2024 N.H. 42, State v. Keller

and orally), for the defendant. brief, and Kirkland & Ellis LLP, of Chicago, Illinois (Helen E. Witt on the brief Pamela E. Phelan, senior assistant appellate defender, of Concord, on the

the State. general (Sam M. Gonyea, assistant attorney general, on the brief and orally), for John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Citation: State v. Keller, 2024 N.H. 42 Case No. 2023 - 0138 Belknap

THE SUPREME COURT OF NEW HAMPSHIRE

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

four hours prior to the accident, and that he fell asleep or pass ed out while admitted that he had used h eroin, fentanyl, or a combination thereof at least significant injury was the broken right humerus.” Although t he defendant sustained “a few small lacerations to the top of his head, but his only in a sling. The defendant told the officer that, as a result of the crash, he had When the officer arrived at the defendant’s home, she noticed that his arm was agreed, and the officer subsequently met with him at the defendant’s residence. defendant and asked him to speak to her about the incident. The defendant [¶4] Several days after the crash, Officer Goodheart contacted the

amphetamine in his system. fentanyl, norfentanyl, fentanyl, methadone, methamphetamine, and that.” The defendant consented to a blood draw, which revealed acetyl he had been involved in a car crash and had some serious injuries regarding a methadone clinic. The officer recalled that the defendant also told hi m “that evening, approximately five hours before the crash, and that he was in volved in odor of alcohol. The defendant told McCormack that he had used heroin that signs of impairment, such as bloodshot or watery eyes, slurred speech, or an Goodheart, investigated the crash scene. McCormack did not observe any approximately forty minutes after the crash while another officer, Officer [¶3] Officer McCormack spoke with the defendant at the hospital

police and reported the crash. residence, and his girlfriend took him to the hospital. His girlfriend called the 1,000 feet from his house. A fter the crash, the defendant returned to his unoccupied car and the side of a house on the opposite side of the road about car over the center line into the oncoming lane of traffic, and crashed into an a.m. on September 1, p. 2 2018, the defendant fell asleep while driving, drove his [¶2] The jury could have found the following facts. Shortly after 1:00

and remand for proceedings consistent with this opinion. serious bodily injury. Accordingly, we reverse the defendant’s A DWI conviction of the case. We also conclude that the evidence was insufficient to prove requirements for admission, and that such testimony prejudice d the outcome because the meth odology that she used was not sufficiently reliable to meet the W e conclude that the trial court erred in admitting Scarneo’s testimony evidence was insufficient to prove the required element of serious bodily injury. not sufficiently reliable to meet the requirements for admission; and ( p. 2 2) th e (2024). The defendant argues that: (1) the methodology that Scarneo used was causing a collision resulting in s erious b odily i njury. See RSA 26 5 - A: p. 3 3, I(b) conviction on one count of a ggravated d riving w hile i ntoxicated (A DWI) for decision from Superior Court (Atto r ri, J.) denying his motion to dismiss his Scarneo, the State’s expert on “human performance forensic toxicology,” and a 3

opinion). courts shall consider when determining the admissibility of an expert’s error rate, and is widely accepted. See RSA 516:29 - a, II (a) (setting forth factors formulate her opinion can be tested, has been peer reviewed, has a potential opinion. Scarneo also testified as to whether the methodology that she uses to Scarneo ’s work culminates in a report that details her findings and ultimate literature, w hile drawing upon her own education, training, and experience. information about the drugs found in the person’s body, and any relevant blood collection, discovery materials related to the individual and the incident, variety of information, including the blood test results, information about the person’ s blood. To formulate an opinion, Scarneo testified that she reviews a signs and symptoms of impairment consistent with the drugs found in the drugs in a person’ s system, and opined as to whether the person exhibited blood tests, interpreted the results of blood tests indicating the presence of Scarneo testified that while working at the state laboratory, she performed she worked in the s tate forensic toxicology laboratory as a forensic toxicologist. own forensic toxicology consulting business for about one year, prior to which on the defendant’s motion. Scarneo testified that she had been running her [¶7] The court held a two - day hearing in Septe mber and December 2021

