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "692", "parenthetical": "expert's qualifications were \"not contested\" and \" [defendant's objections to the contested testimony were only general.\"" } ], "opinion_index": 1 }, { "cite": "78 N.C. App. 167", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520046 ], "year": 1985, "pin_cites": [ { "page": "168", "parenthetical": "expert's qualifications were \"not contested\" and \" [defendant's objections to the contested testimony were only general.\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/78/0167-01" ] }, { "cite": "547 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "\"Defendant did not object to [the expert's] qualifications.\"" } ], "opinion_index": 1 }, { "cite": "353 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135924, 135628, 135820, 135989 ], "year": 2001, "pin_cites": [ { "parenthetical": "\"Defendant did not object to [the expert's] qualifications.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/353/0386-01", "/nc/353/0386-04", "/nc/353/0386-03", "/nc/353/0386-02" ] }, { "cite": "542 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "241", "parenthetical": "\"Defendant did not object to [the expert's] qualifications.\"" } ], "opinion_index": 1 }, { "cite": "142 N.C. App. 81", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439554 ], "year": 2001, "pin_cites": [ { "page": "90", "parenthetical": "\"Defendant did not object to [the expert's] qualifications.\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/142/0081-01" ] }, { "cite": "461 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "639-40" }, { "page": "640" }, { "page": "641" } ], "opinion_index": 1 }, { "cite": "341 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793165 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc/341/0513-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "686", "parenthetical": "emphasis supplied" }, { "page": "686" }, { "page": "686" } ], "opinion_index": 1 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "458", "parenthetical": "emphasis supplied" }, { "page": "458" }, { "page": "458" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0440-01" ] } ], "analysis": { "cardinality": 1169, "char_count": 33029, "ocr_confidence": 0.752, "pagerank": { "raw": 2.1408763849081548e-07, "percentile": 0.7670744510587297 }, "sha256": "bb9addd6d4a6d59d72aa523f650020d1e6aedf9c84e7bffda1377fb936fac1c7", "simhash": "1:8f4cd02fa2bff4f2", "word_count": 5226 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs.", "Judge TYSON concurs in the result with a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. DARRYL ROBIN TAYLOR" ], "opinions": [ { "text": "McGEE, Judge.\nDarryl Robin Taylor (defendant) was indicted on 24 September 2001 by the Forsyth County grand jury for habitual impaired driving in violation of N.C. Gen. Stat. \u00a7 20-138.5. Defendant stipulated pre-trial to his three prior convictions of driving while impaired. Defendant was convicted of driving while impaired on 11 September 2002. The trial court found defendant to have a prior record level IV and sentenced defendant to a minimum term of twenty-two months and a maximum term of twenty-seven months in prison. Defendant appeals.\nThe State\u2019s evidence at trial tended to show that Preston Browder (Browder) was traveling north on Highway 66 in Rural Hall, North Carolina, in his 1984 GMC truck on 15 March 2001 at approximately 1:00 p.m. As Browder was driving, he saw a van driven by defendant coming towards him. The van was traveling south but was entirely in Browder\u2019s northbound lane. Browder testified that defendant \u201cwas slumped over like he was asleep.\u2019\u2019 In an effort to avoid being hit by defendant\u2019s van, Browder \u201cmade a quick right.\u201d However, defendant\u2019s yan hit Browder\u2019s truck on the driver\u2019s side and \u201cturned [Browder] around in a private driveway.\u201d Browder testified that after the collision, defendant walked over to Browder\u2019s truck and apologized to Browder. Defendant came \u201cwithin five feet\u201d of Browder but not close enough for Browder to determine whether defendant had been drinking.\nTrooper M.W. Davis (Trooper Davis) of the N.C. State Highway Patrol testified that he responded to the accident around 1:10 p.m. and observed defendant\u2019s van facing south but located in the northbound lane. Browder\u2019s vehicle was facing west in a driveway on the shoulder of the northbound lane. Trooper Davis approached defendant\u2019s van and asked defendant for his driver\u2019s license and registration. Trooper Davis testified that defendant responded by \u201clooking] at [him] with a blank face and then [defendant] started fumbling through some papers.