I wrote here about the court of appeals’ decision in State v. Davis, __ N.C. App. __, 702 S.E.2d 507 (2010), 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. Davis determined 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 odor of alcohol on defendant’s breath more than ten hours after the accident. Some wondered whether Davis portended the court of appeals’ inclination to reconsider the propriety of expert testimony based upon retrograde extrapolation, a methodology used to estimate a person’s alcohol concentration at some earlier point in time based upon a later reported alcohol concentration. After all, courts in other states have viewed such testimony with skepticism. The Texas Court of Criminal Appeals in Mata v. Texas, 46 S.W.3d 902 (Tex. Crim. App. 2001) (en banc), summarized its view of the limitations of retrograde extrapolation as follows: Initially, we recognize that even those who believe retrograde extrapolation is a reliable technique have utilized it only if certain factors are known, such as the length of the drinking spree, the time of the last drink, and the person's weight. . . . In addition, there appears to be general disagreement on some of the fundamental aspects of the theory, such as the accuracy of Widmark's formulas . . . whether a standard [...]
Faculty Coordinators