The State objected. Hampshire Rule of E vidence 702. See State v. Langill, 157 N.H. 77, 85 (2008). 516:29 - a, II (2021), and, therefore, her testimony was inadmissible under New Pharmaceuticals, Inc., 509 U.S. 579, 592 - 94 (199 p. 3 3), and codified in RSA because it did not satisfy the four factors set forth in Daubert v. Merrell Dow T he defendant argued, inter alia, that Scarneo’s methodology was unreliable arguing that her “proposed testimony is not the product of reliable methods.” [¶6] The defendant moved in limine to preclude Scarneo’s testimony,

their vehicle while driving.” ability to stay alert or awake, concentrate on the road and maintain control of cocaine use” and that “this combination of effects would impair a person’s fentanyl combined with the withdrawal effects from methamphetamine and impairment that are consistent with the acute effects of acetyl fentanyl and anticipated opining that the defendant “demonstrated signs and sympto ms of and concomitantly, as well as their effects on driving.” Scarneo also associated with the drugs found in [the defendant’s] blood when used alone anticipated testifying about the “the pharmacological and toxicological effects forensic toxicology. According to her expert witness disclosure, Scarneo I(b). The State identified Scarneo as an expert witness in human performance [¶5] The defendant was charged with A DWI in violation of RSA 265 - A: p. 3 3,

maintained that his substance mis use did not contribute to the crash. behind the wheel when he left his home at approximately 1:00 a.m., he p. 4 4

instructions on the lesser - included offense of driving under the influence of insufficient evidence of serious bodily injury, it provide the jury with defendant also requested that, i f the court denied the motion to dismiss for Scarneo’s methodology and renewed his motion to exclude her testimony. The insufficient evidence of impairment, the defendant again raised issues with impairment and serious bodily injury. As part of his motion to dismiss for arguing, as relevant to this appeal, that there was insufficient evidence of [¶12] At the close of the State’s case, the defendant moved to dismiss,

in his blood. and symptoms of impairment consistent with the ingestion of the drugs found based upon this review, it was her opinion that the defendant exhibited signs discussed the results of the defendant’s blood tests. Scarneo testified that, provided an overview of each drug found in the defendant’s blood, and Scarneo specified what information she reviewed to formulate her opinion, determine whether someone was impaired. Regarding the defendant’s case, the methodology that she use d when interpreting laboratory results to [¶11] Similar to her testimony at the motion hearing, Scarneo described

expert, the defense renewed its objection regarding Scarneo’s testimony. “human performance forensic toxicology.” When the court qualified her as an crash. The State also called Scarneo, who was qualified as an expert in upon the test results alone, the defendant was impaired at the time of the defendant’s blood sample — none of whom could determine whether, based testif ied about the results of the blood tests that they conducted on the witnesses included McCormack and Goodheart, as well as three experts who [¶10] In November 2022, the court held a two - day jury trial. The State ’s

Daubert. Scarneo’s methodology satisfied the factors laid out in RSA 516:29 - a and forth in Kelley and did not conduct its o wn analysis as to whether, in this case, found Scarneo’s testimony reliable. The court incorporated the reasoning set “involved identical challenges to Ms. Scarneo’s testimony,” and the Kelley court Merrimack Cnty. Jan. p. 4 4, 2011), “particularly persuasive” because Kelley court found State v. Kelley, No. 09 - CR - 1051, at 3 - 7 (N.H. Super. Ct., Scarneo’s t estimony reliable under RSA 516:29 - a (2021) and Daubert. The [¶9] In January 2022, t he court denied the defendant’s motion, finding

of the defendant’ s use of that drug. drug is known to cause, the potential for impairment of drivi ng, and the history identified in the defendant’s system, which included the adverse effects each defendant on the night of the crash. She also provided a synopsis of each drug medical records, and the results from the blood sample taken from the Goodheart, a witness statement from the defendant’s girlfriend, the defendant’s three different police reports, including reports written by McCormack and [¶8] Regarding the defendant’s case, Scarneo testified that she reviewed p. 5 5

injury to the defendant, specifically “a broken right hum erus.” indictment in this case alleged that the collision resulted in serious bodily impairment to the health or of the function of any part of the body.” T he to the body which causes severe, permanent or protracted loss of or [¶1 p. 5 5] RSA 625:11, V I (2016) defines “s erious bodily injury” as “any harm

RSA 26 p. 5 5 - A:3 (2024) (emphasis added).