\u201d Trooper Davis noticed a \u201cstrong odor of alcohol\u201d and \u201chad to assist [defendant]\u201d in getting to the patrol car. Defendant filled out a voluntary statement and Trooper Davis \u201cbarely [could] make [the statement] out\u201d due to defendant\u2019s failure to write on the appropriate lines. When asked the reason for the collision, defendant stated that he had fallen asleep.\nAfter defendant\u2019s statement was completed, Trooper Davis administered two Alcosensor tests and had defendant perform a \u201cwalk-and-tum\u201d test and a \u201csway test.\u201d Defendant was \u201cswaying off the line\u201d with the walking test and was \u201cswaying side to side\u201d with the sway test. Trooper Davis arrested defendant for driving while impaired and took him to the \u201cForsyth County Breathalyzer room\u201d in the county jail. Upon arrival, Trooper Davis searched defendant and found ten empty packages of Guaifenesin tablets, which defendant stated helped him with his breathing problems. Before administering a breathalyzer test, Trooper Davis administered two additional performance tests. At 3:18 p.m., defendant submitted to the first breathalyzer test, which showed an alcohol concentration of 0.05.\nPaul Glover (Glover), a research scientist and training specialist with the forensic tests for alcohol branch of the North Carolina Department of Health and Human Services, testified as an expert in breath and blood alcohol testing, blood alcohol physiology and pharmacology, and the effect of drugs on human performance and behavior. Glover testified that he performed a retrograde extrapolation and determined that defendant\u2019s alcohol concentration at the time of the collision was 0.08. Glover further testified about the combined effect of alcohol and Guaifenesin. Defendant presented no evidence.\nWe first note that defendant has failed to present an argument in support of assignments of error numbers one, two, four, five, six, seven, eight, nine, and eleven and they are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).\nDefendant argues in assignment of error number three that the trial court erred in allowing Glover\u2019s testimony that defendant\u2019s blood alcohol content at the time of the crash was 0.08, based on an average alcohol elimination rate of 0.0165. Glover utilized a retrograde extrapolation method to determine defendant\u2019s alcohol concentration at the time of the accident. The alcohol elimination rate used by Glover in this calculation was an average rate of 0.0165. Defendant argues that because the elimination rate was based on an average, rather than defendant\u2019s specific rate, the conclusion of defendant\u2019s alcohol content level at the time of the collision was \u201cwithout foundation, speculative, and mislead[ing] [to] the jury[.]\u201d For the reasons stated below, we find this argument to be without merit.\nDefendant contends that the average rate used by Glover \u201capplied a rate of elimination derived from the average rate found in a sample of \u2018drinking drivers\u2019 during roadside tests.\u201d Defendant argues that the rate of elimination used for defendant was actually derived by presuming that defendant \u201cfalls in [a] class of people labeled \u2018drinking drivers[.]\u2019 \u201d However, we note that defendant\u2019s assertion is incorrect. Rather, Glover testified that he used a \u201cconservative rate\u201d that is \u201cless than what has been reported in drinking drivers.\u201d Further, Glover specifically agreed that the average rate he used is lower than the rates from published studies concerning alcohol abusers and persons who drink and drive.\nWe note at the outset that \u201c[i]t is well-established that trial courts must decide preliminary questions concerning ... the admissibility of expert testimony.\u201d Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citing N.C. Gen. Stat. \u00a7 8C-1, Rule 104(a) (2003)). \u201c[T]rial courts are afforded \u2018wide latitude of discretion when making a determination about the admissibility of expert testimony.\u2019 \u201d Howerton, 358 N.C. at 458, 597 S.E.2d at 686 (quoting State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984)). Thus, \u201ca trial court\u2019s ruling on . . . the admissibility of an expert\u2019s opinion will not be reversed on appeal absent a showing of abuse of discretion.\u201d Howerton, 358 N.C. at 458, 597 S.E.2d at 686.