IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-46
Filed: 21 November 2017
Buncombe County, No. 14 CRS 82629
STATE OF NORTH CAROLINA
v.
MICHAEL LYNN HAYES
Appeal by defendant from judgment entered 8 June 2016 by Judge J. Thomas
Davis in Buncombe County Superior Court. Heard in the Court of Appeals 23 August
2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General June S.
Ferrell, for the State.
Jarvis John Edgerton, IV, for defendant.
ELMORE, Judge.
Defendant Michael Lynn Hayes appeals his conviction for habitual impaired
driving, challenging the admission of retrograde extrapolation testimony by the
State’s expert witness. That expert used defendant’s 0.06 blood alcohol concentration
(BAC) one hour and thirty-five minutes after the traffic stop to determine that
defendant had a BAC of 0.08 at the time of the stop. To reach this conclusion, the
expert assumed defendant was in a post-absorptive state at the time of the stop,
meaning that alcohol was in the process of being eliminated from his bloodstream
STATE V. HAYES
Opinion of the Court
and his BAC was in decline. The expert admitted that while there were no facts to
support this assumption, he made it regardless because his retrograde extrapolation
analysis could not be done unless defendant was in a post-absorptive state.
In accordance with State v. Babich, ___ N.C. App. ___, 797 S.E.2d 359 (2017),
we hold that the expert’s testimony was inadmissible under the Daubert standard
that applies to Rule 702 of the Rules of Evidence. “Although retrograde extrapolation
testimony often will satisfy the Daubert test, in this case the testimony failed
Daubert’s ‘fit’ test because the expert’s otherwise reliable analysis was not properly
tied to the facts of this particular case.” Id. at ___, 797 S.E.2d at 360; see Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993) (holding that “helpfulness” standard for admissibility of scientific testimony
under Rule 702 of Federal Rules of Evidence requires a valid scientific connection to
the pertinent inquiry as a precondition to admissibility); see also State v. McGrady,
368 N.C. 880, 787 S.E.2d 1 (2016) (holding that Daubert standard applies to
admissibility determination of expert testimony under amended North Carolina
evidentiary rule).
The State concedes error under Babich; thus, the only issue remaining on
appeal is whether the erroneously-admitted testimony prejudiced defendant.
Because defendant has met his burden of showing a reasonable possibility that a
different result would have been reached had the expert’s testimony been excluded,
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Opinion of the Court
we find prejudicial error in defendant’s conviction. Accordingly, we reverse the trial
court’s judgment and remand for a new trial.
I. Background
On 23 April 2014, Officer Adam Cabe of the Asheville Police Department
conducted a traffic stop leading to defendant’s arrest. Defendant was indicted on 7
June 2014 for habitual impaired driving in violation of N.C. Gen. Stat. § 20-138.5.
The case came to trial on 6 June 2016, and Officer Cabe testified for the State
regarding his interactions with defendant on the evening of the stop.
At approximately 12:43 a.m., Officer Cabe was conducting stationary radar
speed enforcement when he measured defendant driving 50 miles per hour in a 35
mile-per-hour zone. The officer followed defendant and initiated a traffic stop based
on this observation of speeding. Defendant stopped his vehicle at a gas station,
partially in a parking space and partially blocking a gas pump. Officer Cabe exited
his patrol car and approached defendant’s vehicle, noting that defendant appeared to
place chewing gum in his mouth as the officer approached.
When he reached the vehicle, Officer Cabe observed that defendant had glassy
eyes, and he asked for defendant’s driver’s license. Defendant told Officer Cabe he
did not have a driver’s license and instead produced a North Carolina identification
card, which Officer Cabe noticed defendant had difficulty retrieving from his wallet.
During this initial interaction, defendant told the officer he was on his way home
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Opinion of the Court
from working late and had just picked up his children, all four of whom were
passengers in defendant’s vehicle. Defendant also told the officer that defendant’s
oldest son and front-seat passenger was supposed to be driving at the time, but the
young man did not know the way home from that particular area.
