# FILED
December 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON SEPTEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9711-CR-00444 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. L.T. LAFFERTY, RONNIE L. GRAHAM, ) JUDGE ) Appellant. ) (DUI)

FOR THE APPELLANT : TERRY D. SMART 371 Carroll Avenue Memphis, TN 38105 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter PET ER M . CO UGH LAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General J. ROBERT CARTER, JR. Assistant

District Attorney

General Criminal Justice Co mplex 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FI LED:

REVERSED AND

REMANDED
JOE G. RILEY, JUDGE1 The letter is date d July 19, 1996, a

nd reads in relev

ant part: “As a result of two (2) recent Tennessee Supreme Court rulings regarding the interpretati

on of TCA § 38-6-10

3(a); State v. Sensing , (1992) and State v. Bobo , (1995), yo

ur office reque

sted a meeting w

ith the TBI to d

iscuss the issue of cert

ification of brea

th alcohol testing

instruments curre

ntly utilized in Shelby

County by

the Metro DUI

Unit. At that meetin

g held April 19, 1996, Mr. Don Strawther and Officer Richard Mills were informed that in or

der for TBI

to certify y

our instrument, it w

ould have to 2 OPINION

Defendant was convi cted by a Shelby County jury of driving under the influence of an intoxi cant in vi olation of Tenn . Code Ann. § 5 5-10-401. Th e t rial court fined him $600 and sentenced hi m to serve 45 days, all but 48 hours suspended, followed by 11 months and 29 days on probation. In cross-appeals the defendant challenges the admissibi lity of breath alcohol tes t resultsfrom a Siemens Alcomatdevice; the state chall enges the sentence imposed. This court concludes that the test results were erro neously admitted andthat the sentence imposed was improper. Thus, we REVERSE AND R EMANDwith the admonition that should defendant be found guilty upon ret rial , the proper sentence is 11 months and 29 days with an appropriate por tion of that sentence suspended and the bal ance on probation.

FACTS

Defendant was arrestedfor driving a motor v ehicle while under the

influence of an intoxicant on June 27, 1996, in Shelby County. He w as given a breath alcoh ol test by Officer Harold Stabe of the Metro DUI Unit using a Siemens Alcomat Bre ath Testing Instrument. Defendant reg istered 0.14% BAC. The trial court denied defendant’s pre-trial motion to al low int o evidence a letter from the Assistant Director of the Tenn essee Bureau of Investigati on to Shelby County Sheriff A.C. Gill ess denying approval and certi ficat ion of the Siemens Alcomat Breath Testing Instrument. 1undergo an evaluation process by TBI Forensic Services Division as every instrument certified by the TBI has done. On Ma y 31, 1996, your office delivered to TBI

Forensic Servic

es Division a Siemen

s Alcomat Breat

h Alcohol Testing I

nstrument for scie

ntific appraisal
. “Minimum Standard #

6 of TBI’s Min

imum Standards for

the Scientific appraisal of the

capabilities of B

reath Alcohol I

nstrument states: ‘Substances whic

h are produced e

ndogenously

and appear in the

breath shall not contribute to the apparent blood alcohol concentration (acetone and ketones, etc.).’ The Alcomat instrument would not discriminate an interfering su

bstance (aceto

ne) from ethy

l alcohol. “Based upon the TBI Forensic Service Division Minimum Standards for the Scientific App

raisal of the Capa

bilities of Brea

th Alcohol Inst

ruments dated June 1, 1996, the Siemens Alcomat Breath Alcohol Instrument cannot be approved and certified by the TBI . Attached is a copy of a memorandum from F

orensic Scientist S

upervisor William He

aney, Bre ath Alcohol Unit, outlining the basis for the decision.”
2 Tenn. R. Evid. 702. I

f scientific, tec

hnical, or other s

pecialized knowle

dge will substantially

assist the trier of

fact to understa

nd the evidence o

r to determine a f

act in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or other wise. Tenn. R. Evid. 703. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the he

aring. If o

f a type re asonably re

lied upon by e

xperts in the partic

ular field in forming opinions or inferences upon the subject, the facts or data need not be 3 At trial, Officer Stabe testified about his training to become a member of the Metro DUI Unit, his exper ience administering breath alcohol tests and h i s experience testifying in cou rt as to t heir results. He further testified that he underwent

all training on the Alc o mat; that maintenance of the machines w as another officer’s responsibility; and he describe d the Alcomat’s self-testing capab ility which prevents the acceptance of a breath sample if the machine is not functioning properly. Over defe ndant’s objectio n, his tes t result wa s admitte d into evidence based upon Officer Stabe’s testimony

.

