FILED

July 6, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE ) FOR PUBLICATION

)

Appellee ) FILED: JULY 6, 1999 

)

v. ) JEFFERSON COUNTY 

)

JERRY WAYNE EDISON ) HON. BEN W. HOOPER, II, JUDGE

 )

 Appellant ) NO. 03-S-01-9803-CC-00022

For Appellant: For Appellee:

LU ANN BALLEW JOHN KNOX WALKUP

Assistant Public Defender Attorney General and Reporter

Dandridge, TN

MICHAEL E. MOORE

Solicitor General

MICHAEL J. FAHEY, II

Assistant Attorney General

Nashville, TN

AL C. SCHMUTZER, JR.

District Attorney General

JAMES L. GASS

Assistant District Attorney General

Sevierville, TN

OPINION

AFFIRMED BIRCH, J.
1The Court of Criminal Appeals explained that although some

court documents refer to the defendant as “Eidson,” its policy is

to list the defendant’s name as it appears on the indictment. In

this case, “Edison” is the name used in the indictment. Thus, to

reduce the probability of confusion, we will also refer to the

defendant as Jerry Wayne Edison.

2

We granted this Tenn. R. App. P. 11 appeal to determine

the appropriate standard of review of a trial court’s decision to

admit a breath-alcohol test result under State v. Sensing, 843

S.W.2d 412 (Tenn. 1992). The Court of Criminal Appeals held that

the trial court had not abused its discretion in admitting the test

result of the defendant, Jerry Wayne Edison.1 We affirm the

judgment of the intermediate appellate court and conclude that a

trial court’s Sensing decision must be presumed correct on appeal

unless the preponderance of the evidence is to the contrary.

I

While on patrol during the early morning hours of

February 17, 1994, Officer Steve Manning of the Dandridge Police

Department observed a car stalled in the highway with an individual

attempting to push it out of the road. When Manning stopped to

offer assistance, he detected a strong odor of alcohol coming from

the defendant, who was in the driver’s seat of the car. Upon

questioning, the defendant admitted that he was returning home from

a country music bar in Knoxville when the alternator on his car

ceased to work. Manning then conducted three field sobriety tests;

the defendant failed each one. The defendant was arrested and

transported to the sheriff’s office. 
2“Blood alcohol concentration (BAC) is expressed in percent

weight by volume (%w/v) based upon grams of alcohol per 100 cubic

centimeters of blood or per 210 liters of breath. A BAC of 0.10%

w/v means 0.10 grams of alcohol per 100 cubic centimeters of blood

(0.01g/100cc) or 0.10 grams of alcohol per 210 liters of breath.

Alcohol concentrations in either breath or in air mixtures can also

be expressed in milligrams of alcohol per liter of air (mg/l); to

convert mg/l to units of percent weight by volume, multiply by

0.21. (Traffic Laws Anno., Sec. 11-002.1(a) (Supp. 1983)). The

conversion factor of 0.21 is a commonly used value recognized by

the Committee on Alcohol and Other Drugs of the National Safety

Council; that is 210 liters of deep lung air at 34/C contains

approximately the same quantity (mass) of ethanol [alcohol] as

100cc of pulmonary blood. See R.N. Harger, R.B. Forney and R.S.

Baker. ‘Estimates of the Level of Blood Alcohol from Analysis of

Breath.’ Quarterly Journal of Studies on Alcohol. 1-18 (1956).”

Sensing, 843 S.W.2d at 415 n.2.