\nHowerton sets forth the applicable three-step inquiry from State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995) concerning the admissibility of expert testimony: \u201c(1) Is the expert\u2019s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert\u2019s testimony relevant?\u201d Howerton, 358 N.C. at 458, 597 S.E.2d at 686 (internal citations omitted).\nRegarding the first step, \u201cwhen specific precedent justifies recognition of an established scientific theory or technique advanced by an expert, the trial court should favor its admissibility, provided the other requirements of admissibility are likewise satisfied.\u201d Id. at 459, 597 S.E.2d at 687. Our Court has \u201caccepted the reliability of extrapolation evidence since 1985.\u201d State v. Davis, 142 N.C. App. 81, 90, 542 S.E.2d 236, 241, disc. review denied, 353 N.C. 386, 547 S.E.2d 818 (2001). However, defendant indicates that he \u201cis not challenging the reliability of blood extrapolation science or the general admissibility of such evidence.\u201d Rather, defendant challenges Glover\u2019s testimony on the ground that it lacked sufficient foundation since the alcohol elimination rate used by Glover when extrapolating was an average rate rather than defendant\u2019s actual elimination rate.\nDefendant cites a 19 November 2002 unpublished opinion by this Court, State v. Swain (COA02-6), in acknowledging that \u201cthe science of blood alcohol extrapolation can yield specific conclusions about a defendant if two tests are done to measure that person\u2019s particular rate of elimination.\u201d In Swain, the defendant\u2019s blood alcohol level was tested at two separate points after a car accident. Based on these values, an expert used the extrapolation method to determine the defendant\u2019s blood alcohol level at the time of the accident. The implication in Swain is that the expert determined the defendant\u2019s actual rate of elimination by testing him at two separate intervals. In contrast, defendant in the case before us was only tested once after the accident. Based on this level and an average elimination rate, Glover testified to defendant\u2019s blood alcohol level at the time of the accident.\nOur Court addressed the very issue of whether an average elimination rate can be used for an extrapolation calculation in State v. Catoe, 78 N.C. App. 167, 336 S.E.2d 691 (1985), disc. review denied, 316 N.C. 380, 344 S.E.2d 1 (1986). In Catoe, the defendant argued that the trial court erred in allowing the expert witness to testify that the average person displays a certain rate of decline in blood alcohol content in the hours after the last consumption of alcohol, and that based on that average rate of decline (i.e., elimination rate), the expert witness determined what the defendant\u2019s blood alcohol content would have been at the time of the accident. Catoe, 78 N.C. App. at 168, 336 S.E.2d at 692. The specific average elimination rate which was used is not indicated in Catoe. However, this Court found that the trial court did not err in admitting the expert\u2019s testimony despite the use of an average elimination rate. Id. at 168-69, 336 S.E.2d at 692-93.\nOur Court reasoned in Catoe that the expert testified that he had done experiments to determine the average rate of blood alcohol elimination and had arrived at an average rate \u201cwhich matched that observed by many other nationally and internationally known scientists in [the expert\u2019s] field.\u201d Id. at 169, 336 S.E.2d at 692. Although the expert admitted that a deviation from the average was possible in individual cases, he testified that \u201chis data were very consistent across the various subcategories of the population.\u201d Id. Based on this information, our Court concluded in Catoe that the expert\u2019s testimony was sufficiently reliable and the trial court did not abuse its discretion in admitting it. This Court further held that the possibility of minor variations \u201cwent to the weight, not the admissibility of [the expert\u2019s] testimony.\u201d Id. at 169, 336 S.E.2d at 693. We view Catoe as the type of \u201cspecific precedent\u201d indicated in Howerton which is meant to encourage a trial court to favor the admissibility of extrapolation evidence based on an average elimination rate.\nOur case is similar to Catoe because Glover used an average elimination rate of 0.0165 in his extrapolation calculation to determine defendant\u2019s blood alcohol level at the time of the accident. Glover thoroughly explained the steps of an extrapolation calculation: (1) determine the amount of time that has elapsed between the collision and the actual breathalyzer test; (2) multiply the amount of elapsed time by the rate of alcohol elimination from the body, which represents the amount of alcohol that has been eliminated since the time of the collision; and (3) add the amount of eliminated alcohol to the breathalyzer test result. This figure represents what the person\u2019s blood alcohol content would have been at the time of the collision.