# FILED
October 16, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MARCH SESSION , 1997
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9605- CC-00209 ) Appellee, ) COFFEE COUNTY ) ) V. ) HON . GER ALD L. E WEL L, SR., ) JUDGE MARK T. SCISNEY ) ) (DUI WHILE DR IVI NG Appe llant. ) COMMERCIAL VEHICLE)

FOR THE APPELLANT : FOR THE APPELLEE : ROBERT S. PE TERS JOHN KNOX WALKUP Swafford, Peters & Priest Attorney General& Reporter 100 Firs t Avenu e, S.W
. Win cheste r, TN 37 398 DEB ORAH A. TULL IS Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243-0493 C. MICHAEL LA

YNE Distri ct Attorney General STEP HEN E . WEITZ MAN Assistant Distri ct Attorney General 307 South Woodland P.O. Box 147 Manchester, TN 37355

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

A Coffee County j ury found Defendant guilty of driv ing u nder the influen ce wh ile ope rating a com merc ial mo tor veh icle in viol ation of Tennesse e Code Annotated secti on 55-50-408. He appeal s as ofright pur suant to Rule 3, Tennessee Rules of Appell ate Procedure. In a two (2)prong attack upon the sufficiency

of the evi dence, Defendant ar gues that the S tate failed to prove t hat his blood alcoholconcentrati on w as .04 or more, and als o argues that the evidence was in sufficie nt as th e State prove d his “alcohol by weight” rather t han his blood alcoholconcentrati on as required by the statute. The judgment of the trialcourt is

affirmed.

When an accused challenges t he suffi ciency of the convict ing evidence, the standard is w hether, after reviewing the evi dence in the light most favora ble to the prosecut ion, any r ational trier

of fact could have fou nd the essentialelements of t he crime beyond areason able do ubt. Jack son v. V irginia , 443 U.S. 307, 31 9 (1979). Questions concer ning the credibili ty of the wit nesses, the weight and val ue to be given t he evidence, as well as al l factua l issues rai sed by the evidence, are resolved by the trierof fact, not this c ourt. State v. Pappas , 754 S.W .2d 620 , 623 (T enn. C rim. App .), perm . to appeal denied , id
. ( Tenn. 1987). N or may this court re weigh o r reevalua te the evide nce. State v. Cabbage , 571 S.W .2d 832 , 835 (T enn. 19 78).-3- A jury ver

dict approv

ed b y the trial judg e acc redits th e State ’s witnessesand res olves all co nflicts in favor o f the State. State v. Grace , 493 S.W.2d 474, 47 6 (Ten n. 1973 ). On ap peal, the S tate is enti tled to t he strongest legitimate view of t he e vidence and all infere nces the refrom. Cabbage , 571 S.W.2d at 835 . Beca use a verdict o f guilt removes the presumpti on of innocence and replaces it with a pres umptio n of guilt, the accu sed h as the burde n in this court of illustr

ating why the evidenceis insuf ficien t to support

the verdi ct returned by the trier of fact. State v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 19 82); Grace , 493 S.W.2d at 476.

At approximatel y 1:00 a.m. on October 14, 199 4, Defendant was operating an “18-wheeler ” truck when he drove throug h the weigh station on the westbound side o f Intersta te 24 in Coffe e Cou nty. Tim Garner, an officer with the Tennessee Public Service Commission at the time, wa s on du ty and de cided to check Defendant for his dri ver’s l icense, l og boo k , and medical cer tifi cate. According to Officer Garner, such random checks were a part of hi s duties and respo nsib ilit ies. D efendant was gi ven a signal to drive his truc k around to t he back of the checki ng area. After opening thedoor to Defendant ’s vehic le, Garner imm ediate ly smelled the odo r of an intoxic ating bev erage. Garner requestedhis partner, Officer Slatton, to come and confirm the odor, and t hen to administer an alcohol breath test

to Defendant usi ng the Intox imeter 3000 machine located at the weigh stat ion complex. Garner could not administer

the test because he was not certif ied to do so, but Offi cer Slatton was p roperly certif ied to operate the Intoxime ter 3000
.-4- The record ref lects t hat the Int oximeter 3000 test was prop er ly administeredpursua nt to the requ iremen ts of State v. Sensing , 843 S.W.2d 412 (Tenn. 1992). The test result re gistered b y the ma chine w as .04. The only other proofof consum ption of alcohol by D efendant wa s the odor o f an into xicant smelled by the o fficers a nd the Defe ndan t’s statement at the scene that

he had
consu med a couple o f “tall beers” in G eorgia “b efore he left.”