another;. . . . serious bodily injury, as defined in RSA 62 p. 5 5:11, VI, to the person or (b) Causes a motor vehicle, boating, or OHRV collision resulting in . . . person ’ s ability to drive and, at the time alleged: chemical substance or substances, natural or synthetic, which impair a prescription drug or drugs, over - the - counter drug or drugs, or any other or any combination of intoxicating liquor and controlled drug or drugs, substance, natural or synthetic, which impairs a person ’ s ability to drive drug, prescription drug, over - the - counter drug, or any other chemical I. While under the influence of intoxicating liquor or any controlled

person “drives or attempts to drive a vehicle upon any way”: [¶14] As relevant to this case, a person is guilty of A DWI when th at

evidentiary item in the context of all the evidence, and not in isolation. Id. drawn therefrom in the light most favorable to the State. Id. We examine each reasonable doubt, c onsidering all the evidence and all reasonable inferences trier of fact could have found the essential elements of the crime beyond a any evidence presented by the defendant, to determine whether any rational considering such a challenge, we objectively review the entire record, including of review is de novo. State v. Folley, 172 N.H. 760, 766 (2020). When sufficiency of the evidence raises a claim of legal error; therefore, our standard evidence of a serious bodily injury. See RSA 26 p. 5 5 - A:3, I(b). A challenge to the erred when it denied his motion to dismiss the A DWI charge for insufficient [¶13] We first address the defendant’s argument that the trial court

A. Sufficiency of the Evidence

appeal followed. lesser - included offense. The jury found the defendant guilty of A DWI. This defendant’s motion to dismiss on both grounds, but instructed the jury on the drugs or alcohol (DW I). See RSA 2 p. 6 6 p. 5 5 - A:2, I(a) (2024). The court denied the 6

(2002). Langill, 157 N.H. at 85; see also Daubert, 50 9 U.S. at 593 - 94. applied in Baker Valley Lumber v. Ingersoll - Rand, 148 N.H. p. 6 609, 614, 616 516:29 - a. Id. S ection II of RSA 516:29 - a codifies the four Daubert factors we To determine the reliability of expert testimony, t he trial court must apply RSA admissible, however, expert testimony must cross a threshold of reliability. Id. admit expert testimony. Moscicki v. Leno, 173 N.H. 121, 124 (2020). To be [¶19] New Hampshire Rule of Evidence 702 authorizes the trial court to

the product of a reliable methodology.” We agree with the defendant. the four criteria set forth in RSA 51 p. 6 6:29 - a, II(a) and, therefore, her “opinion was admitting Scarneo’s testimony because her methodology satisfied three out of RSA 516:29 - a, II(a). The State disagrees, arguing that the court did not err in drug impairment . . . was inherently unreliable” in violation of Daubert and opinion that the defendant “exhibited ‘signs and symptoms’ ‘consistent’ with defendant contends that the methodology that Scarneo used to formulate her erred in denying his motion in limine and admitting Scarneo’s testimony. The [¶18] W e next address the defendant’s argument that the trial court

B. Admissibility of Expert Witness’s Testimony

dismiss the A DWI charge, and we reverse the defendant’s conviction. State. Accordingly, the trial court erred in denying the defendant’s motion to all reasonable inferences drawn therefrom in the light most favorable to the injury beyond a reasonable doubt, even when considering all the evidence and that a rational trier of fact could not have found the element of serious bodily permanent or protracted.” Id. Bas ed upon the record before us, we conclude accident, the defendant’s arm was in a sling — not that the injury was “severe, sling established only that, at a single point in time several days after the function. The fact that Goodheart noticed that the defendant’s arm was in a the broken arm would or did impact the defendant’s health or ability to to wh at type of break the defendant suffered, the severity of the break, or how the body.” RSA p. 6 625:11, VI. The jury was not presented with an y evidence as protracted loss of or impairment to the health or of the function of any part of and of itself, prove that the defendant sustained “severe, permanent or [¶17] The fact that the defendant sustained a broken arm does not, in

was the broken right humerus.” “a few small lacerations to the top of his head, but his only significant injury a sling. Goodheart also testified that the defendant told her that he sustained home several days after the crash, she noticed that the defendant’ s arm was in regarding that.” Goodheart testified that when she went to the defendant’s officer “that he had been involved in a car crash and had some serious injuries defendant at the hospital on the night of the crash, the defendant told the a serious bodily injury. McCormack testified that when he spoke with the insufficient to prove, beyond a reasonable doubt, that the defendant sustained [¶1 p. 6 6] After reviewing the record, we conclude that the evidence is p. 7 7

