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State v. Taylor8/17/2004
Glover stated that extrapolation is possible "because we know that humans eliminate alcohol at a fairly predictable rate." Glover admitted that elimination rates vary "depending on a person's experience with alcohol" but stated that "there are elimination rates that have been published for over 65 years that have gained acceptance in the scientific community" which make extrapolation possible. Glover elaborated on how rates can vary and then stated that a "very conservative rate" is used for calculations in North Carolina. Glover described the 0.0165 rate as a conservative rate which tends to "favor the final result because it's going to give you a smaller number." When asked why he used this conservative rate, Glover responded, "because we don't know absolutely . . . a person's alcohol history necessarily[.]" This testimony established that the elimination rate used by Glover was not defendant's actual rate but rather an average rate.
In addition, we note that during Glover's testimony, he performed the actual calculation using the relevant figures in this case. Before multiplying 2.1 (the elapsed time) by 0.0165 (the elimination rate), he was asked, "[a]nd that would be the rate of elimination of alcohol from this defendant's body; is that correct?" Glover responded by saying "[c]orrect." However, in light of the detailed explanation about the process and the origin of the average elimination rate, the jury heard that 0.0165 was not defendant's actual elimination rate.
Further, when questioned about the origin of the rate he used, Glover said it originated with an individual named Professor Whitmark. Glover elaborated by stating that since 1935, a tremendous number of studies have been conducted to measure elimination rates. Those studies have agreed with the rate Professor Whitmark determined, with the exception that people with greater experience with alcohol have a faster elimination rate. Thus, as in Catoe, we conclude that the trial court did not err in admitting Glover's extrapolation testimony even though an average elimination rate was used for the calculation.
We note that the concurring opinion attempts to distinguish Catoe on the ground that unlike defendant in the case before our Court, the defendant in Catoe did not specifically object to the admission of the expert's testimony. However, we note that this failure to object in Catoe has no bearing on our analysis. Despite the lack of proper objection, this Court assumed the question was properly before it and concluded that the expert evidence was nonetheless properly admitted. Catoe, 78 N.C. App. at 168, 336 S.E.2d at 692.
We again note that defendant does not challenge the general admissibility of extrapolation evidence if the calculation is based on a defendant's specific elimination rate. However, defendant asserts that an extrapolation based on an average elimination rate is not the type of extrapolation that is generally admissible. Although we do not find this argument persuasive in light of Catoe, even if we assume that defendant is correct in his assertion that the type of extrapolation calculation done in this case is not generally admissible, we nonetheless hold that under Howerton, the trial court did not err in allowing the testimony.
As expressed in Howerton, under the first step of Goode, if "the trial court is without precedential guidance or faced with novel scientific theories, unestablished techniques, or compelling new perspectives on otherwise settled theories or techniques," the trial court must look to other "'indices of reliability' to determine whether the expert's proffered scientific or technical method of proof is sufficiently reliable[.]" Howerton, ___ N.C. at ___, ___ S.E.2d
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