Officer Cabe returned to his patrol car to run a record check on defendant,
which revealed outstanding warrants for driving while license revoked and failure to
pay child support. Officer Cabe then placed defendant under arrest based on these
warrants. Defendant requested to use the gas station’s bathroom prior to being
transported to the detention center, but Officer Cabe denied his request; defendant
was allowed to use the bathroom upon arrival at the center. As Officer Cabe
handcuffed and began to search defendant, he detected a moderate odor of alcohol on
defendant’s breath. However, the officer did not ask defendant if he had been
drinking and, if so, when; he did not ask defendant to perform a field sobriety test at
the time of arrest; and he did not arrest defendant on suspicion of impaired driving.
At trial, Officer Cabe testified that he believed defendant was appreciably
impaired based on observations of speeding, chewing gum, glassy eyes, a moderate
odor of alcohol, bathroom use, and defendant’s subsequent refusal to perform a series
of field sobriety tests once at the detention center. Defendant also refused to provide
a breath sample, leading Officer Cabe to secure a search warrant in order to draw
blood from defendant. The test results of that blood draw indicated that defendant’s
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Opinion of the Court
BAC one hour and thirty-five minutes after the traffic stop was 0.06 grams of alcohol
per 100 milliliters of blood. At no time did Officer Cabe observe any direct signs of
physical or mental impairment, such as difficulty walking or standing, slurred
speech, or trouble answering questions and following directions.
In addition to Officer Cabe, Mr. Daniel Cutler testified for the State as an
expert witness in the field of blood alcohol pharmacology, physiology, and related
research, including retrograde extrapolation. Retrograde extrapolation is a
mathematical formula in which a known BAC test result is used to determine a
driver’s BAC at an earlier time (e.g., the time of a traffic stop). State v. Cook, 362
N.C. 285, 288, 661 S.E.2d 874, 876 (2008). The analysis determines the earlier BAC
on the basis of (1) the time elapsed between the traffic stop and the known BAC test,
and (2) the rate of alcohol elimination from the driver’s blood during the time between
the traffic stop and the test. Id. In order for retrograde extrapolation to be applied
accurately under these circumstances, the driver must be in the elimination or “post-
absorptive” phase of alcohol consumption at the time of the stop. Mr. Cutler
estimated that a driver may peak – that is, his body may go from absorbing alcohol
to eliminating it – anywhere from thirty minutes to an hour and thirty minutes after
he takes his final drink.
Defendant objected to the admission of retrograde extrapolation evidence at
trial pursuant to Rule 702(a) of the Rules of Evidence. During voir dire following the
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Opinion of the Court
objection, Mr. Cutler testified that for purposes of his retrograde extrapolation
analysis, he had to assume that defendant had already peaked and thus was in a
post-absorptive state at the time of the traffic stop. Mr. Cutler made this assumption
because the information used in his analysis, which was based on the State’s
evidence, admittedly lacked any indication as to when defendant last consumed
alcohol. Consequently, the only case-specific data tying Mr. Cutler’s analysis to these
particular facts was the time elapsed from the traffic stop to the blood draw. In
overruling defendant’s objection, the trial court expressly acknowledged that Mr.
Cutler’s retrograde extrapolation analysis did not “specifically [apply] characteristics
of this particular defendant.” Mr. Cutler went on to tender his expert opinion – based
on retrograde extrapolation analysis – that defendant’s BAC was 0.08 at the time of
the traffic stop.
In its closing argument, the State repeatedly asserted to the jury that Mr.
Cutler’s retrograde extrapolation analysis was “uncontroverted” and “accepted in the
legal community.” The State also specifically stated to the jury that its evidence
showed defendant’s BAC at the relevant time was at least 0.08, which it based
entirely on Mr. Cutler’s analysis. For its part, the jury asked only two questions of
the court during its nearly four hours of deliberations: first, “what defines a relevant
time frame after driving for a proper blood alcohol test?,” followed forty-five minutes
later by a request to see the State’s written extrapolation report.
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Opinion of the Court
The jury ultimately found defendant guilty of impaired driving under N.C.
Gen. Stat. § 20-138.1. Defendant pled guilty to additional charges of speeding and
driving while license revoked, and he stipulated that he had previously been
convicted of three counts of impaired driving, which elevated his conviction here to
habitual status under N.C. Gen. Stat. § 20-138.5. Defendant entered notice of appeal
in open court on 8 June 2016.