ADMISSIBILITY OF BREATH TEST RESULT

Defendant charges multiple errors on the part of the trial court. However, his argumen t basi cally challenges the admissibility of the breath test result where neither the req uirements of State v. Sensing , 843 S.W.2 d 412 (Tenn. 1992) nor Tenn. R. Evid. 702 and 703 w ere met. 2admissible in evidence. The court shall disallow testimony in the form of an opinion or

inference if th

e underlyin

g facts or data

indicate lack of

trustworthiness. 4 In response, the state argues that Shelby County is not

required to comply with Sensing and essentially concedes non-compliance with the Tennes see Rules of Evidence standards for ex pert witnesses. The state asks this court to recognize the reliability

of bre ath alcohol testing dev ices in general and to cr eate a relaxed standard of admissibility for the Al comat as did Sens ing for the Intoximeter 3000. This, it claims, will “give meaning and pur pose to the separate traini ng giv en to Davidson and Shel by County officers . . . and put Shel by and Davidson Counti es on equal footing with other Tennessee counties.” In l ight of controlling cas e law, we decline the state’s invitation. See gener ally , State v. Bobo , 909 S.W.2d 788 (Tenn. 1995)(interpreting the Sensin g stan dards as threshold prerequisites to admissibility of test results as oppose d t o factors in determining the wei ght ofevidence), and State v. Deloit , 964 S.W.2d 909 (Tenn. Crim. App. 1997)(requi ring the stat e to establish a proper foundation for admissibility

under Tenn. R. Evid. 702 and 703 in the event the Sensing requirements are not met). Sensing established the now familiar threshold prereq uisites for admissibility of breath alcohol testing device results without the benefit of expert testimony. For the test results to be admissi ble, a testing of ficermust testify (1) the tests were performed in accordance with TBI standar ds and operating procedure; (2) he or she
was properly certified i n accordance withthose standards; (3)the instrument used
was certified by the TBI, tested regularl y for ac curacy and working properly when the test was performed; (4) the motorist was observ ed for 20 minutes prior to the test, and durin g this peri od, did n ot have foreign matter in his mouth, consume any alcohol, smoke, or regurgitate; (5 ) he or she followed prescribed operational procedure; and (6) identify the printout record as

the result of the test giv en to the person tested. Sensing , 843 S.W.2d at 416. While noting the fac t that Shelby and David son Counties do not subscri be to the TBI program, the Sensing court did not endeavor to establish the standards5

nee ded to create a presumption of admissi bility in those counti es. Howev er, th e Tennessee Supreme Court i n Bobo , a case out of Shelby County concerning the Alc omat, held that “[t]he prerequi sites to admissibility in Sensing are just that: prerequisites

to admissibility. They

are not factors for

determining the

weight of the evidence.” Bobo , 909 S. W.2d at 790. Intimating that the Sensing requirements
were necessary for the admissi bility of breath alcohol test results under any a nd all circumstances , t he court referred to the prerequisites as “unambiguous threshold admissibility requirements.” Id . at 789. A panel of this court recently interpreted the Bobo language to mean that the state must comply with

the six Sensing prerequisites when it “seeks to admit the test results through thetestimony of [a] non-expert testing officer.” Deloit , 964 S.W.2d at 914. However, this “would not prevent the state from establishi ng the mor e stringent foundation for admission of test r esults as set out in Tenn. R. E vid. 702 and 703.” Id . The court concludedthat the state has the option to proceed un der either Sensing or Tenn. R. Evid. 702 and 703. Id

. These decisions are dispositive on the issue. There are two ways to procure the admission of breath alcohol test results into evidence:(1) p rove that the Sensing requirements are met; or (2) l ay a proper foundation for admissi on by meeting the requirements of R ules 702 and 703 relating to expert testimony. In this instance, the state met neither standard. Hence, the test result was admitte d erroneo usly.