3

At the sheriff’s office, the defendant was observed for

twenty minutes before undergoing breath-alcohol testing on an

Intoximeter 3000. Officer Merlin Foister, who was trained by the

Tennessee Bureau of Investigation, administered the test. The

defendant’s blood-alcohol content measured 0.12.2

II

In Sensing, this Court addressed the fundamental question

of the “foundation to be laid for the admission of evidentiary

breath tester results.” Sensing, 843 S.W.2d at 416. Prior to

Sensing, the certified operator of the test instrument was required

to know the scientific technology involved in the instrument’s

function. Id. But advances in scientific technology have now

facilitated the use of computerized instruments which are

thoroughly tested and monitored to ensure a greater degree of

accuracy. 
4

In recognition of these scientific advances, this Court

determined that, in general, the average law enforcement officer

administering a breath-alcohol test need not possess the technical

background necessary to qualify as an expert. Id. Rather, we held

that the testing officer must be able simply to testify to the

following six prerequisites to admissibility: 

(1) that the tests were performed

in accordance with the

standards and operating

procedure promulgated by the

forensic services division of

the Tennessee Bureau of

Investigation,

(2) that he was properly certified

in accordance with those

standards,

(3) that 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 performed,

(4) that the motorist was observed

for the requisite 20 minutes

prior to the test, and during

this period, he did not have

foreign matter in his mouth,

did not consume any alcoholic

beverage, s moke, o r

regurgitate,

(5) evidence that he followed the

p rescribed operational

procedure,

(6) identify the printout record

offered in evidence as the

result of the test given to the

person tested.

Id.

Once the State has satisfied the six prerequisites, the

test result is admissible. Once admitted, a ratio of 0.10% or more

creates a rebuttable presumption of intoxication. Tenn. Code Ann.

§ 55-10-408(b) (1993)(currently codified at Tenn. Code Ann. § 55-
3If the defendant has previously been convicted of driving

under the influence of an intoxicant, then a result of 0.08% or

more creates a rebuttable presumption of intoxication. Tenn. Code

Ann. § 55-10-408(b) (1998). 

5

10-408(a) (1998));3 Sensing, 843 S.W.2d at 416. The defendant is

free “to challenge the accuracy of the particular machine, the

qualifications of the operator, and the degree to which established

testing procedures were followed.” Id. Such challenges, however,

go only to the weight of the evidence, as distinguished from its

admissibility.

Although Sensing prescribed the requisite criteria for

the admissibility of breath-alcohol test results, it did not

establish an appropriate standard of review to be applied to the

trial court’s decision on admissibility. Indeed, even during these

proceedings, the parties have argued for different standards of

review, including abuse of discretion, preponderance of the

evidence, and de novo. A majority of the Court of Criminal Appeals

determined that the abuse of discretion standard was the

appropriate standard to be applied. 

The admissibility of evidence is generally within the

broad discretion of the trial court; absent an abuse of that

discretion, the trial court’s decision will not be reversed. State

v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). This standard has

been applied to decisions regarding the qualifications,

admissibility, relevancy, and competency of expert testimony.

State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993); see also State

v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994). To guide the trial

court’s discretion with respect to the admission of expert or
4Tenn. R. Evid. 702.

6

scientific testimony, we have recognized the following factors

which may be considered:

(1) whether scientific evidence has

been tested and the methodology

with which it has been tested;

(2) whether the evidence has been

subjected to peer review or

publication;

(3) whether a potential rate of

error is known;

(4) whether . . . the evidence is

generally accepted in the

scientific community; and

(5) whether the expert’s research

in the field has been conducted

independent of litigation.

McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). 

With specific regard to breath-alcohol test results,

Sensing removed the discretion which would have ordinarily

accompanied the admission of scientific evidence. See State v.

Bobo, 909 S.W.2d 788, 790 (Tenn. 1995) (“Sensing established the

prerequisites for threshold admissibility of breath alcohol test

results.”). For example, as noted previously, the person

administering the test need not be an expert. He or she must

simply have been trained by the Tennessee Bureau of Investigation

in the administration of such tests and must demonstrate that the

test was performed according to that training. 

Thus, instead of having to determine whether the

proffered test result “will substantially assist the trier of fact

to understand the evidence or to determine a fact in issue,”4 the

trial court must determine only whether the Sensing prerequisites
7

have been met. In this sense, the prerequisites are essentially

preliminary facts underlying the admission of the test result.

Once they are proven by a preponderance of the evidence, see State

v. Stamper, 863 S.W.2d 404, 406 (Tenn. 1993), the trial court

should admit the result.