\nGlover stated that extrapolation is possible \u201cbecause we know that humans eliminate alcohol at a fairly predictable rate.\u201d Glover admitted that elimination rates vary \u201cdepending on a person\u2019s experience with alcohol\u201d but stated that \u201cthere are elimination rates that have been published for over 65 years that have gained acceptance in the scientific community\u201d which make extrapolation possible. Glover elaborated on how rates can vary and then stated that a \u201cvery conservative rate\u201d is used for calculations in North Carolina. Glover described the 0.0165 rate as a conservative rate which tends to \u201cfavor the final result because it\u2019s going to give you a smaller number.\u201d When asked why he used this conservative rate, Glover responded, \u201cbecause we don\u2019t know absolutely... a person\u2019s alcohol history necessarily[.]\u201d This testimony established that the elimination rate used by Glover was not defendant\u2019s actual rate but rather an average rate.\nIn addition, we note that during Glover\u2019s testimony, he performed the actual calculation using the relevant figures in this case. Before multiplying 2.1 (the elapsed time) by 0.0165 (the elimination rate), he was asked, \u201c[a]nd that would be the rate of elimination of alcohol from this defendant\u2019s body; is that correct?\u201d Glover responded by saying \u201c[c]orrect.\u201d However, in light of the detailed explanation about the process and the origin of the average elimination rate, the jury heard that 0.0165 was not defendant\u2019s actual elimination rate.\nFurther, when questioned about the origin of the rate he used, Glover said it originated with an individual named Professor Whitmark. Glover elaborated by stating that since 1935, a tremendous number of studies have been conducted to measure elimination rates. Those studies have agreed with the rate Professor Whitmark determined, with the exception that people with greater experience with alcohol have a faster elimination rate. Thus, as in Catoe, we conclude that the trial court did not err in admitting Glover\u2019s extrapolation testimony even though an average elimination rate was used for the calculation.\nWe note that the concurring opinion attempts to distinguish Catoe on the ground that unlike defendant in the case before our Court, the defendant in Catoe did not specifically object to the admission of the expert\u2019s testimony. However, we note that this failure to object in Catoe has no bearing on our analysis. Despite the lack of proper objection, this Court assumed the question was properly before it and concluded that the expert evidence was nonetheless properly admitted. Catoe, 78 N.C. App. at 168, 336 S.E.2d at 692.\nWe again note that defendant does not challenge the general admissibility of extrapolation evidence if the calculation is based on a defendant\u2019s specific elimination rate. However, defendant asserts that an extrapolation based on an average elimination rate is not the type of extrapolation that is generally admissible. Although we do not find this argument persuasive in light of Catoe, even if we assume that defendant is correct in his assertion that the type of extrapolation calculation done in this case is not generally admissible, we nonetheless hold that under Howerton, the trial court did not err in allowing the testimony.\nAs expressed in Howerton, under the first step of Goode, if \u201cthe trial court is without precedential guidance or faced with novel scientific theories, unestablished techniques, or compelling new perspectives on otherwise settled theories or techniques,\u201d the trial court must look to other \u201c \u2018indices of reliability\u2019 to determine whether the .expert\u2019s proffered scientific or technical method of proof is sufficiently reliable[.]\u201d Howerton, 358 N.C. at 460, 597 S.E.2d at 687 (quoting State v. Pennington, 327 N.C. 89, 98, 393 S.E.2d 847, 853 (1990)).\nThis assessment does not, however, go so far as to require the expert\u2019s testimony to be proven conclusively reliable, or indisputably valid before it can be admitted into evidence. . . . Therefore, once the trial court makes a preliminary determination that the scientific or technical area underlying a qualified expert\u2019s opinion is sufficiently reliable (and, of course, relevant), any lingering questions or controversy concerning the quality of the expert\u2019s conclusions go to the weight of the testimony rather than its admissibility.