North Carolina law defines driving while impaired as either driving with a blood alcohol concentration of 0.08 percent or higher or driving while under the influence of an impairing substance. It often takes several hours for a defendant to be brought to a police station to have his blood alcohol concentration measured. A recent ruling by the N.C. Court of Appeals allows expert testimony on how quickly the average person eliminates alcohol from their system, potentially allowing for convictions even for those whose blood alcohol reading was well below 0.08.
At about 1 p.m. March 15, 2001, Darryl Taylor’s van crossed the centerline of Highway 66 in Rural Hall and struck an oncoming pickup truck. The pickup’s driver described Taylor as “slumped over like he was asleep” just before the accident. Highway Patrol Trooper M. W. Davis was at the scene within about 10 minutes. He described Taylor as having a strong odor of alcohol, swaying noticeable, and having difficulty writing within the lines in making out a voluntary statement. Taylor admitted to having fallen asleep. At 3:18 p.m., a Breathalyzer test performed at the Forsyth County Jail showed Taylor’s alcohol concentration to be 0.05.
At trial, the state called Paul Glover, a research scientist and training specialist with the forensic tests for alcohol branch of the N.C. Department of Health and Human Services, to establish that Taylor’s blood alcohol content had been 0.08 at the time of the collision. Glover reached his conclusion by taking Taylor’s 0.05 reading and working backward 2.1 hours using an average alcohol elimination rate of 0.0165 per hour.
Taylor’s blood alcohol content was measured only once, making it impossible to determine how quickly his body eliminated alcohol. The defense objected to the admission of average data. Taylor was convicted and subsequently appealed.
The Court of Appeals upheld Taylor’s conviction. Writing for the court, Judge Linda McGee found that a case in 1986 was similar and allowed a judge to admit the testimony. Even if that was not correct, the trial court did not err in admitting the testimony.
Previous case law “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,” she said. “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.
Jurors weigh evidence.
Judge John Tyson, however, found the Glover’s testimony not be relevant. “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,” Tyson wrote. “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.”
Tyson noted that Glover had admitted that numerous variables influenced an individual’s alcohol elimination rate, including gender, height; weight, age; elapsed time since eating; “recent consumption” of alcohol; and type of alcohol consumed. Glover also testified that an individual’s elimination rate “could be different within a given individual on different days.”
Tyson did vote in favor of upholding Taylor’s conviction, as there was ample evidence to satisfy the driving while under the influence of an impairing substance prong of the DWI statue.
The case is Sate v. Taylor (COA03-334).