At trial , the State produced the testimony of Will iam Heaney, Jr. , and Officers Garner and Slatton. Defendant di d not testify and o ffered no proof. Mr. Heaney was the supervi sor of the br eath a lcohol program for the State of Tennessee throu gh his employment i n the Forensic Services Di vision of the Tennessee Bureau of In vest igat ion. As part of hi s employment duti es, Heaney
was requi red to re gularly check and monitor t he accuracy of Intoxi meter 3000 machines throughout t he state whi ch are mon itored b y the T.B.I ., incl uding the machine used to te st the De fendan t on the nig ht of his arre st. Accord ing to Heane y, each Intoxime ter 3000 m achine has a deviation rate of plus or m inu s .005 or p l us or minus fi ve (5%) percent, whichever i s greater. In addit ion, Heaney noted that the m achine is program ed to automatical ly round downwa rd to the nea rest hundredt h afte r it has interpr eted the test. For i nstance, i f the machine interpr

ets a blood concentrati on by weig ht of .04 9999 , it would print out a result of

.04.
Heaney testifi ed that the parti cular machine which was used to test Defendant was checked on July 21, 1994 and again on October 25, 1994. The accuracy of the machine is tested by taking known standards and “ blowing” t hem-5-

into the mach ine using “a simulator of known alcoholconcentrati on.” Duringthe July 21, 1994 test , a known sample of . 025 was used and the machine was reading high and gave a result of .0253. On the same date, the machine wa s also read ing low wh en a kn own sa mple o f .100 gav e a resu lt of .0976.

During the October 25 , 1994 test, t he 0.025 standar d was run through the machine and it gave th e resu lt of 0.0262. W hen the .100 standard
was submitted to the machine on October 25, 1994, i t gave a result of .0985. Therefore during the two re gularmonitorings of the machine, before and after Defe ndan t’s arrest, the machine was readi ng bot h high and low, but withi n the accep table tolera nce of plu s or min us .005
.

From the proof i n this r ecord, we dis cern that a . 04 reading on t he Intoxi meter 3000 c an resu lt f rom act ual blood al cohol concentr ations rangi ng from .035 to .05 4. We arrive at this co nclusion from the following a nalysis of th e evidence. If the machi ne is readi ng “high” . 005, a .035 act ual blood alcoho l concentrati on would be interp reted and repor ted as a .04 by

the Intox imeter 3000. If the mac hine we re readin g “low” .00 5, an actual bl ood alcohol concentrati on by weight of .054 would be interpr eted by the machine as . 049 and reported as a .04 after automatical ly roundi ng downwa rd to the nearest hundredth. It is

not clear at all in the reco rd why themachine gives a result i n the ten-thousandt hs when being monitored, but only in t he hundredths when being used to test p erson s susp ected of bein g und er the in fluenc e of alc ohol.-6- Based on the record, it appears tha t, when carried to the thousandths , a .04 print out cou ld be th e result of twenty (20) different blood alcoho l concen trations. Five (5) of those (.035 - .03 59) wou ld be belo w .04.

Defendant alleges t hat based upon th e proof in th is record, th e State failedto prove beyond a reasonable doubt that he was gui lty of

the crime char

ged since there is a distin ct ma them atical possi bilit y that hi s blood alcohol concentrati on was less tha n .04. T he issu e pres ented by De fenda nt is appa rently
one of first impre ssion in T ennes see. Neithe r the S tate no r the D efend ant in this appeal have cited or reli ed upon any cases fr om other jurisdi ctions which address this prec ise issue.

Howeve r, we have been able to find cases f rom other jurisdict ions which have dealt with the is sue. Some of these case s have taken t he positi on urged by Defendant. In State v. Boehmer , 1 Haw. App. 44, 613 P.2d 916 (1 980), two (2) separate cases were co nsolidated for appeal. In each case, t he Defendant was arrested f or drivi ng under the i nfluence and given a breathaly zer test. Defend ant Boe hmer’s test show ed .11 w eight of alcoh ol a nd Defendant Gog o’s test result w as .10 w eight o f alcoh ol i n the blood. In both cases, the undisputed proof w as tha t the pa rticular b reatha lyzer m achin e had a m argin of
er rorof 0.01 65. Th e statu te involv ed wa s not a “per se ” statute as fou nd in Tennessee Code Annotated secti on 55- 50 -408, bu t rather pro vided tha t if a defendanthad .10 or m ore by weight o f alcohol in his or her blood, i t created a presumption that the defend ant was unde r the influence of intoxicating liquor. The Hawaii Co urt of Appeals recognized that it was apparent the trialjudge reli ed-7-