HARMLESS ERROR ANALYSIS

A thorough review of the remaining evidence does not convince us that the admission of the test result was har mless. Other than the breath alcohol test result,3 This evidence will be inadmissible upon a retrial. See State v. Murphy , 953

S.W.2d 200 (Tenn. 1997). 6 there was testimony from the tw o officers who made th e initia l stop, Lawrence Evans an d Michael McCollum. Ev ans testified that, at approxi mately 11:45 p.m., he and his partner observed defendant’s car swerv ing from sideto side in its lane. It then straddled two lanes for a short distance before they pulled defendant over. As they approached the car, defendant got out. He was unsteady on hi s feet, h a d bloods hot eyes, and a stro ng odor of an intoxic ant abou t his body. Defendant admitte d having two drin ks at a nearby bar and ag reed to submit to a field sobriety test. Evans administered several field sobriety tests but onl y recalled details about the Horizontal Gaze Nystagmus (HGN). 3 However, in Ev ans’ opinion, defendant did poorly enough on all the tests to warrant calling a Metro DUI Unit to the scene for a more thorough evaluation of defendant’s condition. McCollum testified defendant had a strong odor of alcohol about

him, and his speech seemed slurred. In combinati on with the field sobriety tests conducted by Evans, McCollum agr

eed that a Metro DUI Unit should be called to the scene. When Officer Harold Stabe arrived, Evans and M cCollum turned defendant
over to him. Officer Stabe’s interacti on with defendant was videotaped. The tape
was introduced into evidence at trial and is part of the record. It

shows defendant completing another series of field sobriety tests; s ome successfully, but

not others. Based upon this evidence, w e are unable to conclude that the admission of the breath alcohol test result was ha rmless erro r. Whether defenda nt was in violation of T.C.A. § 55 -10-401 is an issue for a jury to deter mine with proper evidence.

SENTENCING

As a result of defendant’s conviction for driv ing under the influence, the trial court ordered him to pay a $600 fine and sentenced him to 45 days of incarceration,4 A fourth or subsequent DUI is a Class E felony. Tenn. Code Ann. § 55- 10-

403(a)(1). 7 all but 48 hours suspended, follow ed by 11 months and 29 days of pro bation. The statutes in effect at the time of this offense established 11 months and 29 days as the maximum sente nce all owed for anyone convic ted of DUI. Tenn. Code Ann. § 55-10-403(a)(1). S ub section (c) provides that D UI offenders be “required to serve the difference betw een the time actually serv ed and the maximum sentence on probation.” A panel of this court in State v. Combs , 945 S.W.2d 770 (Tenn. Crim. App. 1996), concluded that § 55-10-403(c) “in effect, mandates a maximum sentence for DUI, with the only

function ofthe trial court being to determine what period ab ove the minimum perio d o f incarceration established by statute, if any, is t o be suspended.” Combs , 945 S.W.2d at 774 (empha sis added). Another panel of this court, citing Combs , reached a simlar result

. State v. David Moss , C .C.A. No. 02C01-9610-CC-00365, Lauderdale County (Tenn. Crim. App. filed November 18, 1997, at Jackson). We conclude tha

t the sentenc

e imposed in this case w as imp roper. T rial courts must sentence defendan ts fou nd guilty of misdemeanor DU I to 11 months and 29 days. 4 Discretion may then be used to suspend whatever non-mandatory time is appropriate. The balanc e shall be served on proba tion.

CONCLUSION

Based upon the foregoing, the judg ment of the trial court is reversed and this matter remanded for a new trial.8 ____________________________ JOE G. RILEY, JUDGE

CONCUR:

____________________________ PAUL G. SUMM ERS, JUDGE

____________________________ DAVID H. WELL ES, JUDGE