\nHowerton, 358 N.C. at 460-61, 597 S.E.2d at 687-88.\nIn light of the fact that defendant does not challenge Glover\u2019s qualification as an expert or the general relevance of extrapolation evidence, we need not address the second and third steps delineated above regarding the admissibility of expert testimony. Based on our discussion above, we hold that the trial court did not abuse its discretion in allowing Glover\u2019s testimony.\nWe also feel compelled to address Hughes v. Vestal, 264 N.C. 500, 142 S.E.2d 361 (1965), the case which the concurrence relies upon for the broad proposition that \u201c[o]ur Supreme Court has rejected average data as evidence to show how a specific action may have occurred or how an individual may have reacted or responded in an \u2018actual set of circumstances.\u2019 \u201d However, the Hughes Court merely concluded that \u201ccharts and tables of stopping distances are incompetent and inadmissible\u201d because such charts constitute hearsay, lack proper foundation, and because they \u201cfurnish[] no specific standards by which the facts of a particular case may be evaluated.\u201d Hughes, 264 N.C. at 505, 142 S.E.2d at 365. Further, in contrast to the case before our Court, Hughes did not involve the admission of expert testimony. Notably, however, the Hughes Court noted another case where \u201cexpert testimony as to the distance within which a certain truck could be stopped when going at a certain rate of speed was ... admissible.\u201d Id. at 504, 142 S.E.2d at 364. For these reasons, we find that Hughes is not applicable to the case before us.\nIn addition, we note that N.C. Gen. Stat. \u00a7 20-138.1 governs the offense of impaired driving and provides that a person is guilty of the offense if he drives \u201c(1) [w]hile under the influence of an impairing substance; or (2) [a]fter having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more.\u201d N.C. Gen. Stat. \u00a7 20-138.1(a) (2003). Thus, \u201cthe acts of driving while under the influence of an impairing substance and driving with an alcohol concentration of [.08] are two separate, independent and distinct ways by which one can commit the single offense of driving while impaired.\u201d State v. Coker, 312 N.C. 432, 440, 323 S.E.2d 343, 349 (1984). According to the pattern jury instructions, if \u201cthe evidence supports submission of the case under both alternatives . . . instructions on both alternatives should be given.\u201d N.C.RI. \u2014 Crim. 270.20. The trial court specifically stated it would \u201cadhere to the pattern instructions\u201d and neither party objected. Subsequently, the instruction on impaired driving in this case tracked the language of the pattern instruction.\nAlthough the primary value of Glover\u2019s testimony was to establish that defendant\u2019s blood alcohol content was above the statutory limit at the time of the collision, the State was not required to establish that level to prove that defendant was driving while impaired (DWI). See State v. Sigmon, 74 N.C. App. 479, 482, 328 S.E.2d 843, 846 (1985) (the defendant\u2019s blood alcohol content of 0.06 did not establish presumption that the defendant was not impaired; other evidence, principally the opinion of a highway patrolman, sufficed to convict). In fact, \u201cthe State may prove DWI where the [blood alcohol content] is entirely unknown or less than [0.08].\u201d State v. Harrington, 78 N.C. App. 39, 46, 336 S.E.2d 852, 856 (1985). \u201cThe opinion of a law enforcement officer . . . has consistently been held sufficient evidence of impairment, provided that it is not solely based on the odor of aleo-hol.\u201d State v. Mark, 154 N.C. App. 341, 346, 571 S.E.2d 867, 871 (2002), aff\u2019d, 357 N.C. 242, 580 S.E.2d 693 (2003).\nIn this case, there was evidence that Trooper Davis smelled an odor of alcohol on defendant\u2019s person at the accident scene, that defendant needed assistance with walking to the patrol car, that defendant had difficulty writing his statement on the appropriate lines, that defendant had a \u201cblank face,\u201d and that defendant did not perform satisfactorily on field sobriety tests administered by Trooper Davis. Further, Trooper Davis gave his opinion that defendant \u201chad consumed a sufficient amount of alcohol to impair both his mental and physical faculties to such an extent that appreciable impairment of either or both [of] his faculties was evident.