State v. Babich, COA16-762
| Decision Date | 07 March 2017 |
| Docket Number | No. COA16-762,COA16-762 |
| Citation | 252 N.C.App. 165,797 S.E.2d 359 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Lori Lee BABICH |
Attorney General Joshua H. Stein, by Special Deputy Attorney General Hal F. Askins, for the State.
Sharon L. Smith, Raleigh, for defendant.
Defendant Lori Lee Babich appeals her conviction for habitual impaired driving, challenging the admission of retrograde extrapolation testimony by the State's expert witness. That expert used Babich's 0.07 blood alcohol concentration one hour and forty-five minutes after the traffic stop to extrapolate that Babich had a blood alcohol concentration of 0.08 to 0.10 at the time of the stop. To reach this conclusion, the expert assumed that Babich was in a post-absorptive state at the time of the stop, meaning that alcohol was no longer entering Babich's bloodstream and thus her blood alcohol level was declining. The expert conceded that there were no facts to support this assumption. The expert made this assumption not because it was based on any facts in the case, but because her retrograde extrapolation calculations could not be done unless Babich was in a post-absorptive state.
As explained below, we hold that the expert's testimony was inadmissible under the Daubert standard that applies to Rule 702 of the Rules of Evidence. Although retrograde extrapolation testimony often will satisfy the Daubert test, in this case the testimony failed Daubert ’s "fit" test because the expert's otherwise reliable analysis was not properly tied to the facts of this particular case.
Although we conclude that this expert testimony was inadmissible under Daubert , we nevertheless uphold Babich's conviction. As explained below, in light of the strength of the State's evidence that Babich was appreciably impaired, there is no reasonable possibility that exclusion of the expert's testimony would have affected the outcome of this case. Accordingly, we find no prejudicial error in Babich's conviction and sentence.
On 16 May 2014 at approximately 3:20 a.m., Officer Britton Creech of the Wilmington Police Department saw Defendant Lori Lee Babich driving her vehicle at a high speed in a 45 mile-per-hour zone. After an initial radar reading of 83 miles per hour, Officer Creech began pursuing Babich. While following her, Officer Creech registered a second radar reading of 91 miles per hour. Officer Creech then observed Babich brake before an intersection with a red light, slow down to approximately 45 miles per hour, and then cross the intersection despite the red light. Officer Creech pulled Babich over.
Babich immediately exited her vehicle and approached the officer. Officer Creech commanded Babich to stop and stay in her vehicle, but Babich did not comply, causing the officer to grab her and place her in handcuffs. The officer smelled alcohol on Babich's breath, Babich stumbled as she walked, and her eyes were glazed and red. Officer Creech removed the handcuffs and asked Babich to perform several field sobriety tests.
On the one-leg-stand test, Babich placed her foot on the ground two times and raised her arms for balance contrary to instructions. On the walk-and-turn test, Babich started over in the middle of the test and on three steps did not walk in a heel-to-toe manner as instructed. Finally, on the finger-to-nose test
, Babich touched her face instead of her nose. Based on his observations and Babich's unsatisfactory performance on the sobriety tests, Officer Creech arrested Babich for driving while impaired.
At the police station, Officer Dwayne Ouellette, a certified chemical analyst, used an intoximeter breath testing instrument to administer a breath alcohol test to Babich. Officer Ouellette collected breath samples from Babich at 5:07 a.m. and 5:09 a.m. which both reported a breath alcohol concentration of 0.07. Babich had been stopped by Officer Creech at 3:26 a.m. and remained in his custody and under his observation until Officer Ouellette performed the breath test. During the time she was in custody, Babich did not consume any alcohol or have any opportunity to consume any alcohol.
The State charged Babich with reckless driving to endanger, driving while license revoked, speeding, driving while impaired, and habitual impaired driving. At trial, Bethany Pridgen, a forensic chemist with the Wilmington Crime Lab, testified as an expert witness for the State regarding retrograde extrapolation. Pridgen testified that she performed a retrograde extrapolation to estimate Babich's blood alcohol concentration at the time she was stopped. Based on her calculation, Pridgen gave a conservative estimate that Babich's blood alcohol concentration was between 0.08 and 0.10 at the time of the stop.