upon the breathaly

zer test as

creating a

presum ption of ea ch defe ndant’s s tate of intoxicati on. The court reversed and remanded both cases a n d spe cifically held:
The failur

e of the pros ecution to establi sh b eyo nd a re ason able doubt that t he actual wei ght of alcohol in defe ndan t’s blood was at least .10% requ ire d the trial judge to ignore the statutory presumption i n its determination.
Boehmer , 613 P.2d at 918.

In State v. Bjornsen , 201 Ne b. 709, 27 1 N.W.2d 839 (1978), the defendantappealed from hi s convict ion of operat ing a motor vehi cle whil e having .10 percentalcoh ol by we ight in th is blood. The Nebraska Supr eme Court noted thatthere wa s no evide nce of the defend ant’s intoxica tion to sustain aconvicti on otherthan the res ult s of the bl ood test. The arresti ng officer observed t hat the defendanthad an odor of alcohol on his br eath and that

there was a part ially

fill ed wine bottle f

ound at the scen e. The re sults of the defe ndant’s bl ood test was . 10 percent of alco hol by weig ht. Th e expe rt who te stified a t trial state d that th is result was accurate “within five thousandths [. 005]of a

percent .”The S upreme Court of Nebraska reversed the convi ction and di smissed the case. In doi ng so, the court hel d:
W hile the Legisl ature ha s the acknowledged right to pr escribe acce ptable methods of testi ng for alco hol content in body fl uids and perhaps even the ri ght to presc ribe that su ch evid ence is adm issible in a court of law, it is a judici al dete rmina tion as to whe ther this evidence is sufficie nt to su stain a convic tio n , if the evid ence is believed. The Legi slature has selected a particul ar percent of alcohol to be a criminaloffense i f present i n a person operati ng a-8- motor vehicle. It is

not u nreaso nable to re quire tha t the test, designed to show that percent, do so outside of an y error or tolerance inherent i n the testing process. Bjornsen , 271 N.W.2d at 710-11.

In Hayne s v. State, D epart ment o f Public S afety , 865 P.2d 753 (Alaska 1993), the Appellant Haynes’ driver’s l icense was revoked under Alaska law becau se follo win g his arrest for dri ving whil e intoxi cated, the result of an Intoxi meter 3000 test sho wed a read ing of .106 gram s of alcohol per 2 10 liters of breath. Al aska statutes p ermitted r evocation of

a driver’s li cense upon a chemical test producing a result of .10 or more. I n that case, the testi mony at tri al
was that the I ntoximeter 3000 had a recognized margi n of error of .01 grams per 210 lite rs ofbreath. The Alas ka Suprem e Court revers ed the revoca tion of Mr. Ha ynes’ d river’s l icense. That court held t hat based upon the Alaska Constitut ion, it was a vi olation of due proce ss to re voke a perso n’s drive r’s license when the inheren t margin of error of t he testi ng device was no t applied in favor of the person subject to license re vocation
. Haynes , 865 P.2d at 756.

Otherjurisdi ctions have held that a similar

margin of err

or does not require a convict ion to be rev ersed based u pon insufficienc y of eviden ce. In State v. Lenti ni , 240 N.J.Su per. 330, 573 A.2d 464 (19 90), theSuperior Court of New Jersey, Appellate Di vision, addressed the issue wher ein the defendant was given two (2) breatha lyzer tests, w here bo th readin gs were exactly .10. In New Jerseyat the time , the defen dant wa s convicte d unde r a statute w hich m ade it a cri mi nal offense to operate “a motor vehicle with a blood al cohol concentr ation of 0.10% or more by wei ght of alcohol in t he defendant’ s blood . . . .” Bot h the-9-

defen dant’s expert witness and t he trooper who ar rested the def endant testified thatthe breathalyze r had an acc uracy of plus or m inus 0.01% . The court noted tha t the reading of 0.1 0 reflected a bloo d alcohol con centration anyw her e between .09 and .11 percent. The New Jersey Court stated t hat the pre cise i ssue wa s whether the . 10 reading fr om the properly