II. Discussion
On appeal, defendant relies on our decision in State v. Babich to support his
contention that the trial court violated N.C. Gen. Stat. § 8C-1, Rule 702(a)(1) and (3)
by allowing into evidence expert witness opinion testimony that was not based on
sufficient facts or data and did not apply the relevant scientific principles reliably to
the facts of the case. ___ N.C. App. ___, 797 S.E.2d 359 (2017) (holding that BAC
expert’s assumption that defendant was in a post-absorptive state at the time of the
traffic stop was not based on any facts, thus expert opinion was inadmissible). As to
this particular argument, the State is unable to distinguish Babich from the case at
bar. The State therefore concedes that Mr. Cutler’s expert opinion regarding his
retrograde extrapolation results should not have been admitted, and we agree. At
issue then is whether the trial court’s error prejudiced defendant.
Judgment will not be set aside for mere error and nothing more; rather, “it
must be made to appear not only that the ruling complained of is erroneous, but also
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Opinion of the Court
that it is material and prejudicial[.]” State v. Rainey, 236 N.C. 738, 741, 74 S.E.2d
39, 41 (1953). An error is not prejudicial unless “there is a reasonable possibility that,
had the error in question not been committed, a different result would have been
reached at the trial out of which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a).
The burden of showing such prejudice is on the defendant. Id.
A defendant may be convicted of driving while impaired if the State proves that
he drove “(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,
[a BAC] of 0.08 or more.” N.C. Gen. Stat. § 20-138.1(a). The jury in this case was
instructed on both alternative grounds.
In Babich, we held that the evidence of the defendant’s appreciable impairment
was sufficient to show that, even without the challenged expert testimony, there was
no reasonable possibility the jury would have reached a different conclusion. ___ N.C.
App. at ___, 797 S.E.2d at 365; see also State v. Taylor, 165 N.C. App. 750, 600 S.E.2d
483 (2004) (holding that any error in admission of retrograde extrapolation testimony
necessary to prove second ground in N.C. Gen. Stat. § 20-138.1(a) was harmless
because of strength of evidence that defendant was appreciably impaired under the
first ground). The evidence of appreciable impairment in Babich consisted of the
following: the officer saw the defendant drive 80 to 90 miles per hour while
approaching a red light, suddenly slow down, then drive through the red light at
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Opinion of the Court
approximately 45 miles per hour; the officer smelled alcohol on the defendant’s
breath; the defendant had glazed and bloodshot eyes; the defendant stumbled as she
walked; the defendant ignored the officer’s instructions and repeatedly talked over
him as he attempted to speak with her; and the defendant did not properly perform
the officer’s field sobriety tests. Id.
The case sub judice is distinguishable from Babich in this regard. Here, the
State presented evidence that the officer believed defendant was appreciably
impaired based on observations of speeding, chewing gum, glassy eyes, a moderate
odor of alcohol, bathroom use, and refusal to perform a series of field sobriety tests.
However, none of these observations amount to evidence of appreciable physical or
mental impairment.
On cross-examination, Officer Cabe testified that normal speeding and
bathroom use were not identified in any of his training as observable factors that
suggest impaired driving. The officer’s remaining observations of chewing gum,
glassy eyes, a moderate odor, and refusal to perform field sobriety tests merely
suggest the recent consumption of an indeterminate amount of alcohol by a person
with no incentive to provide evidence of potential impaired driving, especially given
his prior record. Significantly, the officer testified that he never observed defendant
exhibit slurred speech, reckless driving, weaving, difficulty with motor skills,
difficulty answering questions, or difficulty following directions.
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Opinion of the Court
Based on this lack of evidence of appreciable physical and mental impairment,
defendant contends that the erroneously-admitted retrograde extrapolation
testimony prejudiced defendant by playing a pivotal role in determining the outcome
of his trial, and we agree. Accordingly, we find that defendant has met his burden of
showing prejudicial error in the instant case.
III. Conclusion
For the reasons discussed above, we hold that the trial court erred in admitting
the retrograde extrapolation testimony of the State’s expert witness, and that this
error materially prejudiced defendant. We therefore reverse defendant’s conviction
for driving while impaired and remand this case for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
Judges STROUD and TYSON concur.
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