\u201d This evidence was sufficient for a DWI conviction regardless of Glover\u2019s testimony. Thus, even if the admission of Glover\u2019s testimony was error, the error was not prejudicial.\nDefendant argues in assignment of error number ten that the trial court erred by publishing defendant\u2019s prior record level to the jury immediately before polling the jurors for their verdicts. Defendant argues that this error violated Rules 402 and 403 of the North Carolina Rules of Evidence because defendant\u2019s prior record had no relevance to the issue before the jury and was highly prejudicial information to be revealed to the jury. N.C. Gen. Stat. \u00a7 8C-1, Rules 402, 403 (2003). Defendant acknowledges that he failed to object at trial and accordingly asserts that plain error review is applicable. However, the North Carolina Supreme Court \u201chas previously limited application of the plain error doctrine to jury instructions and evidentiary matters.\u201d State v. Anderson, 355 N.C. 136, 142, 558 S.E.2d 87, 92 (2002). Defendant\u2019s argument fits within neither of these limited situations. Defendant\u2019s plain error argument therefore fails and assignment of error number ten is overruled.\nNo error.\nJudge WYNN concurs.\nJudge TYSON concurs in the result with a separate opinion.", "type": "majority", "author": "McGEE, Judge." }, { "text": "TYSON, Judge\nconcurring in result only.\nI concur in the result reached in the majority opinion to uphold defendant\u2019s driving while impaired conviction. I disagree with its con-elusion that the trial court did not err in allowing Glover to testify that \u201cdefendant\u2019s\u201d blood alcohol concentration at the time of the accident was 0.08 using a retrograde average extrapolation rate.\nI. Average Data\nThe State tendered evidence of an average alcohol elimination rate data to prove defendant\u2019s actual alcohol elimination rate and establish his blood alcohol concentration at the time of the accident. Unlike the defendant in State v. Gatoe, defendant here specifically objected to Glover\u2019s qualifications and argued that his testimony lacked foundation. 78 N.C. App. 167, 168, 336 S.E.2d 691, 692, disc. rev. denied, 315 N.C. 186, 338 S.E.2d 107 (1985) (expert\u2019s qualifications were \u201cnot contested\u201d and \u201c [defendant's objections to the contested testimony were only general.\u201d); see also State v. Davis, 142 N.C. App. 81, 90, 542 S.E.2d 236, 241, disc. rev. denied, 353 N.C. 386, 547 S.E.2d 818 (2001) (\u201cDefendant did not object to [the expert\u2019s] qualifications.\u201d). Since we held in Gatoe, \u201c[t]he assignment [of error] is not properly before this Court,\u201d the remaining discussion in the opinion is obiter dicta and is not binding as precedent at bar. 78 N.C. App. at 168, 336 S.E.2d at 692.\nThe trial court admitted, over defendant\u2019s specific objection, Glover\u2019s testimony that \u201cdefendant\u2019s\u201d elimination rate was 0.0165 and also that \u201cdefendant\u201d had a 0.08 at the time of the accident. Glover relied on \u201can average extrapolation rate,\u201d pure hearsay, instead of defendant\u2019s actual elimination rate to reach his conclusions. Glover failed to establish any connection or common attributes to correlate the average extrapolation rate to defendant\u2019s actual rate to establish relevancy.\nRecently, our Supreme Court clarified the test for admissibility of expert testimony:\nThe most recent North Carolina case from this Court to comprehensively address the admissibility of expert testimony under Rule 702 is State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995), which set forth a three-step inquiry for evaluating the admissibility of expert testimony: (1) Is the expert\u2019s proffered method of proof sufficiently reliable as an area for expert testimony? Id. at 527-29, 461 S.E.2d at 639-40. (2) Is the witness testifying at trial qualified as an expert in that area of testimony? Id. at 529, 461 S.E.2d at 640. (3) Is the expert\u2019s testimony relevant? Id. at 529, 461 S.E.2d at 641.\nHowerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (emphasis supplied). Defendant argues Glover laid no foundation for his testimony because he failed to show any relevance in using the average rate data as it applied to defendant. I agree. The use of average elimination data, instead of defendant\u2019s actual elimination rate, is hearsay, irrelevant, and inadmissible under our Supreme Court\u2019s holdings in Goode and Howerton.\nOur Supreme Court has rejected average data as evidence to show how a specific action may have occurred or how an individual may have reacted or responded in an \u201cactual set of circumstances.