State v. Babich , 252 N.C. App. 165 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-762
Filed: 7 March 2017
New Hanover County, Nos. 14 CRS 6705, 53596-97
STATE OF NORTH CAROLINA
v.
LORI LEE BABICH
Appeal by defendant from judgments entered 26 February 2016 by Judge Jay
D. Hockenbury in New Hanover County Superior Court. Heard in the Court of
Appeals 24 January 2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Hal F.
Askins, for the State.
Sharon L. Smith for defendant.
DIETZ, Judge.
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
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Opinion of the Court
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.
Facts and Procedural History
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
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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
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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.
Analysis
I. Admissibility of the Retrograde Extrapolation Testimony
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
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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 “must meet the three-pronged reliability test that is new to
the amended rule: (1) The testimony must be based upon sufficient facts or data. (2)
The testimony must be the product of reliable principles and methods. (3) The witness
must have applied the principles and methods reliably to the facts of the case.” 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 (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 (quoting United States v.
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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) (“[B]lood alcohol extrapolation is a scientifically valid
field, which principles have been tested, subjected to peer review and publication, and
undisputedly accepted in the scientific community and in our courts.”). 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
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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:
Q: Moving to this case in particular, Ms. Babich, you’ve not
been provided any data whatsoever, facts about when her
last consumption of alcohol was, or whether she consumed
food, 30 to, I mean, 90 minutes prior?
[STATE’S EXPERT]: No, I have not.
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Q. So you’re assuming that she did—she’s in the post-
absorptive state?
A. That’s correct.
Q. And that’s not based really on any fact?
A. Nope.
Q. There is no fact that you’ve been presented to make that
assumption?
A. That’s correct.
Q. You have to make an assumption?
A. In order to do the calculation, I make the assumption.
...
Q. Again to clarify, for Ms. Babich specifically, if you have
that information and if Ms. Babich was not in the post-
absorptive state, would your opinion change?
A. For the time of the incident? Yeah. I mean, if there was
information that told me that at the time of the incident,
you know, she had had something to drink 20 minutes
before, then I would be like, well, I don’t believe she’s post-
peak so it wouldn’t be a fair—it wouldn’t be fair to make
that calculation because I can’t make that assumption now
because I’ve been given other data.
Q. Would you make the calculation?
A. No.
Q. What if you had data about her consuming a beverage,
the last consumption of alcoholic beverage being one hour
before with food, she would not be in the post-absorptive
state; correct?
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A. Well, if I’ve been given that as a fact, now I have to make
the assumption that she’s pre-peak and—you cannot make
the retrograde extrapolation calculation without assuming
post-peak. So, yeah, it would definitely change. I wouldn’t
be able to do it, or I would say, well, within light of this type
of information, I would now assume in the absorption
phase during that time and then a retrograde extrapolation
would not necessarily be an accurate assumption.
Q. So if Ms. Babich was not post-peak or not in the post-
absorptive state, you would not have an opinion about her
breath at the time?
A. That’s correct.
In light of this testimony, the question posed in this case is straightforward:
under Daubert, can an expert offer an opinion that extrapolates a criminal
defendant’s blood alcohol concentration where that extrapolation can be done only if
the defendant was in a post-absorptive state, and the expert had no evidence on which
to base the underlying assumption that the defendant was in a post-absorptive state?
As explained below, we hold that expert testimony in this circumstance is
inadmissible under Daubert because, as a matter of law, that testimony cannot satisfy
the “fit” test.
To date, our State’s appellate courts have not addressed this issue (either
before or after the adoption of the Daubert methodology). But other courts have, and
the majority of those courts have found that the evidence cannot satisfy the criteria
of Rule 702(a).
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For example, the New Mexico Supreme Court’s decision in State v. Downey
involved nearly identical facts. 195 P.3d 1244, 1252 (N.M. 2008). The state’s expert
assumed the defendant was in a post-absorptive state without any underlying facts
to support that assumption. The court explained that “[g]iven that [the expert] did
not have the facts necessary to plot Defendant’s placement on the [blood alcohol
concentration] curve, he could not express a reasonably accurate conclusion regarding
the fact in issue: whether Defendant was under the influence of intoxicating liquor at
the time of the collision.” Id. The court held that the expert’s testimony could not
satisfy Daubert’s “fit” requirement because the expert did not have sufficiently
reliable underlying facts to which he could apply his otherwise reliable methodology.
Id. As the court explained, the expert’s testimony “did not ‘fit’ the facts of the present
case because he simply assumed for the purpose of his relation-back calculations that
Defendant had ceased drinking prior to the collision and, therefore, was post-
absorptive.” Id.The New Mexico Supreme Court then addressed the implications of this
holding, explaining that retrograde extrapolation can be (and often will be)
admissible. But, at a minimum, the expert must have some facts from which the
expert can assume that the defendant is in a post-absorptive state:
Experts may, and often do, base their opinions upon factual
assumptions, but those assumptions in turn must find
evidentiary foundation in the record. Here, by contrast, the
State did not produce any evidence regarding when
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Defendant last consumed alcohol, much less the quantity
consumed, which rendered [the expert’s] assumption mere
guesswork in the context of this particular case.
