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State v. Taylor8/17/2004
at ___ (quoting State v. Pennington, 327 N.C. 89, 98, 393 S.E.2d 847, 853 (1990)).
This assessment does not, however, go so far as to require the expert's testimony to be proven conclusively reliable or indisputably valid before it can be admitted into evidence. . . . Therefore, once the trial court makes a preliminary determination that the scientific or technical area underlying a qualified expert's opinion is sufficiently reliable (and, of course, relevant), any lingering questions or controversy concerning the quality of the expert's conclusions go to the weight of the testimony rather than its admissibility.
Howerton, ___ N.C. at ___, ___ S.E.2d at ___.
In light of the fact that defendant does not challenge Glover's qualification as an expert or the general relevance of extrapolation evidence, we need not address the second and third steps delineated above regarding the admissibility of expert testimony. Based on our discussion above, we hold that the trial court did not abuse its discretion in allowing Glover's testimony.
We also feel compelled to address Hughes v. Vestal, 264 N.C. 500, 142 S.E.2d 361 (1965), the case which the concurrence relies upon for the broad proposition that "[o]ur Supreme Court has rejected average data as evidence to show how a specific action may have occurred or how an individual may have reacted or responded in an 'actual set of circumstances.'" However, the Hughes Court merely concluded that "charts and tables of stopping distances are incompetent and inadmissible" because such charts constitute hearsay, lack proper foundation, and because they "furnish no specific standards by which the facts of a particular case may be evaluated." Hughes, 264 N.C. at 505, 142 S.E.2d at 365. Further, in contrast to the case before our Court, Hughes did not involve the admission of expert testimony. Notably, however, the Hughes Court noted another case where "expert testimony as to the distance within which a certain truck could be stopped when going at a certain rate of speed was . . . admissible." Id. at 504, 142 S.E.2d at 364. For these reasons, we find that Hughes is not applicable to the case before us.
In addition, we note that N.C. Gen. Stat. § 20-138.1 governs the offense of impaired driving and provides that a person is guilty of the offense if he drives "(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, an alcohol concentration of 0.08 or more." N.C. Gen. Stat. § 20-138.1(a) (2003). Thus, "the acts of driving while under the influence of an impairing substance and driving with an alcohol concentration of [.08] are two separate, independent and distinct ways by which one can commit the single offense of driving while impaired." State v. Coker, 312 N.C. 432, 440, 323 S.E.2d 343, 349 (1984). According to the pattern jury instructions, if "the evidence supports submission of the case under both alternatives . . . instructions on both alternatives should be given." N.C.P.I.--Crim. 270.20. The trial court specifically stated it would "adhere to the pattern instructions" and neither party objected. Subsequently, the instruction on impaired driving in this case tracked the language of the pattern instruction.
Although the primary value of Glover's testimony was to establish that defendant's blood alcohol content was above the statutory limit at the time of the collision, the State was not required to establish that level to prove that defendant was driving while impaired (DWI). See State v. Sigmon, 74 N.C. App. 479, 482, 328 S.E.2d 843, 846 (1985) (the defendant's blood alcohol content of 0.06 did not establish presumption that
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