State v. Hayes, ___ N.C. App. ___, 808 S.E.2d 446 (Nov. 21, 2017)

Following its decision in State v. Babich, ___ N.C. App. ___, 797 S.E.2d 359 (2017), in this DWI case the court held that the State’s expert testimony regarding retrograde extrapolation was inadmissible under Daubert and Rule 702. The expert used the defendant’s .06 BAC 1 hour and 35 minutes after the traffic stop to determine that the defendant had a BAC of .08 at the time of the stop. To reach this conclusion the expert assumed that the defendant was in a post-absorptive state at the time of the stop, meaning that alcohol was in the process of being eliminated from his bloodstream and that his BAC was in decline. The expert admitted that while there were no facts to support this assumption, it was required so that he could complete his retrograde extrapolation analysis. The State conceded error under Babich and argued only that the error was not prejudicial. The court found otherwise and reversed and remanded for a new trial.