This leads us to agree with Judge Joseph M. Tipton’s

analysis in his concurring opinion in the Court of Criminal

Appeals:

[T]he matters of discretion relative

to expert witness testimony and

scientific test reliability for

breath test results from an

Intoximeter 3000 were essentially

resolved in Sensing for DUI trials.

. . . In this respect, the [abuse of

discretion standard] would have us

defer to a discretion that the trial

court does not possess.

Under the preponderance standard, the trial court remains

responsible for determining whether the Sensing prerequisites have

been proven. Therefore, the trial court’s finding in regard to the

Sensing prerequisites is the ultimate measure of test result

admissibility. We will presume that finding is correct, and we

will overturn it only if the evidence preponderates otherwise. See

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996) (trial court’s

findings of fact on suppression issues are upheld unless the

evidence preponderates otherwise). 

III

The defendant argues that the State failed to satisfy two

of the Sensing prerequisites and, thus, that the breath-alcohol
5This prerequisite requires evidence “that the evidentiary

breath testing instrument used . . . was tested regularly for

accuracy and was working properly when the breath test was

performed.” Sensing, 843 S.W.2d at 416. 

6This prerequisite requires “evidence that [the testing

officer] followed the prescribed operational procedure.” Id.

8

test result should not have been admitted. Specifically, the

defendant contends that the State failed to satisfy the third

prerequisite5 and the fifth prerequisite.6 For the reasons set

forth below, we cannot hold that the evidence preponderates against

the trial court’s findings. 

Regarding the third prerequisite, Foister testified that

the Tennessee Bureau of Investigation calibrated the testing

instrument every three months and that a document evidencing the

instrument’s certification was posted at the jail. Although he

could not specify the exact date of the last maintenance check

performed, this lack of specificity does not detract from his

testimony. Accordingly, we cannot say that the evidence

preponderates against the trial court’s determination that this

prerequisite was satisfied. 

The evidence, however, is not as clear with regard to the

fifth prerequisite. On direct examination, Foister responded in

the affirmative to several questions about following the proper

procedures in testing the defendant. Because these questions and

answers were of a general nature, the trial court made the

following observation: 

[I]t may be that Item #5, that he

followed the prescribed operation

procedure, it’s kind of close. It
9

may be that you could make that more

specific.

To address the trial court’s concern about specificity,

the State asked Foister the following question: 

What did you do to get the machine

to operate properly? What steps did

you take with the defendant?

 

In response, Foister testified to the following procedures taken:

(1) observed the defendant for

twenty minutes;

(2) input the required information

into the machine;

(3) allowed the machine to purge

itself of dust or any other

substances;

(4) waited for the machine’s

direction to blow;

(5) had the defendant blow into the

machine; and

(6) obtained a printout of the

results. 

The printout confirms that the required information was entered and

that Foister tested a blank against a standard and then a blank

against the defendant’s sample.

Defense counsel was permitted to cross-examine Foister

regarding satisfaction of the Sensing prerequisites. During this

examination, the following exchange took place:

Q: Can you recall or can you

remember whether you followed

those procedures that night

with Mr. Eidson?

A. Well, I’m sure I followed the

procedures, but I can’t

remember. It’s just certain

procedures you have to follow

to run the test. 
10

Based on this statement, the defendant argues that the trial court

erred in admitting the test result.

Foister testified that he followed the proper procedures,

notwithstanding his failure to recall the specifics of the night in

question. Although he admitted during cross-examination that he

could not “remember” following the procedures, his testimony, as a

whole, supports the trial court’s determination that he had. Thus,

we cannot say that the evidence preponderates against the trial

court’s finding that the Sensing prerequisites were met.

IV

To summarize, we conclude that a trial court’s decision

to admit breath-alcohol test results under Sensing will not be

overturned unless the preponderance of the evidence is otherwise.

Applying this standard to the facts of this case, we cannot say

that the trial court erred in admitting the defendant’s breathalcohol test result. Accordingly, the judgment of the Court of

Criminal Appeals is affirmed. Costs shall be assessed against the

defendant. 

______________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.

Drowota, Holder, Barker, JJ.