### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J une 5, 2002
STATE OF TENN ESSEE v. GREGORY W. GURLEY
Appeal from the Circuit Court for Madison County No. 01-116 Donald H. Allen, Judge

No. W2001-02253-CCA-R3-CD - Filed August 6, 2002

The defendant, Gregory W. Gurley, pursues an appeal of a certified que stion of law in the wake of his guilty pleaand resulting conviction of second- offense

driving under the i nfluenc e (DUI) . In his reservat ion of a certified question for appeal pursuant to Tenne ssee Rule of Criminal Proce dur e 37(b)(2 )(i) , the defendant claims that the trial court erred in denying his motion to suppress the results of an into ximeter t est; he po sits that the test

results a re inadm issible because the officer who administeredthe test failed to comply with the “20-minute” requirement for breath-alcohol testing that was established in State v. Sensing , 843 S.W.2d 412 (Tenn. 1 992). Bec ause the rec ord suppo

rts the trial court’s denial of

the suppr ession moti on, we af

firm.

Tenn. R. App.P. 3; Judgm ent of the Circuit C ourt Aff

irmed.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J ERRY L. S MITH , JJ., joined.
Jeff Mueller, Jackson, Tennessee, for the Appellant, Gregory W. Gurley.

Paul G. Summers, Attorney Genera l & Reporte

r; Christine M. Lapp s, Assistant Attorney Genera l; James G. (Jerr

y) Wooda

ll, District Attorne

y Gener al; a nd S haun A. Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION

The record of the proceedings below contains a transcript of the suppression hearing. Madison County Deputy Sheriff Shane Barnes, who was the sole witness at the hearing, testified that at approximately 9:30 p.m. on November 2, 2000 he arrested the defendant for D UI and transported him to the jail. After arriving at the jail, he took the defendant to the intoximeter room, where, upon looking at his watch, he commenced a 20-minute

observation of the defendant. During this period, the defendant did not

have any foreign matter in his mouth and did not drink, belch, or regurgitate. After the 20-minute period expired according to Deputy Barnes’s wa tch, he used th

e intoxime

ter to-2-

assess the d efendant’s blood-alcohol level. The state introduced through Deputy Barnes the intoximeter

print-ou t, which r eflected that the

test was admin

istered t o the defe ndant at 1 0:06 p.m. and yielded a blood-alcohol reading of .12 perce nt. Through cross-examining the deputy, the defendant introduced into evidence a

copy of the jail dispatcher’s computer log, which showed that Deputy Barnes reported his arrival at the jail with the de

fendant in tow at 9: 48 p.m. and introduced a copy of the Jackson Police Department’s computer log, which showed that, upo n D eputy Barnes’s arrival at the jail, he called the police department

to get an incident number at 9:51 p.m. The Jackson Police Department computer log
a lso showed that Deputy Barnes became available f or patrol duty at 10:17 p.m., although the dispatcher’s computer log showed that he became a vailable at approximately 10:23 p.m. During cross- and

re-direct examination, as well as during examination by the trial judge, Deputy Barnes insisted that he used his own watch for pur poses of t

iming the 20 -minute period and that he conducted the full 20-minute observ ation before commencing the test. He testified that he did not

remember the time of theevening shown on his watch when he commenced the 20-minute period. He did not time the period by the clock on the intoximeter. He testified that the intoximeter’s clock

was probably not synchronized with the dispatcher’s clock a nd/or computer or with the police department’s computer.

Reserving the right to appeal a certified question of law challenging the propriety of the trial court’s denial of

the suppr ession moti on, the de

fendant pleaded guilty tothe indictment’s secondcoun t of second-offense DUI, pursuant to Tennessee Code Annotated section 55-10- 401(a)(2). According to this Code section, a person commits DUI who drives an automobile or other motor driven vehicle on any public road, highway, s treet, alley, shopping center premises, trailer park, apartment house complex, or any other premises that is generally frequented by the public at large, while the

“alcoho l concen

tration in such per son’s bloo d or brea th is [.10 percent] or more.” Tenn. Code Ann. § 55-10-40 1(a)(2) (1998). Pursuant to the plea agree ment, count one of the indictmen t, which alleged DUI via driving “under the influence ,” see id. § 55-10-401(a)(1), was dismissed.

