### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE January 18, 2001 S ession
STATE OF TENNESSEE v. BRAD S TEPHEN LUCKETT
Appeal from the Criminal Court for Rutherford County No. M-47578 J. Steve Daniel, Judge

No. M2000-00528-CCA-R3-CD - March 8, 2001

The Defendant was c

onvicted by

a jury of dr

iving under the in

fluence of an int

oxic ant, se cond offense. In this di rect appeal, the Defendant contends that the trial court erred by admitting the
res ults of his breath-al

cohol test. The De

fendant argue

s that the State fai

led to prove that he wa s continuously

observed for twenty minutes prior to taking the test, and that one of the requirements for the admissibility

of the test results

was therefore

not satisfied. We af

firm the judgmen

t o f th e trial court. Tenn. R. App. P. Appeal as of Right; Judgment of the Criminal Court Affirmed

D AVID H. W ELLES , J., delivered the opinion of the court, in which J ERRY L. S MITH and R OBERT W. W EDEMEYER , JJ., joined.
V. Michael Fox, Na

shville, Tennesse

e, for the appell

ant, Brad Stephe

n Luckett. Paul G. Summers, Attorney General and Reporter;Jennifer L. Smith, Assista

nt Attorney G

eneral; William C. Whitesell, Jr., D istrict Attorney General, and William A. Osborne, Assistant District Attorney General, for the appellee, State of Tennesse e.
OPINION
The Defendant,

Brad S. Luckett, was convicted by a jury of driving under the influence of
an intoxicant (DUI), second offense, and sentenced

to eleven months, tw

enty-nine d

ays, to serv

e fifty days,with the balance of the se ntence to be serv

ed on probation. I

n this direct appe

al, the Defendant1 Prior to trial, the Defendant filed a motion to supp ress t he res ults of his breath- alcohol test. The trial court denied the motion after a hearing. TheDefendant subsequent ly objected at trial

to the admissibilit

y of the test. We have considered the relevant testimony offered at bo th the motion hearing and at trial in determining whether the tri al court erred in ruling the breath-alcohol test results admissib le. See State v. Henning , 975 S.W.2d 290 , 299 (Tenn. 1998) (“[I]n evaluating the correctnes s of a trial court’s rul ing on a pretrial motion to suppress, appellat e courts may consider the proof adduced both at the suppression hear

ing and at tr

ial.”)
-2- contend s that the trial court er red in admitting th

e results of his bre

ath-alcohol test. 1 Upon our review of the re

cord and releva

nt legal authori

ty, we aff irm the judgment o

f the trial court.

At approximately four o’clock on the morning of January 30, 1999, Officer Jeff Jones of the Smyrna Police Department observed the Defendant run a red light. Officer

Jones initiated his blue lights and fell in behind the Defendant. The Defendant pulled over and stopped . Off icer Jones approached

the Defendant a

nd asked to see his

lic ense, which the Defendant produced. Officer Jones noticed the odor

of alcohol on the D

efendant’s bre

ath and asked him

if he had been drinking. The Defendant responded that he had had “a couple.” Officer Jones requested the Defendant to step outof his vehicle and to pe rfor m some field sobriety tests. The Defendant performed the one-leg stand; the heel-to-toe; and thefinger-to-nos e sobriety t

ests. The Defend

ant’s performa

nce on these tests, together with the odor of alcohol that Officer Jones noticed and theDefendant’s ad mission to havin g had “a coupl e” of d rinks , led O ffice r Jon es to a rrest him fo r DUI.

Officer Jones took the Defe

ndant tothe police station and seated him at the side of his desk. Officer Jones testified that the Defendant was within an arm’s length away. The two conversed for the maj ori ty o f a period of a t least twenty minutes. During this time Officer Jones watched the Defendant

while he completed some

paperwork. At one point Officer Jones rolled back in his chair, turned to reach for som e forms, and lost sight of the De fendant for app

roximately thi

rty seconds

. Officer Jones admitted that he did not maintain “eye to eye” c ontact with the Defendant for the entire twenty minutes. However, Officer Jones testified that he was within reach of the Defendant for the entire time; could hear th

e Defendant; an

d had him at least

in his peripheral vi

sion for the entire

time other than when he turned to get the forms. Officer Jones testified that the Defendant did not burp, regurgitate, vomit, smoke or eat during this time. Officer Jones further testified that he did not think tha tthe Defendant ha

d anything

in his mouth during t

he twenty min

ute period or at t

he time h e administered the breath test to the Defendant. However, he also admitted that he did not ask the Defendant if he had any foreign matter in his mouth prior to administering the test. The results of the test indicated

that the Defenda

nt’s blood alcohol l

evel was .19 perc

ent.
The Defendant conte

nds on this appeal th

at, because Off

icer Jones did not ma

intain uni nterrupted

eye contact with him for the entire twenty minute period and because he did n o t confirm that the Defendant had no foreign material in his mouth, the trial court should have ruled the results of the breath test inadmissible. We respectfully disagree.

