The Nose Doesn't Always Know: Extrapolation Based on Odor Ruled Unreliable

The Court of Appeals decided State v. Davis, 208 N.C. App. 26 (2010), last week, granting the defendant a new trial on second-degree murder, impaired driving and other charges arising from a fatal hit-and-run committed by the defendant after she had been drinking. While several aspects of the court’s opinion are noteworthy, this post focuses on the court’s determination that expert testimony as to the defendant’s blood alcohol concentration at the time of the crash was improper and prejudicial, where that testimony was founded solely on the fact that an officer who talked to the defendant more than ten hours after the accident smelled alcohol on her breath. A tragic sequence of events recounted in the court’s opinion resulted in several individuals standing over the double yellow line on a narrow bridge at 9:30 p.m. in Gaston County on August 7, 2008. The defendant drove upon the scene shortly after leaving a bar where she had been drinking. She struck four of the people with her car, seriously injuring three of them and killing the fourth. The defendant fled the scene, later admitting that she knew she had hit something, but that she did not stop because her license was revoked. Defendant learned after the accident that the police wanted to speak to her. She appeared at the Belmont police department at 8 a.m. next morning, where she met with Sergeant Spry. Spry testified that defendant’s clothes were in disarray and that he could smell alcohol on her breath. Defendant told [...]