\u201d Hughes v. Vestal, 264 N.C. 500, 505, 142 S.E.2d 361, 365 (1965). In Hughes, our Supreme Court addressed the admission into evidence of a chart showing average stopping distances. The Court rejected the use of these charts at trial and held:\nA formula, in which so many components are variables and in which there is only one constant (rate of speed), cannot by projection of a positive result (distance), based on speculative averages, be of sufficient accuracy and relevancy to rise of its own force to the dignity of evidence in an actual set of circumstances. This and its hearsay character have led to its rejection as evidence in a large majority of the jurisdictions where the question has been directly raised.\nId. The Court stated, \u201cThe factors involved in stopping automobiles are so many and varied that a fixed formula is of slight, if any, value in a given case.\u201d Id. The Court reiterated that numerous variables affect the outcome in specific situations, including the vehicle\u2019s weight, condition of tire tread, force of brakes, and types of roadways. Id.\nSimilarly, Glover admitted that numerous variables exist to determine an individual\u2019s alcohol elimination rate, including, among other things, a person\u2019s: (1) gender; (2) height; (3) weight; (4) age; (5) elapsed time since eating; (6) \u201crecent consumption\u201d of alcohol; (7) type of alcohol consumed; and (8) \u201ca person\u2019s experience with alcohol.\u201d Glover testified that an individual\u2019s elimination rate \u201ccould be different within a given individual on different days.\u201d Glover further testified that \u201cthe ideal way [to know defendant\u2019s elimination rate] would be to get multiple samples at the time of the event, the arrest or the crash . . . [or] do a controlled experiment where you . . . measured it.\u201d Glover neither identified nor correlated any similarities between defendant and those out of court persons tested during the experiments that collectively led to the \u201caverage\u201d elimination rate.\nIn Catoe, we recognized, \u201cusual constraints of relevance continue to apply.\u201d 78 N.C. App. at 170, 336 S.E.2d at 693. Average data is hearsay, purely circumstantial, and irrelevant'to defendant\u2019s alcohol elimination rate and blood alcohol concentration at the time of the accident. The State failed to prove the relevance of Glover\u2019s average data testimony. Glover had neither personal knowledge nor any foundation to testify that defendant\u2019s rate of eliminating alcohol from his body is 0.0165 per hour. See Howerton, 358 N.C. at 458, 597 S.E.2d at 686. Glover\u2019s opinion that defendant\u2019s blood alcohol concentration was 0.08 at the time of the accident was also without foundation. Defendant\u2019s breathalyzer test showed 0.05, well below the \u201c0.08 or more\u201d alcohol concentration required for conviction under the statute. N.C. Gen. Stat. \u00a7 20-138.1(a)(2) (2003).\nGlover failed to show how another out of court individual\u2019s or the average of a group of other individuals\u2019 alcohol elimination rates were relevant to defendant\u2019s rate on the date of the accident. The trial court erred in admitting this testimony. See Howerton, 358 N.C. at 458, 597 S.E.2d at 686. Glover\u2019s use of a \u201cconservative rate\u201d does not cure the hearsay defect or establish relevancy. Glover also failed to lay a foundation by correlating the average rates to defendant\u2019s age, sex, height, weight, or any other physical characteristic to establish relevancy to be admitted into evidence. If Glover\u2019s testimony on average rates was the sole basis for the jury to return a guilty verdict on defendant\u2019s having a blood alcohol concentration of 0.08 or more, his conviction must be reversed.\nII. Presentation of Issues to the Jury\nThe trial court instructed the jury pursuant to N.C. Gen. Stat. \u00a7 20-138.1(a) (2003) that it should convict defendant if it found beyond a reasonable doubt that he operated a vehicle either: \u201cunder the influence of an impairing substance or had consumed sufficient alcohol that . . . defendant had an alcohol concentration of 0.08 or more ....