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State v. Taylor8/17/2004
o 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).
Defendant argues in assignment of error number three that the trial court erred in allowing Glover's testimony that defendant's 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's 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's specific rate, the conclusion of defendant's alcohol content level at the time of the collision was "without foundation, speculative, and mislead[ing] [to] the jury[.]" For the reasons stated below, we find this argument to be without merit.
Defendant contends that the average rate used by Glover "applied a rate of elimination derived from the average rate found in a sample of 'drinking drivers' during roadside tests." Defendant argues that the rate of elimination used for defendant was actually derived by presuming that defendant "falls in [a] class of people labeled 'drinking drivers[.]'" However, we note that defendant's assertion is incorrect. Rather, Glover testified that he used a "conservative rate" that is "less than what has been reported in drinking drivers." 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.
We note at the outset that "[i]t is well-established that trial courts must decide preliminary questions concerning . . . the admissibility of expert testimony." Howerton v. Arai Helmet, Ltd., ___ N.C. ___, ___, ___ S.E.2d ___, ___ (2004) (citing N.C. Gen. Stat. § 8C1, Rule 104(a) (2003)). "[T]rial courts are afforded 'wide latitude of discretion when making a determination about the admissibility of expert testimony.'" Howerton, ___ N.C. at ___, ___ S.E.2d at ___ (quoting State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984)). Thus, "a trial court's ruling on . . . the admissibility of an expert's opinion will not be reversed on appeal absent a showing of abuse of discretion." Howerton, ___ N.C. at ___, ___ S.E.2d at ___.
Howerton 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: "(1) Is the expert's 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's testimony relevant?" Howerton, ___ N.C. at ___, ___ S.E.2d at ___ (internal citations omitted).
Regarding the first step, "when 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." Id. at ___, ___ S.E.2d at ___. Our Court has "accepted the reliability of extrapolation evidence since 1985." 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 "is not challenging the reliability of blood extrapolation science or the general admissibility of such evidence." Rather, defendant challenges Glover's testimony on the ground that it lacked sufficient foundation since the alcohol elimination rate used by Glover when extrapolating was an ave
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