operated and fun ctioni ng machine was suffi cient to support a convi ction under the ap plicab le statute i n light of th e 0.01% tolerance. That court deemed the issue to present a ques tion o f legislative intent. It anal yzed severalstatutes in New Jersey which a re similar to Tennessee Code Annotated secti on 55-10-408 (i nference whic h can be raised by .10 percent by weight of alcohol i n blood), Tennessee Code Annotated secti on 55-10-406 (im plied consent law), and Tennessee Code Annotated section 55-10 - 405 (chemical testfor alcoho l content may include speci men of blood, uri ne, or breath). The New Jersey Court rejected t he defendant’ s argument that the inherent margi n of error of the breathalyzer machine, wher e the resul t reported
was .10, prevented the State from provi ng the offens e bey ond a reaso nable doubt. The New Jersey Cour t held:
In the p resent case, defendant seeks to blunt the Legisl ature’ s resolve by giving new vigor to th e probative value of expert testimony

in the interest

of eli minating a possi ble deviat ion of 1/1 00 of a perc ent. If de fenda nt’s conte ntion is adopted, the presumptions establi shed by N.J.S.A. 39:450.1( 1) and (2), (s ee footnote on e, supra) as well as t he pe r se bright l ine of 0.1 0% would have to be adjusted in derogati on of the statutes’ objecti ve standards. The adjustmentwo uld ha ve to be mad e on a case -by-ca se ba sis depending on the expe rt testi mony i ntroduce d in e ach ca se. No expert is bound by the opinion evi dence in the p resent case regardingany breathalyzer’s margin of deviation. Thus, the ca refull y construed regulator

y scheme willin many cases again become a battle of the exper

ts. As Tisch io [ State v. Tisch io , 10 7 N.J. 504, 527 A.2d 388 (1 987)] d emo nstrate d, that w ould be incon sistent with the Leg islature’s inte nt.-10- Moreover, if it

cannot be deter mined, as appears to be the case, whether thetolerance is to be added to orsubtracted from the breathaly

zerreading, t hen, contrary to the statu te, a 0.11% readi ng will be required to establi sh the per se v iolati on.
Lentini , 573 A.2d at 467.

In King v. Common wealth , 875 S.W.2d 902 (Ky. App. 1993), the defendantwas convicted for a “per se DUI.”

The Intoxi lyzer

5000 machine was used to test the defendant’ s blood alcoh ol conc entrati on and gave a resul t of .100. There was uncontradi cted evidence a t trial that th e partic ular m achin e’s marg in of error

was plus or minus .005. In the appeal , the defendant al leged that his rights t

o due process of l aw were viol ated when he was denied a di rec te d verdictfor acquittal give n th e fact that the results ad mitted into evidenc e were within the m argin of err or.

The Kentucky Court of Appeals stated the issue to be: [I]s an Intoxilyze r 5000 re ading o f .100 sufficie nt, probative evidence to prove bey ond a reasonable doubt that a perso n has an ‘alcohol concentrati on in his bl ood or breath o f .10 or more’as required by KRS 189A.010(1)(a) when the intoxilyzermachine in questi on has a margin of err

or of plus/

minus .005? We think th at it is and affirm the Circu it Court. King , 875 S.W.2d at 902.

The Kentucky Court of Appeals noted t hat in our i mper fect world, any mac hine, in cludin g intoxily zers, w ould have a margin of err or. The court

then addressed the quest ion of how much of a margi n of error would be tol erated before a reading woul d no longer be credib le or be of any p robativ e value . Wh ile-11-

agreeing that the margi n of error of the mac hin e sho uld be cons idered in determiningthe probative value of t he machine’s results, the court noted t hat the admis sibility of the evi dence based upon the reli abilit y of the machi ne was an issue for the t rial judg e. In reachi ng its concl usion, t he Kentucky Court of Appeals held,
The .005 margin of

error l eav es the possibi lity of the absol ute true reading to fall within the range o f .095 to .10 5. That is a possibility of five thousa ndths a bove or b elow a tru e readin g. Where the Legislature speaks in terms of an alcohol concentrati on of .10, t hey merely went i nto the hundredt hs
. . . . To exclude a readin g with a poss ible error of

five t housandths woul d be r equiring t he Com monw ealth to prove i n the realm of beyond “any” doub t [as oppos ed to pro ving beyo nd a rea sonab le doub t]. King , 875 S.W .2d at 903 (em phasis add ed).

