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State v. Taylor8/17/2004
e arrest or the crash . . . [or] do a controlled experiment where you . . . measured it." Glover neither identified nor correlated any similarities between defendant and those out of court persons tested during the experiments that collectively led to the "average" elimination rate.
In Catoe, we recognized, "usual constraints of relevance continue to apply." 78 N.C. App. at 170, 336 S.E.2d at 693. Average data is hearsay, purely circumstantial, and irrelevant to defendant's alcohol elimination rate and blood alcohol concentration at the time of the accident. The State failed to prove the relevance of Glover's average data testimony. Glover had neither personal knowledge nor any foundation to testify that defendant's rate of eliminating alcohol from his body is 0.0165 per hour. See Howerton, __ N.C. at __, __ S.E.2d at __. Glover's opinion that defendant's blood alcohol concentration was 0.08 at the time of the accident was also without foundation. Defendant's breathalyzer test showed 0.05, well below the "0.08 or more" alcohol concentration required for conviction under the statute. N.C. Gen. Stat. § 20-138.1(a)(2) (2003).
Glover failed to show how another out of court individual's or the average of a group of other individuals' alcohol elimination rates were relevant to defendant's rate on the date of the accident. The trial court erred in admitting this testimony. See Howerton, __ N.C. at __, __ S.E.2d at __. Glover's use of a "conservative rate" does not cure the hearsay defect or establish relevancy. Glover also failed to lay a foundation by correlating the average rates to defendant's age, sex, height, weight, or any other physical characteristic to establish relevancy to be admitted into evidence. If Glover's testimony on average rates was the sole basis for the jury to return a guilty verdict on defendant's having a blood alcohol concentration of 0.08 or more, his conviction must be reversed.
II. Presentation of Issues to the Jury
The trial court instructed the jury pursuant to N.C. Gen. Stat. § 20-138.1(a) (2003) that it should convict defendant if it found beyond a reasonable doubt that he operated a vehicle either: "under the influence of an impairing substance or had consumed sufficient alcohol that . . . defendant had an alcohol concentration of 0.08 or more . . . ." The issues, however, were not submitted to the jury separately. Further, the jury's verdict does not reflect which prong of the statute they found defendant violated. As defendant failed to request separate instructions, object to the trial court's instructions, assign error to the instructions, or argue plain error, this issue is not reviewable. Despite a clear indication in the record that the jury returned an unanimous verdict of either, or both, a 0.08 blood alcohol concentration or an appreciable impairment, defendant failed to preserve this error and waived his right to appellate review of the jury instructions. See N.C.R. App. P. 10(b)(2) (2004). Where the evidence shows defendant may have consumed a combination of alcohol and another impairing substance, the better practice is for the trial court to submit the issues separately to the jury to determine whether defendant operated a vehicle: (1) "[w]hile under the influence of an impairing substance;" or (2) "[a]fter having consumed sufficient alcohol that [defendant] has . . . an alcohol concentration of 0.08 or more." N.C. Gen. Stat. § 20138.1(a)(1)-(2) (2003).
III. Conclusion
The trial court erred in admitting Glover's testimony of defendant's extrapolation rate and blood alcohol concentration based on irrelevant average data. Average data alone is hearsay, not relevant, and insufficient to prove defendant's alcohol extrapolat
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