In State v. Sensing , 843 S.W. 2d 412 (Ten n. 1992), our supreme court established criteri a for the

admission o f certa

in breat h-alcohol tests:
[T]he testing officer must be ab le to tes tify (1) that the tests were performed

in accordance

with the standards and

operating procedure promul gate d by the forensic services division of the Tennessee Bu reau o f Invest

igation, ( 2) that he

was prop erly ce

rtified i n accordance

with those

standar ds, (3) th at the evidentiar y breath testing instru ment used was c ertified by the forensic services division,
was tested regularly for accuracy a nd was working properly when the breath test was performed, (4) that the motorist was observed for the
re quisite 20 minutes prior to the test, and during this period, he di d-3- nothave foreign matter

in his mouth, did n ot consume any alco holic beverage, smoke or regurgitate, (5 ) . . . that [the testing-officer] followed the prescribed

operational procedure, [and] (6) [that he must be able to] identify t

he printout r ecord offered in evidence as the result of the test given to the person tested.

Id. at 416.

The only facet of the Sensing re quireme nts a t issue in the present case is whether Deputy Barnes observed the defendant for the full 20- minute period prior to administering the intoximeter

test. The purp ose of the 20-minute period “is to make sure that the person tested has no foreign matter in

his mouth, th at he doe sn’t hicc ough, vomit , belch, smoke, or take another drink – all of which

could pro duce a f

alsereading.” State v. R obert Leon Curtis , No. 1 (Tenn. Crim. App., Jackson, Dec. 9, 1987), judgment modified on other grounds (Tenn. 1 988); see also State v. Mark Bateman , No. 01C01-9608-CC-00377, slip op. at 5-6 (Tenn. Crim. App., Nashville, Dec. 17, 1997) (20-minu te period “was judiciously imposed to protect against the skewing of test results due to [, inter alia ,] recent digestive episodes experience d by the accused”).

At the suppression hearing, the state bore the burden of establishing compliance with the Sensing requirements as a means of using the Sensing formula for gaining admission of the test results into evidence. Sensing , 843 S.W.2 d at 416 (s tate must e stablish “th e competency of the operator, the proper operation of the machine and that the testing proc edures [were] p rope rly followed”); see State v. Korsakov , 34 S.W.3d 534, 542 (Tenn. Crim. App. 2000). Th is burden is one of preponderance of the evidence

. State v. Edison , 9 S.W.3d 7 5, 77 (Te nn. 1999) . On appe al, the appellat e court will presume the corr ectnessof the tri al court ’s ruling o n the motion to suppre ss, unless the evidence preponderates otherwise. Id. at 78.

I. Reser

vation of Issue fo r Certifi ed Quest

ion Appea

l.

Our first tas k is to determine whether the defendant has effectively reserved an issue for appeal. Even though a guilty plea was tendered by the def

endant a nd acce pted by the

trial cou rt, the defendant has sought to reserve a dispositive issue for appeal as a certified question of law. See Tenn. R. Crim. App . 37(b)( 2)(i); State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988) (imposing r igid require ments for res e rvin g a cert ified que stion, inc luding tha t the judgme

nt of conv

iction must articula te that the state and the trial court consented to the reserva tion and that both agreed that the issue is dispositive of the case). Without belaboring the point, we conclude from our review of the record that the defendant has properly and effectively reserved for our review the certified question of law. II. The Presentation of a Dispositive Issue.