In State v. Rucker , 297 A.2d 4 00 (Del. Super. Ct. 1972), the tri al court in Delaware reverse d t he dismissal of the defenda nt’s DUI case by the Delaware Court of Common Pleas. The pert inent statute, as quoted in t he opinion states as fol lows: Any person who drive s, operat es, or has i n actual phys ical cont rol a motorvehic le whilesuch person’s bl ood has reached a blood alcohol concentrati on of 1/10 of 1% or more, by wei ght, as shown by a chem ical an alysis of a blood, breath , or urine sam ple tak en with in four(4 ) hours of the a lleged offens e, sha ll be gu ilty unde r this section.
Rucker , 297 A.2 d at 402
.

The Delaw are C ourt of C omm on Ple as fou nd tha t the D efend ant’s reading from the “Mobat” machine was 0.104. With a margin of error of as much as 0.0 09, the poss ibility was that the Defe ndan t had a n actu al bloo d alco hol-12-

concentrati on of 0.095. O n this bas is, the lowe r court dism issed th e c ase. In reversi ng, the trial court in Delaware hel d:
Under the terms of the statute, the tri er offact must determine whetherthe test res ults show the require d perc entag e of alc ohol in the blood. The trier o f fact is not free to disrega rd th e manda te of the statute o r to questi on the wisdom of the Gen eral As sem bly in provid in g that test res ults cons titute proof o f that elem ent of th e cri me . The possible variance i n results between vario us types of tests and the poss ible va riances i n readings bet ween tests taken while the accuse d was drivi ng and those taken af terwards may be an inherent weakness of the s tatutor y provis ions. The General Asse mbly could have c onsid ered th ese p ossib le varian ces w hen it enacted th e legis lation, but the legislation is s o worde d as to preclud e these factors from being co nsidere d as issu es of fact.
Rucker , 297 A.2d at 402- 03 (emphasis added)

Tennessee Code Annotated secti on 55-50-408 provides as foll ows:
Drivi ng under the infl uence -- For purpos es of thi s chapter and § 55-10-401, any person who dri ves , operates or exercises physical control of a co mmercial motor vehicl e with a bl ood alcohol concentrati on of point ze ro four (.04) or more commits the offense of driv ing whil e under the i nfluence of alcohol, in viol ation of § 55- 50-405.
Tennessee Code Anno tated s ection 55-10 -406( a)(1) p rovide s in part, “[a]ny

person who drives any motor vehicl e in the State of Ten ness ee sh all be deemed to have given consent to a test for t he pur pose o f dete rmining the alcoh olic or drug c ontent of t hat person’s blood;” Tennessee Code Annotated section 55-10-405(5) provides t hat “‘[ t]est’means any chemical test desig ned to determine the alcohol ic or drug contentof the bl ood. The specimen to be use d for such te st shall inclu de bloo d, urine or b reath.”-13- In State v. Snyder , 835 S.W.2d 30 (Tenn . Crim. App. 19 92), the defendantwas convicted of a viol ation of Tennesse e Code Annotated secti on 55- 50-408. He was operating a tractor t railer ri g and was s topped by an officer of the Tennessee Public Service Commission for a routine safety insp ecti on. Detecting an odor of alcohol and bloodshot eyes, as well as t wo (2) empty beer
cans and a partia lly f ull can of beerin the cabof the truck (a passenger was also inside), the offi cer administered an Intox imeter 3000 te st on the d efenda nt. The test was g iven twic e and each time re gistere d .04. A ll witnessesconcurred that the defendan t’s ability to drive was not visibly impaired. In fact , that case reflects thatthe Public

Service Commission of ficer or dered the defendant

to drive from t he scene of the i nspection to the Carter Count y Courthouse fo r administ ration of the in toxim eter test. In overruling the de fendant’s issue that the trial court erred by notcharging the jury that it had to fi nd him actuall y physical ly under t he influence of an intoxicant to return a gui lty ve rdict, our court hel d:

By enacting T.C. A. § 55-50-408, the legi slature mad e it a cri me to operate a commercial motor vehi cle with a blood alcohol conce ntration of p oint zero fo ur (.04) or m ore. Neith er the ne ed to prove impairment nor the rebuttable presumpti on c on tained in T.C.A. § 55-10-408 ap pli es in such cases. The language of t he statute is clear

and references to the other DUI pr ovis ions in t he code indicate that the l egislat ure intended t o create a hi gher standard of care for t hose who drive commercial motor vehicles. Snyder , 835 S.W.2d at 32.