supported by theories or techniques that. . . [h]ave been or can be tested.” basis for proffered expert testimony” is whether the “expert’s opinions were [¶23] The first factor that a court must consider when “evaluating the

the evidence before it.” Szewczyk, 1 p. 7 76 N.H. at 156 (quotations omitted). person could have reached the same decision as the trial court on the basis of we would have found different ly, but only to determine whet her a reasonable (2023). When ap plying this standard, “[o]ur task is not to determine whether case. Id. at 250; see also Szewczy k v. Continental Paving, 176 N.H. 148, 156 demonstrates that it was untenable or unreasonable to the prejudice of his (2016). We will reverse the trial court’s ruling only if the defendant within the sound discretion of the trial court. State v. Gay, 169 N.H. 232, 249 [¶22] The decision to admit expert testimony rests, in the first instance,

complexities or satisfactorily weigh its inadequacies. Id. than excluded from jurors’ scrutiny for fear that they will not grasp its upon reliable grounds, it should be tested by the adversary process, rather flawless evidence. Id. Thus, as long as an expert’s scientific testimony rests ensure that a fact - finder is presented with reliable and relevant evidence, not omitted). Indeed, the overall purpose of Rule p. 7 702 and RSA 516:29 - a is to liberally in favor of the admission of expert testimony.” Id. at 125 (quotation burden is not especially onerous because “Rule 702 has been interpreted proponent of expert testimony bears the burden of proving its admissibility, the testimony.” Moscicki, 173 N.H. at 124 - 25 (quotation omitted). Although the finder to determine the weight and credibility to be afforded an expert’s gatekeeper, ensuring a methodology’s reliability before permitting the fact - [¶21] When applying these factors, the trial court “functions only as a

specific to the proffered testimony. (b) In making its findings, the court may consider other factors (4) Are generally accepted in the appropriate scientific literature. (3) Have a known or potential rate of error; and (2) Have been subjected to peer review and publication; (1) Have been or can be tested; expert’s opinions were supported by theories or techniques that: court shall consider, if appropriate to the circumstances, whether the II. (a) In evaluating the basis for the proffered expert testimony, the facts of the case. (c) T he witness has applied the principle s and method s reliably to the and (b) Such testimony is the product of reliable principles and methods; (a) Such testimony is based up on sufficient facts or data; court finds: I. A witness shall not be allowed to offer expert testimony unless the

[¶20] RSA 516:29 - a provides: p. 8 8

as an expert “may candidly acknowledge any inconsistencies or potential [¶26] Such a methodology is essentially immune to cross - examination,

examine the reliability of the methodology itself. rationale merely assesses the outcome in the individual case and does not the same materials and then “come up with their independent opinion,” that testified that her methodology could be tested by having someone else review drawing on her experiences and personal knowledge”). Although S carneo subjective” and that the “final interpretive step occurs in [the expert’s] mind, “interpretation and evaluation of the available information is somewhat mind.” See Cressey, 137 N.H. at 410 (expressing concern that the expert’s counsel that the “interpretation and formation of [her] opinion happens in [her] conducted regarding the test’s accuracy). Rather, Scarneo agreed with defense sobriety test can and has been tested because several studies had been Sta te v. Dahood, 14 p. 8 8 N.H. 723, 730 - 31 (2002) (concluding that a specific field utilized a series of standardized assessments, all of which had b een tested); (concluding that the expert’s methodology w as reliable, in part because it standardized norm”); cf. Baxter v. Temple, 157 N.H. 280, 299 (2008) not produce “quantifiable results that could then be compared to a opinion did not utilize standardized tests, and the results of the evaluations did because the evaluative techniques that the expert used to formulate her (1993) (conclud ing that the expert’s methodology was not reliable, in part of standardized assessment tool. See State v. Cressey, 137 N.H. 402, 408 - 09 [¶25] When reviewing this information, Scarneo does not utilize any type