Accordingly, because [the expert’s] conclusions were
nothing more than mere conjecture and should have been
excluded, the trial court abused its discretion in permitting
this evidence to go to the jury.
We recognize that information regarding when a defendant
had begun or ceased drinking may be difficult to obtain
absent an admission from the defendant. We point out,
however, that the State may be able to glean this
information from third-party witnesses or from
circumstantial evidence.
Id. (internal citations omitted).
Courts in other jurisdictions have reached the same conclusion when applying
the Daubert test or similar evidentiary jurisprudence. See, e.g., People v. Floyd, 11
N.E.3d 335, 342 (Ill. App. Ct. 2014); State v. Wolf, 605 N.W.2d 381, 385 (Minn. 2000);
State v. Dist. Ct. (Armstrong), 267 P.3d 777, 783 (Nev. 2011); Commonwealth v.
Petrovich, 648 A.2d 771, 773–74 (Pa. 1994); Mata v. State, 46 S.W.3d 902, 916 (Tex.
Crim. App. 2001).
We agree with the New Mexico Supreme Court’s analysis in Downey. Applying
the requirements of Rule 702(a), as interpreted by our Supreme Court in McGrady,
we hold that, when an expert witness offers a retrograde extrapolation opinion based
on an assumption that the defendant is in a post-absorptive or post-peak state, that
assumption must be based on at least some underlying facts to support that
assumption. This might come from the defendant’s own statements during the initial
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stop, from the arresting officer’s observations, from other witnesses, or from
circumstantial evidence that offers a plausible timeline for the defendant’s
consumption of alcohol.
When there are at least some facts that can support the expert’s assumption
that the defendant is post-peak or post-absorptive, the issue then becomes one of
weight and credibility, which is the proper subject for cross-examination or competing
expert witness testimony. But where, as here, the expert concedes that her opinion is
based entirely on a speculative assumption about the defendant—one not based on
any actual facts—that testimony does not satisfy the Daubert “fit” test because the
expert’s otherwise reliable analysis is not properly tied to the facts of the case.
Daubert, 509 U.S. at 593. Accordingly, we hold that the trial court abused its
discretion by admitting the challenged expert testimony in this case.
II. Harmless Error Analysis
Because we conclude that the trial court erred in admitting the State’s expert
testimony, we must address whether that error prejudiced Babich. “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 trial.” State v. Mason,
144 N.C. App. 20, 27–28, 550 S.E.2d 10, 16 (2001). “Where it does not appear that the
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erroneous admission of evidence played a pivotal role in determining the outcome of
the trial, the error is harmless.” Id. at 28, 550 S.E.2d at 16.
A defendant may be convicted of driving while impaired if the State proves that
the defendant drove “(1) While under the influence of an impairing substance; or (2)
After having consumed sufficient alcohol that he has, at any relevant time after the
driving, an alcohol concentration 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 State v. Taylor, this Court held that any error in the admission of retrograde
extrapolation testimony necessary to prove the second ground in N.C. Gen. Stat. § 20-
138.1(a) was harmless because of the strength of the evidence that the defendant was
appreciably impaired under the first ground. 165 N.C. App. 750, 758, 600 S.E.2d 483,
489 (2004). The evidence of appreciable impairment in Taylor consisted of the
following: “that [the officer] smelled an odor of alcohol on defendant’s 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 ‘blank face,’ and that defendant did not perform satisfactorily on
field sobriety tests administered by [the officer].” Id.We are unable to distinguish this case from Taylor. Here, the State presented
evidence that the officer saw Babich drive 80 to 90 miles per hour while approaching
a red light, suddenly slow down, and then drive through the red light at
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approximately 45 miles per hour. When the officer stopped Babich, he smelled alcohol
on her breath and saw that she had glazed and bloodshot eyes. Babich also stumbled
as she walked. Babich ignored the officer’s instructions and repeatedly talked over
him as he attempted to speak to her. Babich did not properly perform the field
sobriety tests, including touching her face instead of her nose, using her other foot
and hands to balance herself during the one-leg-stand test, and failing and starting
over during the walk-and-turn test. Under Taylor, this evidence is sufficient to show
that, even without the challenged expert testimony, there is no reasonable possibility
that the jury would have reached a different result. Accordingly, although we find
error in the trial court’s evidentiary ruling, we hold that the error did not prejudice
Babich and thus we uphold her conviction and sentence.
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, but find no
prejudicial error.
NO PREJUDICIAL ERROR.
Judges BRYANT and HUNTER, JR. concur.
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