The jury convicted Babich of impaired driving, speeding, and reckless driving. Babich stipulated to three prior DWI convictions, constituting habitual status, and was sentenced to 19 to 32 months in prison. Babich timely appealed.
Babich contends that the retrograde extrapolation testimony of the State's expert witness was inadmissible under Rule 702(a)(1) because it was not based on sufficient facts or data. As explained below, although retrograde extrapolation testimony can be scientifically reliable, we hold here that the opinion of the State's expert was not sufficiently tied to the particular facts of this case and thus fails the Daubert "fit" test.
We review a trial court's admission of expert testimony for abuse of discretion. State v. Anderson , 322 N.C. 22, 28, 366 S.E.2d 459, 463 (1988). Our Supreme Court recently confirmed that Rule 702(a) of the Rules of Evidence "incorporates the standard from the Daubert line of cases" in federal evidentiary jurisprudence. State v. McGrady , 368 N.C. 880, 888, 787 S.E.2d 1, 8 (2016). To be admissible under Rule 702(a), expert testimony Id. at 890, 787 S.E.2d at 9.
In addition, even if expert scientific testimony might be reliable in the abstract, to satisfy Rule 702(a) ’s relevancy requirement, the trial court must assess "whether that reasoning or methodology properly can be applied to the facts in issue." Daubert v. Merrell Dow Pharm., Inc ., 509 U.S. 579, 593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). This ensures that "expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Id. at 591, 113 S.Ct. 2786 (quoting United States v. Downing , 753 F.2d 1224, 1242 (3d Cir. 1985) ). The Supreme Court in Daubert referred to this as the "fit" test. Id.
We now apply these principles from Rule 702, McGrady , and Daubert to this case. At the outset, we note that Babich does not contend that all retrograde extrapolation of blood alcohol content is unreliable under Rule 702(a). Indeed, her own expert testified that retrograde extrapolation can be scientifically reliable if based on sufficiently reliable data. See generally State v. Turbyfill , ––– N.C.App. ––––, ––––, 776 S.E.2d 249, 256 (2015) (). Babich instead focuses on the key underlying assumption that the State's expert used in her retrograde extrapolation analysis—that Babich was in a post-absorptive state at the time of the stop.
To extrapolate Babich's blood alcohol level at the time of her arrest, the State's expert started with Babich's blood alcohol test at the police station, which occurred one hour and forty-five minutes after her arrest. Babich's blood alcohol concentration in that test was 0.07.
The State's expert then used a mathematical formula to extrapolate Babich's blood alcohol concentration at the time of the traffic stop based on her 0.07 blood alcohol level one hour and forty-five minutes later. To do so, the expert used data from previous scientific research to devise an average alcohol elimination rate—a conservative estimate of the rate at which the average person eliminates alcohol from the bloodstream. Using this model, the expert opined that, because Babich had a blood alcohol concentration of 0.07 one hour and forty-five minutes after the traffic stop, she had a blood alcohol concentration of 0.08 to 0.10 at the time of the stop.
Importantly, this mathematical model is applicable only if the subject is in a "post-absorptive" or "post-peak" state—meaning that alcohol is no longer entering the subject's bloodstream and thus her blood alcohol level is declining. The State's expert acknowledged that there are many factors that can impact whether a person is in a post-absorptive or post-peak state, such as when the person last consumed alcohol (and how much was consumed), and whether the person consumed any food that could delay the alcohol's absorption into the bloodstream.
And, just as importantly, the State's expert conceded that she had no factual information in this case from which she could assume that Babich was in a post-absorptive state. But, because the expert's model would not work unless Babich was post-peak, the expert simply assumed that this was the case—although the expert readily conceded that she had no underlying facts to support this assumption:
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