T he information she reviews varies in any given case. determine whether an individual exhibited signs and symptoms of impairment. experience, training, and education, evaluates this information in order to test results, and blood sample collection information, and then, relying on her that she reviews a variety of information, including discovery materials, blood See RSA 516:29 - a, II(a)(1). Scarneo’s methodology, as best we can discern, is evidence in the record demonstrates that Scarneo’s methodology can be tested. that her methodology had not been tested, and we are not persuaded that the [¶24] At the hearing on the motion in limine, Scarneo expressly stated

toxicology and explain how she reaches her final conclusion. has been tested, but, rather, go to her experience and education in forensic establish the reliability of the specific methodology Scarneo employs or that it assume that these facts are supported by the record in this case, they do not “extensive knowledge and experience in forensic toxicology.” Even if we results and statements by arresting officers and witnesses a s well as her own court also reasoned that in formulating her opinion, Scarneo relie d on test toxicology as it applies to drivers under the influence of drugs.” The Kelley factor because Scarneo ha d “attended seminars and written articles on Kelley, which explained that Scarneo’s methodology satisfied the first Daubert RSA 516:2 p. 9 9 - a, II(a). The trial cour t incorporated the reasoning set forth in 9

impairment for prescription drugs. The court also recognized that a laboratory results, but that unlike alcohol, there is no per se rule of The trial court in Kelley explained that there are known error rates for the techniques . . . [h]ave a known or potential rate of error.” RSA 516:2 p. 9 9 - a, II(a). [¶29] Third, a court must consider whether the expert’s “theories or

and engage in this type of interpretive work. she was the only one in the s tate laboratory who could apply her methodology testified that, although her colleagues reviewed the reports that she generated, test has been subjected to peer review and publication). Additionally, Scarneo examines and critiques a certain field sobriety test in determining whether the 3 1 (discussing the studies, reports, and “‘extensive scientific literature’” that determining whether her methodology is reliable. Cf. Da hood, 148 N.H. at 7 30 reviewed the methodology that she uses, which could have assist ed us in her expert witness disclosure, any specific study, work, or peer that has review. Moreover, S carneo did not identify, either during her testimony or in whether the specific methodology she employs has been subject ed to peer opinion on impairment. Such testimony, however, do es not directly address consider when conducting this type of interpret ive work in order to render an and that certain studies and publications have recommended information to accepted and published in peer - review journals, as well as scientific books,” We recognize that Scarneo testified that she uses a methodology “that has been that Scarneo uses has been subject ed to peer review and publication is lacking. [¶28] In reviewing the record in this case, evidence that the methodology

necessarily mean that the record in this case supported the same finding. supported a finding that S carneo’s work had been peer reviewed does not been subject ed to peer review. Moreover, the fact that the record in Kelley evidence, however, does not demonstrate whether Scarneo’s methodology has “study of the effects of drugs on human behavior is not a new concept.” T his alcohol and drugs on human performance and behavior, and because the ha d attended conferences and continuing education classes on the effects of finding that Scarneo’s methods ha d been subject ed to peer review because she 516:2 p. 9 9 - a, II(a) (2). The trial court in Kelley found that the record supported a expert’s methodology has “been subjected to peer review and publication.” RSA [¶27] The second factor that a court must consider is whether the

impairment. confirming, that the officer was looking exclusively for signs of alcohol of impairment because she did not know the office r and she assumed, without disregarded McCormack’s assessment that the defendant did not exhibit signs occurred during Scarneo’s cross - examination when she admitted that she available factors and her expertise in the field.” Id. Indeed, such a scenario indicator and that her conclusions still hold true in light of all the other dismiss the critique by saying that her evaluation relies on no one symptom or shortcomings in the individual pieces of evidence she presents, but can easily p. 10 10

prejudiced the defendant’s case. See Gay, 16 9 N.H. at 250 (“We reverse [a trial [¶33] Given this conclusion, w e next consider whether this error

impaired his driving. consistent with” the use of drugs found in his system, which could have defendant “demonstrated signs and symptoms of impairment that are methodology is reliable and, therefor e, erred in allowing her to opine that the the trial court unsustainably exercised its discretion in ruling that Scarneo’s interpretive work. Accordingly, f or the reasons stated above, we conclude that test that someone must pass to be qualified to conduct Scarneo’s type of someone to use her method, and no certification that someone must receive or methodology, no generally accepted level of training or experience to qualify that there are no generally accepted standards governing her interpretive laboratory capable of applying this methodology. Moreover, Scarneo testified working on the defendant’s case, she was the only person at the s tate would employ the same methodology. However, at the time that Scarneo was employs, and that most forensic toxicologists working in a forensic laboratory that there is “nothing new, novel, or unique” about the methodology she accepted methodology among the scientific community.” She also explained [¶32] Here, S carneo testified that her methodology is “a generally

