State v. Turbyfill, 243 N.C. App. 183 (Sept. 1, 2015)

(1) In this DWI case, the trial court did not abuse its discretion by allowing the State’s witness, a field technician in the Forensic Test of Alcohol Branch of the NC DHHS, who demonstrated specialized knowledge, experience, and training in blood alcohol physiology, pharmacology, and related research on retrograde extrapolation to be qualified and testify as an expert under amended Rule 702. (2) The trial court erred by allowing a law enforcement officer to testify as to the defendant’s blood alcohol level; however, based on the other evidence in the case the error did not rise to the level of plain error. The court noted that Rule 702(a1) provides:

A witness, qualified under subsection (a) … and with proper foundation, may give expert testimony solely on the issue of impairment and not on the issue of specific alcohol concentration level relating to the following:

(1) The results of a Horizontal Gaze Nystagmus (HGN) Test when the test is administered by a person who has successfully completed training in HGN.

At trial, the officer’s testimony violated Rule 702(a1) on the issue of the defendant’s specific alcohol concentration level as it related to the results of the HGN Test.