In State v. Sensing , 843 S.W .2d 412 (Ten n. 1 992) , ou r su pre me court set forth new standards for a breath testto be admissible in court. In doing so, the court speci fically discussed t he Intoxi meter 3000 and noted t hat it had a systematic error of plus or minus f ive (5%) percent or 0.005 per cent weight to-14-

volume, whichever is grea ter. Wh ile acknowledging i n the context of DUI cases (which are not “per

se” DUI cas es ) that the scientific tests are co rroborative evidence which may exonerate as well asconvict an accused person in a close case, the supr

eme court furt her stated,
Indeed the purpose of all t he testingis to pro vide ob jective s cientific data to eli minate guesswork and spe culati on and to supplement t he fallibl e observations of humans. Sensing , 843 S.W.2d at 417.

I am inclined t

o accept the r

easoning of the courts i n State v. Lentini , 240 N.J.Super. 330, 573 A.2d 46 4 (1990 ), King v. C omm onwea lth , 875 S.W.2d 902 (Ky. App. 1993) , and State v. Rucker , 297 A.2d 40 0 (Del. Supe r. Ct. 1972), in light of the above -quoted provisions of our stat utory l aw and under the
reason ing expre ssed in th e Ten nesse e case s of Sensing and Snyder
.

Similar to N ew Jersey, our legisl ature has enacted statutes which reflect the impo rtance p laced up on curb ing th e probl em of driver s operating vehicles while und er the influe nce of into xicants. Spec if ically, an y driver in Tennessee has g iven his or her impli ed consent to be tested by blood , urine, or breath specimen when susp ected o f operating a v ehicle under

the infl uence of intoxicants. Tenn. Code Ann. §§ 55-10-405 - 406. Tennessee Code Annotated section 55- 50-408 is a “p er se” driving und er the influe nce statu te similar to the statutes in New J ers ey, Kent uck y, and Del awar

e. O ur s upreme court in Sensing has approve d the ad missibility into evidence of the Intox imeter 3000 result when
a proper found ation has bee n laid. Our court in Snyderhas already r ecognized-15-

the legisl ative i n tent to create a high er standard o f care for those wh o drive commercial motorvehicle s. As in Kent uck y, our leg isl atu re h as s poke n in terms of an alcohol concentrati on in the hundredths , rath er than in the thousandths. Similar to the situati on addressed by the Kentucky Court of Appeal s in King , the marg in of error of the Intoxime ter 3 0 00 is in t he thousandths r ather than t he hundredths. When read in pari mate ria , our statutes show a legisl ative i ntent that the properly ta ken test re sults of a sp ecime n of brea th cons titute proof of t he
necessa ry elem ent of b lood a lcoho l conce ntration . Ther efore, in this case there
was suffic ient evi dence to susta in Defendant’s con victi on upon an Intoxi meter 3000 re ading o f .04. This is sue is with out me rit.

In his other attack

upon the suff iciency of the evi dence, Defendant
ar gues t hat the convic tion sh ould b e reve rsed b ecau se the statute spea ks in terms of bloo d alco hol co ncen tratio n of .04 or more, and the Intoximeter 3000 machine gives th e resu lt by “weight of alcoholfor every

100 cc’s or

100 milliliters of blood.” Mr . Heaney, the superviso r of the bl ood alcohol pr ogram for Tennessee, testified that t he Intoxi meter 3000 measures the wei ght ofalcoh ol in the subject’ s blood, i.e. it is the weight of alcoh ol for every 100 cu bic centimete rs of blood. He fur

ther test ified t hat “blood al cohol concentr ation”is a general term thatcan m ean e ither vo lume of alco hol i n the blood or weight of alcohol i n the blood.

In a footnote t o Sensing , our supreme court recognized t hat the term b lo od alcoholcon cent rat ion isexp res sed in a percent age of we igh t by

vol ume based upon th e gram s of alcoh ol per 10 0 cubic c entime ters of bloo d.-16-

Specifically, the cour t stated “a B AC (blo od alcoh ol conce ntration) of 0 .10% w /v
means 0.10 grams of al cohol per100 cubi c ce nti mete rs of bl ood o r 0. 10 gr ams of alcohol per eve ry 210 liters of breath.” Sensing , 843 S.W.2d at 415, n. 2.

Under Sensing , the Defendant’s argument that thi s case should be dismissed becau se there was no t proof o f “bl ood alcohol concentrati on” is wit hout merit.
Having found Defendant’ s issues to bewithout merit, we aff irm the judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JOE G. RILEY, Judge