               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,



                                          -2-
                                     STATE V. HAYES

                                     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



                                            -3-
                                   STATE V. HAYES

                                  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



                                         -4-
                                   STATE V. HAYES

                                  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



                                         -5-
                                   STATE V. HAYES

                                   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.



                                          -6-
                                    STATE V. HAYES

                                   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



                                          -7-
                                    STATE V. HAYES

                                   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



                                          -8-
                                      STATE V. HAYES

                                     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.



                                            -9-
                                   STATE V. HAYES

                                  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.




                                         - 10 -
