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State v. Taylor8/17/2004
rage rate rather than defendant's actual elimination rate.
Defendant cites a 19 November 2002 unpublished opinion by this Court, State v. Swain (COA02-6), in acknowledging that "the science of blood alcohol extrapolation can yield specific conclusions about a defendant if two tests are done to measure that person's particular rate of elimination." In Swain, the defendant's blood alcohol level was tested at two separate points after a car accident. Based on these values, an expert used the extrapolation method to determine the defendant's blood alcohol level at the time of the accident. The implication in Swain is that the expert determined the defendant's actual rate of elimination by testing him at two separate intervals. In contrast, defendant in the case before us was only tested once after the accident. Based on this level and an average elimination rate, Glover testified to defendant's blood alcohol level at the time of the accident.
Our Court addressed the very issue of whether an average elimination rate can be used for an extrapolation calculation in State v. Catoe, 78 N.C. App. 167, 336 S.E.2d 691 (1985), disc. review denied, 316 N.C. 380, 344 S.E.2d 1 (1986). In Catoe, the defendant argued that the trial court erred in allowing the expert witness to testify that the average person displays a certain rate of decline in blood alcohol content in the hours after the last consumption of alcohol, and that based on that average rate of decline (i.e., elimination rate), the expert witness determined what the defendant's blood alcohol content would have been at the time of the accident. Catoe, 78 N.C. App. at 168, 336 S.E.2d at 692. The specific average elimination rate which was used is not indicated in Catoe. However, this Court found that the trial court did not err in admitting the expert's testimony despite the use of an average elimination rate. Id. at 168-69, 336 S.E.2d at 69293.
Our Court reasoned in Catoe that the expert testified that he had done experiments to determine the average rate of blood alcohol elimination and had arrived at an average rate "which matched that observed by many other nationally and internationally known scientists in [the expert's] field." Id. at 169, 336 S.E.2d at 692. Although the expert admitted that a deviation from the average was possible in individual cases, he testified that "his data were very consistent across the various subcategories of the population." Id. Based on this information, our Court concluded in Catoe that the expert's testimony was sufficiently reliable and the trial court did not abuse its discretion in admitting it. This Court further held that the possibility of minor variations "went to the weight, not the admissibility of [the expert's] testimony." Id. at 169, 336 S.E.2d at 693. We view Catoe as the type of "specific precedent" indicated in Howerton which is meant to encourage a trial court to favor the admissibility of extrapolation evidence based on an average elimination rate.
Our case is similar to Catoe because Glover used an average elimination rate of 0.0165 in his extrapolation calculation to determine defendant's blood alcohol level at the time of the accident. Glover thoroughly explained the steps of an extrapolation calculation: (1) determine the amount of time that has elapsed between the collision and the actual breathalyzer test; (2) multiply the amount of elapsed time by the rate of alcohol elimination from the body, which represents the amount of alcohol that has been eliminated since the time of the collision; and (3) add the amount of eliminated alcohol to the breathalyzer test result. This figure represents what the person's blood alcohol content would have been at the time of the collision.
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