NC Appellate Court Approves Extrapolation Rate for Blood Alcohol Levels

At 1 p.m., a North Carolina driver is proceeding south in a northbound lane and appears to be slumped over his steering wheel, as though asleep. His vehicle collides with another. Police are summoned. They detect a strong odor of alcohol, and perform a field sobriety test, on which the driver fares poorly. He is arrested for DWI and taken to the station. At 3:18 p.m., he is given a breathalyzer test, which shows a blood alcohol level of 0.05%. The legal limit in North Carolina is 0.08%. Can the driver breathe even a modest sigh of qualified relief?

No, he cannot. North Carolina (which follows a version of Daubert) already permitted extrapolation from the driver's blood alcohol level at the time of the breathalyzer test to the probable level at the time he was still driving his vehicle. Now the North Carolina Court of Appeals has held that a standard average blood alcohol reduction rate of 0.0165/hour may reliably be used. The Winston-Salem Journal has the story (which inaccurately reports, however, that the court's decision on this point was unanimous). For the opinion itself, see State v. Taylor, No. COA03-334 (N.C. App. Aug. 17, 2004).