Despite that the defendant complied with Rule 37(b)(2)(i) and Preston and thereby effec tively reserved an appellate issue that the court a nd the parties below deemed to be dispositive-4-

of the case, we must nevertheless determine that the issue is, indeed, dispositive. State v. James O. Gambrell , Sr. , No. 01C01-9 603-CR-001 23, slip op. at 4-5 (Tenn. Crim. App., Nashville, May 7, 1997) (“Satisf

action of the tech nical requireme

nts does not ensure

review b y an appe

ll ate court. Appellat e review of a properly certified que stion of law is permitted only when the certified question addresses a dispositive issue, [and a]n appellate court is not bound by the trial court’s determination that an issue is dispositive.”).

In a DUI conviction based upon the driving-while-under-the-influence provision of Tennessee Code Anno ta ted sect i on 55-10-401(a)(1), the denial of a Sensing -based motion to suppress is not necessarily dispositive of the case. It is not dispositive when sufficient convicting evidence exists that is “independent of the test result,” such as testimony from an officer or other witness that the motorist drov e in a manner, or otherwise exhibited behavior, that suggested impairment

of the ability to drive. Mark Bateman , slip op. a t 6; see also State v. D

aniel O’N

eil Connelly , No. M2000-01914-CCA- R 3-CD, slip op. at 4 (Tenn. Crim. App., Nashville, Nov. 6, 2001).
We conclude, however, that when the c onviction is based upon the de facto bloodalcohol content of.10 percent or more, Tenn. Cod e Ann. §55 -10-401( a)(2) ( 1998), the admissibility into evidence of the only breath test given to the accuse d would be dispositive of the case, absent
some evidence, not offered in the present ca se, tha t ot her blood-alcohol evidence could somehow yet be developed from existing facts. Thus, w e conclude that the defendant has presented a dispositive issue.

III. The Merits of the Defe ndant’s Cl aim.

The defendant in his brief relies upon the documentary evidenc e introduced in t he suppression hearing. It showed that, upon arriving at the jai l with the d

efenda nt in custo dy, Deput

y Barnes spent a total of

26 minutes at the jail, based upon a 9:51 p.m. arrival time and clearance for resumption of patro l at 10:17 p .m. He postulates that this time period was insufficient to allow the deputy to enter the jail, book the defendant, fill out a warrant and affidavit, observe the defendant for 20 minutes, and then administer the intoximeter test.

Although we commend the d efendant’s counsel for his overall well-conc eived appella te theory, we must find it unav ailing. In c ontrast to the police department log, the dispatcher’s computer log reflects that Deputy Barnes arrive d at the ja il at 9:48 p. m. and was cleared for resumption of patrol at 10:23 p.m., leaving an interval of appro ximately 35 minutes. Moreover, the record fails to affirmatively reflect that Deputy Barnes actually booked the defendant and f illed outthe warrant papers prior to the intoximeter test or even prior to being listed available for patrol du ty. He stated, “We go through the door there in Booking, bear r ight back to the lef

t into th e Intoximeter

Room. It’sright as y ou walk in the door. ” He test

ified tha t h e co mmenced the 20- minute observation period immediately upon entering the intoximeter room.-5- At any rate, it is clear from

the record

of the suppression hearing that the trial court accredited

the testimony of Deputy Barnes, who testifie d affirmatively th at he time d a full 20 -minute period via his watch. Based upon this testimony, the trial court determined that the state carried

its burden of establishing compliance with the Sensing requirements. Presuming that the trial court’s findings of fact

are cor rect an d noting tha

t appella te court s defer

to fact-f inders to make cr edibility
assessme nts of witnesses who testify at suppression hearings, see State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996); State v. No rris , 47 S.W.3d 45, 468 (Tenn. Crim. App. 2000), we must concludethat the evidence does not preponderate aga inst the lower court’s findings. See Edison , 9 S.W.3d at 79 (appell ate court could not “say that the evidence preponder ates against the trial court’s finding that the Sensing prerequisites were met,” when the testing officer’s testimony supported the trial court’s determination).

As a result, we find n o rever sibleerror and affirm the trial court’s denia l of the motion to suppre ss.

________________________________ JAMES CURWOOD WITT, JR., JUDGE