prove that Scarneo’s methodology is itself generally accepted. it is generally accepted that drugs have known side effects, however, does not acceptance with the [scientific] community.” (Quotation omitted.) The fact that because “the known side effects of drugs have such widespread and general RSA 516:29 - a, II(a). The Kelley court found that th is factor was satisfied techniques . . . [a] re generally accepted in the appropriate scientific literature.” [¶31] Finally, a court must consider whether the expert’s “theories or

product of reliable principles and methods,” RSA 516:29 - a, I(b). N.H. at 616, the State must still prove that the expert’s testimony is “the it fails to meet one or more of [the Daubert] factors,” Baker Valley Lumber, 148 (Quoting RSA 516:29 - a, II(a).) Although “a methodology may be reliable even if to the circumstances’ of this case given the nature of Scarneo’s analysis.” known or potential error rate,” but argues that this factor was “not ‘ appropriate [¶30] T he State recognizes that “Scarneo’s methodology did not have a

conclusion was incorrect. that while working at the s tate laboratory, she was never told that her ultimate interval, range of uncertainty, or error rate for the underlying methodology, and individual exhibits sign s and symptoms of impairment, there is no confidence Scarneo testified that, regarding her ultimate opinion as to whether an is an error rate for the specific methodology that Scarneo applied. In fact, consideration s that the Kelley court identified, they do not establish that there Daubert factors. Although the record in this case includes these same methodology can still be reliable even if it fails to meet one or more of the p. 11 11

serious bodily injury and rule that testimony of the State’s expert was that if we reverse the ADWI conviction on the ground of insufficient evidence of opinion. In a supplemental brief filed with this court, the defendant agreed in denying the defendant’s motion in limine and admitting Scarneo’s ultimate the defendant’s conviction. Additionally, w e conclude that the trial court erred denying the defendant’s motion to dismiss the A DWI charge, and we reverse [¶35] For the for e going reasons, we conclude that the trial court erred in

Scarneo’s ultimate opinion was prejudicial to the defendant’s case. Cressey, 137 N.H. at 405. Accordingly, we conclude that admission of the air of authority that commonly accompanies an expert’s testimony.” attach extra importance to an expert’s opinion simply because it is given with to a determination of the guilt or innocence of the defendant”). “[A] jury may affected the verdict because it was “lengthy, comprehensive, and directly linked 265 - A:3, I(b); Cressey, 137 N.H. at 4 p. 11 11 (holding that the expert’s opinion A DWI charge and the lesser - included DWI offense. See RSA 265 - A:2, I(a); RSA already outlined, essentially established the impairment element of both the opinion, which could not be adequately challenged for the reasons we have of the drugs found in his system that could impair his driving. H er ultimate defendant exhibited signs and symptoms of impairment consistent with the use of the case. Twice during her testimony, Scarneo offered her opinion that the given that the underlying methodology was unreliable, prejudiced the outcome use of drugs found in his system, which we have concluded was inadmissible “demonstrated signs and symptoms of impairment that are consistent with” the inadmissible, however, because her ultimate opinion that the defendant [¶34] W e need not decide which portions of Scarneo’s testimony were

general toxicological effects of certain drugs. defendant did not object to Scarneo’s testimony that focused primarily on the limited to the effects that cer tain drugs have on a person, and clarified that the argument, defense counsel agreed that expert testimony is likely admissible if address or object to this portion of the expert’s testimony. In fact, at oral motion in limine and the current appeal, the defendant does not appear to alone and concomitantly, as well as their effects on driving.” In both the effects associated with the drugs found in [the defendant’s] blood when used testimony would “include explaining the pharmacological and toxicological her expert witness disclosure, however, Scarneo also anticipated that her the defendant exhibited signs and symptoms consistent with impairment. In motion and on appeal focus on Scarneo’s anticipated opinion testimony that Scarneo’s testimony in his motion in limine, the arguments raised in the case. ’”). We first note that although the defendant objected to the entirety of ruling was untenable or unreasonable and that the error prejudiced the party’s court’s] determination ‘only if the appealing party can demonstrate that the p. 12 12

M AC DONALD, C.J., and BASSETT and COUNTWAY, JJ., concurred.

DWI charge for proceedings consistent with this opinion. lesser - included charge of DWI. Accordingly, we remand the lesser - included inadmissible, then the proper remedy would be to remand for a new trial on the