\u201d The issues, however, were not submitted to the jury separately. Further, the jury\u2019s verdict does not reflect which prong of the statute they found defendant violated. As defendant failed to request separate instructions, object to the trial court\u2019s instructions, assign error to the instructions, or argue plain error, this issue is not reviewable. Despite a clear indication in the record that the jury returned an unanimous verdict of either, or both, a 0.08 blood alcohol concentration or an appreciable impairment, defendant failed to preserve this error and waived his right to appellate review of the jury instructions. See N.C.R. App. P. 10(b)(2) (2004). Where the evidence shows defendant may have consumed a combination of alcohol and another impairing substance, the better practice is for the trial court to submit the issues separately to the jury to determine whether defendant operated a vehicle: (1) \u201c[w]hile under the influence of an impairing substance;\u201d or (2) \u201c[a]fter having consumed sufficient alcohol that [defendant] has ... an alcohol concentration of 0.08 or more.\u201d N.C. Gen. Stat. \u00a7 20-138.1(a)(l)-(2) (2003).\nIII. Conclusion\nThe trial court erred in admitting Glover\u2019s testimony of defendant\u2019s extrapolation rate and blood alcohol concentration based on irrelevant average data. Average data alone is hearsay, not relevant, and insufficient to prove defendant\u2019s alcohol extrapolation rate and blood alcohol concentration level at the time of the accident. Without proving the relevance of this average data as it relates to defendant\u2019s actual elimination rate, Glover lacked a foundation to offer this portion of his testimony. Defendant was denied his right to confront and cross-examine these hearsay declarations, which formed the basis for Glover\u2019s average data and were introduced to prove the truth of the matters asserted. In light of the other substantial evidence presented at trial and defendant\u2019s failure to object to the presentation of issues to the jury, this error was harmless.\nOther testimony sufficiently supports the jury\u2019s conviction of defendant under N.C. Gen. Stat. \u00a7 20-138.1(a)(1) of driving \u201c[w]hile under the influence of an impairing substance.\u201d See State v. Coker, 312 N.C. 432, 440, 323 S.E.2d 343, 349 (1984) (N.C. Gen. Stat. \u00a7 20-138.1 creates one offense that \u201cmay be proved by either or both theories.\u201d); see also State v. Mark, 154 N.C. App. 341, 346, 571 S.E.2d 867, 871 (2002), aff'd, 357 N.C. 242, 580 S.E.2d 693 (2003) (\u201cThe opinion of a law enforcement officer . . . has consistently been held sufficient evidence of impairment....\u201d). Trooper Davis testified that defendant smelled of alcohol, stared at him with a \u201cblank face,\u201d fumbled through his papers, and needed assistance in getting to the patrol car. Trooper Davis also testified defendant was \u201cswaying\u201d during the \u201cwalk-and-turn\u201d test, as well as during the \u201csway test.\u201d Trooper Davis found ten empty packages of Guaifenesin tablets on defendant. Glover testified as an expert on the combined effect of these tablets and alcohol. This evidence is sufficient to support defendant\u2019s driving while impaired conviction under N.C. Gen. Stat. \u00a7 20-138.1(a)(l).\nI concur in the result reached by the majority opinion and vote to sustain defendant\u2019s conviction.", "type": "concurrence", "author": "TYSON, Judge" } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III and Assistant Attorney General Patricia A. Duffy, for the State.", "Jarvis John Edgerton, IV for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DARRYL ROBIN TAYLOR\nNo. COA03-334\n(Filed 17 August 2004)\n1. Evidence\u2014 expert testimony \u2014 blood alcohol extrapolation\nThe admission of expert testimony about an impaired driving defendant\u2019s alcohol concentration at the time of an automobile accident was not an abuse of discretion even though the witness used an average alcohol elimination rate when doing a retrograde extrapolation. Moreover, there was other evidence sufficient for a DWI conviction in the observations of the officer who arrested defendant; driving while impaired can be established by either blood alcohol level or the opinion of a highway patrolman.\n2. Appeal and Error\u2014 plain error review \u2014 instructions and evidence only\nPlain error review did not apply to an argument concerning information revealed to the jury by the judge just before the jury was polled. Plain error doctrine is limited to jury instructions and evidentiary matters.\nJudge Tyson concurring in result.\nAppeal by defendant from judgment dated 12 September 2002 by Judge L. Todd Burke in Superior Court, Forsyth County. Heard in the Court of Appeals 27 January 2004.\nAttorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III and Assistant Attorney General Patricia A. Duffy, for the State.\nJarvis John Edgerton, IV for defendant-appellant." }, "file_name": "0750-01", "first_page_order": 782, "last_page_order": 795 }