In State v. Sensing , 843 S.W.2d 412 (Tenn. 1992), our supreme court set forth six

elements that the State must establish before the results of a breath-alcohol test may be admitted:-3- 1. The test was performed in accordance w ith the standards and operating procedurepromulgated by the forensic services division of the Tennessee Bureau of Investigation;

2. The testing offi

cer was proper

ly certified in acc

ordance with thos

e standards;

3. The evidentiary

breath testing instrument used was certified by the forensic services division, was tested regularly for accuracy and was working properly when the breath test was perfor med;

4. The motorist was observed for twenty minut e s prior to the test, and during this period, did not have foreign matter in his or her mouth, did n ot co nsume any alcoholic beverage, smoke, or regurgitate;

5. The testing officer

followed the prescribed operational procedure; and

6. The testing offi

cer id entifies the printout reco rd offered in evidence as the result of the test given to the person tested.

See id. at 416. It is the

fourth of these requirements that the Defendant claims was not satis

fied in this case. The purpose of the

fourth requirement is

to ensure “that no foreign matter is present in the defendant’s mouth that could re tain alcohol and po

tentially influence the results of thetest.” State v. Cook , 9 S.W.3d 98, 100-01 (Tenn. 1999). Thus, this Court has found that [t]he twenty minute observation requirement of Sensing carries with it two distinct elements. The first is that the State must demonstrate that the Defend ant was observed for twenty

minutes. An officer may not guess, estimate or approximate the amount of time the subject was under observation. The second element of the requirement

is that the State must

establish that the subject did

not smoke, drink, e

at, chew g um, vomit , regurgitate , belch or hiccup

during the twent

y minutes prio

r to taking the test. State v. John H. Hackney , No 01C01-9704-CC-00152, 1998 WL 85287, at *2 (Tenn. Crim. App., Nashville, Feb. 20, 1998); State v. Harold E. Fields , No. 01C01-9412-CC-00438, 1996 WL 180706, at *2 (Tenn. Crim. App., Nashville, Apr. 12, 1996). In this case, Officer Jones testified that he began the observation period at 4:04 a.m . T he test was adminis tered at 4:32 a.m.

Thus, the State established that Officer Jone s observed the De

fendant for twe

nty minutes.

However, the Defendant-4-

contends that the observat ion period was not c

ontinuous and that th

e State has there

by failed to satisfy the s

econd element of

the observation r

equirement. During the observation period, the Defendant sat next to Officer Jone

s’ desk while Officer Jones sat behind the desk. Jones described the distance between himself and the Defendant as “[a] foot-and-a-half, within arm’s reach.” The two conversed and Officer Jones filled out the relevant paperwork. Jones testified that he observedthe Defendant for the twenty minutes required, and the Defendant

did not smoke or drink anything or put anything in his mouth dur ing the observation period. He testifiedthat he “didn't n otice anyth

ing during [their

] conversation tha

t would have led [him] to believe [the Def

endant] had anything

in his mouth.” Officer Jones admitted that, when he rolled his chair back to

retrieve som e forms, he lost ey e contact with the

Defendant for t

wenty to thirty seconds. Jones was,

however, within four feet of the Defendant during this brief interval, and noticed nothing via his othe r senses to

indicate that the D

efendant quickly

put anything

in his mouth from either an external or internal source.

The Defendant argue s that the officer’s failure to maintain a continuous, uninterrupted “eyeball to eyeball” watch over him renders the observation period invalid and the breath-alcohol test thereby ina

dmissible. The State

disagrees, ar

guing that Sensing does notrequire “comple tely uninterrupted eye contact with the suspect during the entire per iod.”

We first note that “[t]he state must establish compliance with Sensing by a preponderance of the evidence.” State v. De loit , 964 S.W.2d 909, 916 (T enn. Crim. App. 1997

). This Court, in turn, must presume that the trial court’s Sensing decision is correct unless the preponderance of the evidence is to the contrary. See State v. Edison , 9 S.W.3d 75, 78 (Tenn. 1999).

This Court has w restled with this issue on numerous occasions. In State v. Richard Korsakov , No. EI999-01530-CCA-R3-CD, 2000 WL 968812, at *6 (Tenn. Crim. App., Knoxville, July 13, 2000), for instance, a panel of this Court held that Sensing does not require an “unblinking gaze for twenty m

inutes.” We also sta

ted in that case, however, that

“the officer must be watching the defendan t r ather than performing other tasks.” Id. In Korsakov , the trial court admitted the breath test after finding that the officer had been directly facing the de fendant and would have detected the defendant’s

movements throug

h his peripheral v

ision while he compl

e t ed his paperwork. Id. at *4. This Court disagreed with the trial court and found that the t est should not have been admitted: “[the officer’s ] belief that he would have heard or smelled anything he did not
see does not satisfy

the prerequisite

that the defenda

nt mu st b e observed for twenty minutes.” Id. at *6.

