Proving that a driver was impaired by alcohol is not all that difficult, particularly when the driver submits to a breath test and the result is .08 or more. Proving that a driver was impaired by drugs or by a combination of alcohol and drugs is considerably more challenging. But an opinion released yesterday by the court of appeals demonstrates one way in which it can be done, even without a confirmatory chemical test.
Facts. The defendant in Osteen was driving a moped at 2 a.m. when she was pulled over by a sheriff’s deputy who noticed that the moped had no taillight and who saw it weave several times within its lane. When the defendant lifted the visor on her helmet, the deputy smelled alcohol. The defendant said she had wine with dinner. The deputy then asked her if she owned the moped. Her response? “’12 midnight.’” Not surprisingly, the deputy suspected that she might be impaired. He contacted the State Highway Patrol.
Trooper Michael Hinnenkamp responded. The defendant told Trooper Hinnenkamp that she drank three glasses of wine and took two prescription medications—Clonopin and Percocet—before driving. Hinnenkamp observed that the defendant was having trouble standing upright and that her speech was slurred and, at times, not understandable. He said she had a blank stare and appeared confused and dazed. He charged her with driving while impaired and arrested her. The defendant submitted to a breath test. The result? A 0.07.
Lay Opinion Testimony. At trial, Trooper Hinnenkamp testified that he had observed many people at varying levels of impairment, including people who had blood-alcohol concentrations of 0.07. He opined that the alcohol concentration result from the breath test did not “’coincide with the amount that [the defendant] was impaired.’” He explained: “'[T]hat made me more confident that the drugs played a big role when combined with that alcohol to impair her.’”
Expert Opinion Testimony. The State proffered Sergeant Kenneth Hipps from the Henderson Police Department, a certified drug recognition expert, as an expert witness in drug recognition. Sergeant Hipps testified that he attended classes about categories of drugs and how drugs from different categories affect the body. Hipps explained that Percocet is a narcotic analgesic. Indicators that a person is impaired by a narcotic analgesic include depressed reflexes, drowsiness, droopy eyes, slurred speech, and unsteadiness. Clonipin, he testified, is a CNS depressant. Drugs in that category cause disorientation, droopy eyes, drowsiness, unsteadiness, slurred speech, and loss of coordination. Hipps testified that a person who used both drugs at the same time would be “really unsteady,” and that if someone also consumed alcohol, she would be impaired and it would be “very noticeable.”
Argument on Appeal. The defendant argued on appeal that Trooper Hinnenkamp should not have been permitted to testify about the role the drugs she consumed played in her impairment. She argued that he was no more qualified than the jury to form this opinion and asserted that only an expert could opine about the interactions between drugs and alcohol. A plain reading of Rule 701 and Rule 702 of the Rules of Evidence would seem to support her assertion. Rule 701 allows a lay witness to testify to opinions based on his or her perception that are helpful to the finder of fact. Opinions based on specialized knowledge derived from experience or training, in contrast, are defined as expert opinions within the meaning of Rule 702. Nevertheless, the North Carolina reporters are replete with opinions approving the admission of lay opinion testimony that is based on an officer’s experience and training.
The defendant also argued that Sergeant Hipps’ testimony lacked sufficient facts or data to meet the requirements of Rule 702. She specifically alleged that his opinion was too vague because it was based on an unspecified amount of drugs. (At trial, the defendant had objected to Hipps’ qualification as an expert, but did not object to the statements that she subsequently challenged on appeal.)
Holding. The court of appeals rejected both arguments. As to the lay opinion testimony, the court found the case similar to State v. Lindley, 286 N.C. 255 (1974), in which the trial court properly allowed a police officer with five years of experience to testify to his opinion that the defendant was under the influence of a drug. The Lindley court deemed it especially significant that the officer had ruled out other potential explanations for the defendant’s conduct and demeanor. The court in Osteen noted that Trooper Hinnenkamp based his conclusions on his experience and observations and that he ruled out the possibility of the defendant being impaired only by alcohol by comparing her behavior to the breath test results. Thus, the court held that the trial court did not abuse its discretion in admitting Trooper Hinnenkamp’s testimony.
The court of appeals also concluded that the trial court did not err in admitting Sergeant Hipps’ expert testimony given its “’wide latitude of discretion’” and the lack of an objection by the defendant. The court explained that Sergeant Hipps assisted the jury in drawing inferences by explaining the potential physical responses a person would have to the prescription drugs the defendant admitted to ingesting and by explaining the potential consequences of combining drugs with alcohol.
One final note. The defendant in Osteen was sentenced to 36 months imprisonment because the misdemeanor impaired driving offense she committed was sentenced at Level A1. Her attorney asked for permission to inform the jury of the maximum sentence she could receive if found guilty. The court rejected the request, reasoning that the defendant would be asking for “pity or sympathy” by pointing out the maximum sentence and that proof of the aggravating factors required to impose such a sentence had not been introduced at trial. The court of appeals relied on State v. Lopez, 363 N.C. 535 (2009)–a structured sentencing case in which the prosecutor provided a misleading description of the sentence the defendant faced—in determining that the trial court did not err by denying defendant’s request.