State v. BabichÂ
252 N.C. App. 165
| N.C. Ct. App. | 2017Background
- At ~3:20 a.m. on May 16, 2014, officer observed Babich driving 80–91 mph, slow at a red light, then run the red light; she was stopped and later arrested for suspected DWI.
- Officer smelled alcohol, observed glazed/bloodshot eyes, stumbling, noncompliance, and poor performance on field sobriety tests.
- Breath test at 5:07–5:09 a.m. (about 1 hour 45 minutes after stop) recorded a 0.07 BAC; Babich had no opportunity to consume alcohol while in custody.
- State’s forensic chemist performed a retrograde extrapolation from the 0.07 result and opined Babich’s BAC at the time of the stop was 0.08–0.10.
- The expert’s extrapolation assumed Babich was in a post-absorptive (post-peak) state but conceded there were no case-specific facts (e.g., last drink, food) supporting that assumption.
- Trial court admitted the expert testimony; jury convicted Babich of impaired driving and related offenses; she appealed challenging admissibility under Rule 702/Daubert.
Issues
| Issue | State's Argument | Babich's Argument | Held |
|---|---|---|---|
| Admissibility of retrograde extrapolation under Rule 702/Daubert | Expert methodology is generally reliable and applicable to infer prior BAC from later measurement | Expert’s opinion relied on an unsupported assumption (post-absorptive state) and thus was not tied to case facts | Court: Expert testimony inadmissible — methodology did not “fit” the facts because the post-absorptive assumption lacked evidentiary support |
| Whether absence of facts about last drink renders extrapolation speculation | Assumption is reasonable and extrapolation is still probative | Without any evidence (admissions, witnesses, or circumstantial timeline), assumption is pure conjecture | Court: Assumptions must have at least some evidentiary foundation; ungrounded assumption fails Daubert fit |
| Effect of erroneous admission on conviction (harmless error) | Conviction supported by statutory alternative (BAC over .08) and appreciable impairment evidence | Erroneous testimony could have influenced jury verdict on BAC-based theory | Court: Error was harmless — strong independent evidence of appreciable impairment; no reasonable possibility of different outcome |
| Scope for future retrograde testimony | Retrograde extrapolation can be admissible when assumptions are grounded in case-specific facts | N/A | Court: Valid when tied to facts (e.g., last drink, officer/witness observations, circumstantial timeline); otherwise excluded |
Key Cases Cited
- State v. McGrady, 368 N.C. 880 (N.C. 2016) (Rule 702 incorporates Daubert three-prong reliability test)
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (U.S. 1993) (trial court must ensure expert methodology fits the facts of the case)
- State v. Downey, 195 P.3d 1244 (N.M. 2008) (retrograde extrapolation inadmissible where post-peak assumption lacked evidentiary support)
- State v. Turbyfill, 776 S.E.2d 249 (N.C. Ct. App. 2015) (blood alcohol extrapolation can be scientifically valid when properly supported)
- State v. Taylor, 600 S.E.2d 483 (N.C. Ct. App. 2004) (error in admitting extrapolation harmless where independent evidence established appreciable impairment)