State v. Watson, 2022-NCCOA-687, ___ N.C. App. ___ (Oct. 18, 2022)

In this Robeson County case, defendant appealed his conviction for driving while impaired, arguing the trial court erred by admitting a toxicology report without authentication and allowing the arresting officer to testify to defendant’s specific blood alcohol concentration. The Court of Appeals found no prejudicial error by the trial court.

In September of 2018, defendant was stopped by an officer due to a partially obstructed license plate; after stopping defendant, the officer noticed glassy eyes and slurred speech, leading to a horizontal gaze and nystagmus (“HGN”) test. Defendant performed poorly on the test, and a later toxicology blood test found that defendant’s blood alcohol concentration was 0.27. At trial, the arresting officer testified about the results of the HGN test, saying “[t]here’s a probability that he’s going to be a .08 or higher, 80% according to the test that was done.” Slip Op. at 3. Also during the trial, the SBI agent responsible for preparing the report on defendant’s toxicology test was not available to testify, so another agent performed an administrative and technical review of the report and was permitted to testify as an expert about the results. The report was admitted despite defendant’s objection.

Reviewing defendant’s appeal, the court first noted that Rule 703 of the North Carolina Rules of Evidence does not require the testifying expert to be the person who performed the test, explaining “[a]n expert may properly base his or her opinion on tests performed by another person, if the tests are of the type reasonably relied upon by experts in the field.” Id. at 5, quoting State v. Fair, 354 N.C. 131, 162 (2001). Here the report was admitted as the basis of the testifying expert’s opinion, not as substantive evidence, within the scope of applicable precedent around Rule 703. The court also noted that defendant had ample opportunity to cross-examine the expert on the basis of her opinion and her credibility in front of the jury, avoiding any confrontation clause issues.

The court found that admitting the arresting officer’s testimony regarding defendant’s specific blood alcohol level after conducting an HGN test was error, but harmless error. There are two bases under G.S. § 20-138.1 to convict a defendant for impaired driving; subsection (a)(1) and (a)(2) are distinct and independent grounds for conviction of the same offense. Id. at 10, citing State v. Perry, 254 N.C. App. 202 (2017). The court noted that overwhelming evidence of both prongs was present in the record, and specifically the second prong, driving with an alcohol concentration of 0.08 or more, was supported by expert testimony unrelated to the officer’s testimony. Finding no reasonable possibility the jury could have reached a different conclusion, the court upheld the verdict.