In Harold

E. Fields , 1996 WL

180706, another panel of this Court affirmed the trial court’s refusal to admit a breath test on the grounds that “the deputy’s times were mere e stimates and t he deputy failed to keep the [defendant] in his view for twenty minutes .” Id. at *1. During the observation period, the deput y filled out p

aperwork while h

e was in the sa

me room wit

h the d efendant. This Court noted its c oncern that, “[w]hi

le often a belch o

r regurgitat

ion will p roduc e a noise capable of being heard by another person, this is not always the case.” Id. at *3.-5-

In Deloit , 964 S.W.2d at 915-16, the trial court concluded that the twenty-minute observation period included some minut es while the defe

ndant sat in the bac

k of the police ca

r as t he arresti ng officer filled out paperwork in the front seat. The officer testified that, dur

ing this time

in the car, he
was talking to the defendant a nd could see the de

fendant via

his rearview mirror. Id. at 915. The trial court admitted the breath test, and this Court found the admission

to be error, noting that “[t]he officer conceded that he could

not observe the de

fendant while

writing on the arrest report.” Id. at 916. The Deloit panel relied on the Fields decision as “req uir[ing] that the of

ficer ‘continuo

usly observe[ ] the test subject, with

his or her eyes, for the entire twenty -minute observational period.’” Id. at 916-17 (quoting Harold E. Fields , 1996 WL 180706, at *3).

In State v. Gregory L. Parker , No. M 1999- 00209 -CCA- R3CD , 1999 WL 1 29601 8 (Tenn. Crim. App., Nashville, Dec. 30, 1999), the twenty-minu te observation

period included the time during which the defendant performed f ield sobriety

tests. The arres

ting officer te

stified that, durin

g this period, the defendant “did not belch, regurgitate,smoke, drink, or put anything into his mouth.” Id. at *1. The officer also conceded, however, “that the defend ant could have be

lched while he ha

d his back turned as he walked to the patrol car, but that he saw no indication of that.” Id. The trial court admitted the results of the breath test upon finding that the officer had been “‘[w]ithin arm’s reach of the defendant, watching him’ and talking ‘face-to-face’” with the defendant. Id. This Cou r t affirmed the trial court’s

admission of the tes

t, finding that “t

he officer was

in close proximity of

the defendant for a six-minute interval preceding the nineteen-minute observation period and there was no indication of regurgitation during the entire time.” Id. at *2.

In rendering our decision i n this case, we re turn to the reason

for the twenty

-minute observation period: to “ensure[ ] that no foreign matter is present in the defendant’s mouth that could retain alcohol andpotentially influence the results of the test.” Cook , 9 S.W.3d at 101. Our supreme court has found that, “[i]f

credible proof establishes that the subject did not have foreign matter in the mouth, did not consume any alcoholic beverage, and did n ot smoke or regurgita

te, then the rule i

s satisfied

. . . .” State v. Hunter , 941 S.W.2d 56, 57-8 ( Tenn. 1997). Thus,

we do not think that a n unblinking ga ze is necessary to establish the emptiness of the suspect’s mouth. Indeed, a s was discovered in Cook , an unblinking gaze would notdiscover a suspect’s dentures, even though such might constitute foreign matter that would affect a breath-alcohol test. See Cook , 9 S.W.3d at 101. An unblinkin

g gaze might not reveal a smal

l burp either, if th

e observing off

icer were not su

fficiently close to the suspec

t.

W e find that the purpose of the observation period is satisfied where, as here, t he office r remains in v ery c lose proximi ty to the def endant for the en

tire time, enga

ges him or her in conversation (which would assist in determining the presence of foreign matter in the mouth), and loses direct eye contact for only brief intervals of time. In thi s case, Office r Jones testified tha

t, during the twenty-minute observation period, he was within one and one-half feet of the defendant except for a twenty to thirty second interval when he was no more than four feet away. Officer Jones testified that, during this time, he neither saw nor heard any

thing to indicate

that the defendant had any foreign matter in his mouth. We acknowled ge the officer’s candid admission that, during the brief time he rolled back in his chair and turned to retrieve some forms, he could not be “100 percent”-6-

certain that the defe n dant did not put anything in his mouth. However, if a suspect so much as coughed or sneezed and simultaneously raised his han d to his mouth, the obse rving officer

would similarly not be able to testify to “100 percent” certainty. In our view, Sensing does not

require 100 percent certainty. Rather, the State must establish by a preponde rance of th e evidence that the defendant’s mouth was free of foreign matter for a period of twenty

minutes prior to his taking the breath-alcohol test. Here, the State succeeded in meeting that

burden. The trial court committed no error in admitting

the breath-alc

ohol test results, a

nd this issue is there

fore without meri

t. The judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE