FILED

October 16, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MARCH SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9605-CC-00209

)

Appellee, ) COFFEE COUNTY

)

)

V. ) HON. GERALD L. EWELL, SR.,

) JUDGE

MARK T. SCISNEY )

) (DUI WHILE DRIVING 

Appellant. ) COMMERCIAL VEHICLE)

FOR THE APPELLANT: FOR THE APPELLEE:

ROBERT S. PETERS JOHN KNOX WALKUP 

Swafford, Peters & Priest Attorney General & Reporter

100 First Avenue, S.W.

Winchester, TN 37398 DEBORAH A. TULLIS

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0493

C. MICHAEL LAYNE 

District Attorney General

STEPHEN E. WEITZMAN

Assistant District Attorney General

307 South Woodland 

P.O. Box 147

Manchester, TN 37355 

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
-2-

OPINION

A Coffee County jury found Defendant guilty of driving under the

influence while operating a commercial motor vehicle in violation of Tennessee

Code Annotated section 55-50-408. He appeals as of right pursuant to Rule 3,

Tennessee Rules of Appellate Procedure. In a two (2) prong attack upon the

sufficiency of the evidence, Defendant argues that the State failed to prove that

his blood alcohol concentration was .04 or more, and also argues that the

evidence was insufficient as the State proved his “alcohol by weight” rather than

his blood alcohol concentration as required by the statute. The judgment of the

trial court is affirmed.

When an accused challenges the sufficiency of the convicting

evidence, the standard is whether, after reviewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979). Questions concerning the credibility of the witnesses,

the weight and value to be given the evidence, as well as all factual issues raised

by the evidence, are resolved by the trier of fact, not this court. State v. Pappas,

754 S.W.2d 620, 623 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn.

1987). Nor may this court reweigh or reevaluate the evidence. State v.

Cabbage, 571 S.W .2d 832, 835 (Tenn. 1978). 
-3-

A jury verdict approved by the trial judge accredits the State’s

witnesses and resolves all conflicts in favor of the State. State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is entitled to the strongest

legitimate view of the evidence and all inferences therefrom. Cabbage, 571

S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence

and replaces it with a presumption of guilt, the accused has the burden in this

court of illustrating why the evidence is insufficient to support the verdict returned

by the trier of fact. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); Grace,

493 S.W.2d at 476.

At approximately 1:00 a.m. on October 14, 1994, Defendant was

operating an “18-wheeler” truck when he drove through the weigh station on the

westbound side of Interstate 24 in Coffee County. Tim Garner, an officer with the

Tennessee Public Service Commission at the time, was on duty and decided to

check Defendant for his driver’s license, log book, and medical certificate.

According to Officer Garner, such random checks were a part of his duties and

responsibilities. Defendant was given a signal to drive his truck around to the

back of the checking area. After opening the door to Defendant’s vehicle, Garner

immediately smelled the odor of an intoxicating beverage. Garner requested his

partner, Officer Slatton, to come and confirm the odor, and then to administer an

alcohol breath test to Defendant using the Intoximeter 3000 machine located at

the weigh station complex. Garner could not administer the test because he was

not certified to do so, but Officer Slatton was properly certified to operate the

Intoximeter 3000. 
-4-

The record reflects that the Intoximeter 3000 test was properly

administered pursuant to the requirements of State v. Sensing, 843 S.W.2d 412

(Tenn. 1992). The test result registered by the machine was .04. The only other

proof of consumption of alcohol by Defendant was the odor of an intoxicant

smelled by the officers and the Defendant’s statement at the scene that he had

consumed a couple of “tall beers” in Georgia “before he left.”

At trial, the State produced the testimony of William Heaney, Jr., and

Officers Garner and Slatton. Defendant did not testify and offered no proof. Mr.

Heaney was the supervisor of the breath alcohol program for the State of

Tennessee through his employment in the Forensic Services Division of the

Tennessee Bureau of Investigation. As part of his employment duties, Heaney

was required to regularly check and monitor the accuracy of Intoximeter 3000

machines throughout the state which are monitored by the T.B.I., including the

machine used to test the Defendant on the night of his arrest. According to

Heaney, each Intoximeter 3000 machine has a deviation rate of plus or minus

.005 or plus or minus five (5%) percent, whichever is greater. In addition,

Heaney noted that the machine is program ed to automatically round downward

to the nearest hundredth after it has interpreted the test. For instance, if the

machine interprets a blood concentration by weight of .049999, it would print out

a result of .04.

Heaney testified that the particular 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” them
-5-

into the machine using “a simulator of known alcohol concentration.” During the

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 was

also reading low when a known sample of .100 gave a result of .0976. 

During the October 25, 1994 test, the 0.025 standard was run

through the machine and it gave the result of 0.0262. When the .100 standard

was submitted to the machine on October 25, 1994, it gave a result of .0985.

Therefore during the two regular monitorings of the machine, before and after

Defendant’s arrest, the machine was reading both high and low, but within the

acceptable tolerance of plus or minus .005. 

From the proof in this record, we discern that a .04 reading on the

Intoximeter 3000 can result from actual blood alcohol concentrations ranging

from .035 to .054. We arrive at this conclusion from the following analysis of the

evidence. If the machine is reading “high” .005, a .035 actual blood alcohol

concentration would be interpreted and reported as a .04 by the Intoximeter

3000. If the machine were reading “low” .005, an actual blood alcohol

concentration by weight of .054 would be interpreted by the machine as .049 and

reported as a .04 after automatically rounding downward to the nearest

hundredth. It is not clear at all in the record why the machine gives a result in the

ten-thousandths when being monitored, but only in the hundredths when being

used to test persons suspected of being under the influence of alcohol.
-6-

Based on the record, it appears that, when carried to the

thousandths, a .04 printout could be the result of twenty (20) different blood

alcohol concentrations. Five (5) of those (.035 - .0359) would be below .04. 

Defendant alleges that based upon the proof in this record, the State

failed to prove beyond a reasonable doubt that he was guilty of the crime charged

since there is a distinct mathematical possibility that his blood alcohol

concentration was less than .04. The issue presented by Defendant is apparently

one of first impression in Tennessee. Neither the State nor the Defendant in this

appeal have cited or relied upon any cases from other jurisdictions which address

this precise issue.

However, we have been able to find cases from other jurisdictions

which have dealt with the issue. Some of these cases have taken the position

urged by Defendant. In State v. Boehmer, 1 Haw. App. 44, 613 P.2d 916 (1980),

two (2) separate cases were consolidated for appeal. In each case, the

Defendant was arrested for driving under the influence and given a breathalyzer

test. Defendant Boehmer’s test showed .11 weight of alcohol and Defendant

Gogo’s test result was .10 weight of alcohol in the blood. In both cases, the

undisputed proof was that the particular breathalyzer machine had a margin of

error of 0.0165. The statute involved was not a “per se” statute as found in

Tennessee Code Annotated section 55-50-408, but rather provided that if a

defendant had .10 or more by weight of alcohol in his or her blood, it created a

presumption that the defendant was under the influence of intoxicating liquor.

The Hawaii Court of Appeals recognized that it was apparent the trial judge relied
-7-

upon the breathalyzer test as creating a presumption of each defendant’s state

of intoxication. The court reversed and remanded both cases and specifically

held: 

The failure of the prosecution to establish beyond a reasonable

doubt that the actual weight of alcohol in defendant’s blood was at

least .10% required the trial judge to ignore the statutory

presumption in its determination.

Boehmer, 613 P.2d at 918.

In State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839 (1978), the

defendant appealed from his conviction of operating a motor vehicle while having

.10 percent alcohol by weight in this blood. The Nebraska Supreme Court noted

that there was no evidence of the defendant’s intoxication to sustain a conviction

other than the results of the blood test. The arresting officer observed that the

defendant had an odor of alcohol on his breath and that there was a partially filled

wine bottle found at the scene. The results of the defendant’s blood test was .10

percent of alcohol by weight. The expert who testified at trial stated that this

result was accurate “within five thousandths [.005] of a percent.” The Supreme

Court of Nebraska reversed the conviction and dismissed the case. In doing so,

the court held:

While the Legislature has the acknowledged right to prescribe

acceptable methods of testing for alcohol content in body fluids and

perhaps even the right to prescribe that such evidence is admissible

in a court of law, it is a judicial determination as to whether this

evidence is sufficient to sustain a conviction, if the evidence is

believed. The Legislature has selected a particular percent of

alcohol to be a criminal offense if present in a person operating a 
-8-

motor vehicle. It is not unreasonable to require that the test,

designed to show that percent, do so outside of any error or

tolerance inherent in the testing process.

Bjornsen, 271 N.W.2d at 710-11.

In Haynes v. State, Department of Public Safety, 865 P.2d 753

(Alaska 1993), the Appellant Haynes’ driver’s license was revoked under Alaska

law because following his arrest for driving while intoxicated, the result of an

Intoximeter 3000 test showed a reading of .106 grams of alcohol per 210 liters

of breath. Alaska statutes permitted revocation of a driver’s license upon a

chemical test producing a result of .10 or more. In that case, the testimony at trial

was that the Intoximeter 3000 had a recognized margin of error of .01 grams per

210 liters of breath. The Alaska Suprem e Court reversed the revocation of Mr.

Haynes’ driver’s license. That court held that based upon the Alaska

Constitution, it was a violation of due process to revoke a person’s driver’s

license when the inherent margin of error of the testing device was not applied

in favor of the person subject to license revocation. Haynes, 865 P.2d at 756.

Other jurisdictions have held that a similar margin of error does not

require a conviction to be reversed based upon insufficiency of evidence. In

State v. Lentini, 240 N.J.Super. 330, 573 A.2d 464 (1990), the Superior Court of

New Jersey, Appellate Division, addressed the issue wherein the defendant was

given two (2) breathalyzer tests, where both readings were exactly .10. In New

Jersey at the time, the defendant was convicted under a statute which made it a

criminal offense to operate “a motor vehicle with a blood alcohol concentration

of 0.10% or more by weight of alcohol in the defendant’s blood . . . .” Both the 
-9-

defendant’s expert witness and the trooper who arrested the defendant testified

that the breathalyzer had an accuracy of plus or minus 0.01%. The court noted

that the reading of 0.10 reflected a blood alcohol concentration anywhere

between .09 and .11 percent. The New Jersey Court stated that the precise

issue was whether the .10 reading from the properly operated and functioning

machine was sufficient to support a conviction under the applicable statute in light

of the 0.01% tolerance. That court deemed the issue to present a question of

legislative intent. It analyzed several statutes in New Jersey which are similar to

Tennessee Code Annotated section 55-10-408 (inference which can be raised

by .10 percent by weight of alcohol in blood), Tennessee Code Annotated section

55-10-406 (implied consent law), and Tennessee Code Annotated section 55-10-

405 (chemical test for alcohol content may include specimen of blood, urine, or

breath). The New Jersey Court rejected the defendant’s argument that the

inherent margin of error of the breathalyzer machine, where the result reported

was .10, prevented the State from proving the offense beyond a reasonable

doubt. The New Jersey Court held:

In the present case, defendant seeks to blunt the Legislature’s

resolve by giving new vigor to the probative value of expert

testimony in the interest of eliminating a possible deviation of 1/100

of a percent. If defendant’s contention is adopted, the presumptions

established by N.J.S.A. 39:450.1(1) and (2), (see footnote one,

supra) as well as the per se bright line of 0.10% would have to be

adjusted in derogation of the statutes’ objective standards. The

adjustment would have to be made on a case-by-case basis

depending on the expert testimony introduced in each case. No

expert is bound by the opinion evidence in the present case

regarding any breathalyzer’s margin of deviation. Thus, the carefully

construed regulatory scheme will in many cases again become a

battle of the experts. As Tischio [State v. Tischio, 107 N.J. 504,

527 A.2d 388 (1987)] demonstrated, that would be inconsistent with

the Legislature’s intent.
-10-

Moreover, if it cannot be determined, as appears to be the

case, whether the tolerance is to be added to or subtracted from the

breathalyzer reading, then, contrary to the statute, a 0.11% reading

will be required to establish the per se violation.

Lentini, 573 A.2d at 467.

In King v. Commonwealth, 875 S.W.2d 902 (Ky. App. 1993), the

defendant was convicted for a “per se DUI.” The Intoxilyzer 5000 machine was

used to test the defendant’s blood alcohol concentration and gave a result of

.100. There was uncontradicted evidence at trial that the particular machine’s

margin of error was plus or minus .005. In the appeal, the defendant alleged that

his rights to due process of law were violated when he was denied a directed

verdict for acquittal given the fact that the results admitted into evidence were

within the m argin of error. 

The Kentucky Court of Appeals stated the issue to be:

[I]s an Intoxilyzer 5000 reading of .100 sufficient, probative evidence

to prove beyond a reasonable doubt that a person has an ‘alcohol

concentration in his blood or breath of .10 or more’ as required by

KRS 189A.010(1)(a) when the intoxilyzer machine in question has

a margin of error of plus/minus .005? We think that it is and affirm

the Circuit Court.

King, 875 S.W.2d at 902.

The Kentucky Court of Appeals noted that in our imperfect world,

any machine, including intoxilyzers, would have a margin of error. The court then

addressed the question of how much of a margin of error would be tolerated 

before a reading would no longer be credible or be of any probative value. While
-11-

agreeing that the margin of error of the machine should be considered in

determining the probative value of the machine’s results, the court noted that the

admissibility of the evidence based upon the reliability of the machine was an

issue for the trial judge. In reaching its conclusion, the Kentucky Court of

Appeals held,

The .005 margin of error leaves the possibility of the absolute true

reading to fall within the range of .095 to .105. That is a possibility

of five thousandths above or below a true reading. Where the

Legislature speaks in terms of an alcohol concentration of .10, they

merely went into the hundredths . . . . To exclude a reading with a

possible error of five thousandths would be requiring the

Commonwealth to prove in the realm of beyond “any” doubt [as

opposed to proving beyond a reasonable doubt]. 

King, 875 S.W.2d at 903 (emphasis added).

In State v. Rucker, 297 A.2d 400 (Del. Super. Ct. 1972), the trial

court in Delaware reversed the dismissal of the defendant’s DUI case by the

Delaware Court of Common Pleas. The pertinent statute, as quoted in the

opinion states as follows:

Any person who drives, operates, or has in actual physical control

a motor vehicle while such person’s blood has reached a blood

alcohol concentration of 1/10 of 1% or more, by weight, as shown by

a chemical analysis of a blood, breath, or urine sample taken within

four (4) hours of the alleged offense, shall be guilty under this

section. 

Rucker, 297 A.2d at 402. 

The Delaware Court of Common Pleas found that the Defendant’s

reading from the “Mobat” machine was 0.104. With a margin of error of as much

as 0.009, the possibility was that the Defendant had an actual blood alcohol 
-12-

concentration of 0.095. On this basis, the lower court dism issed the case. In

reversing, the trial court in Delaware held:

Under the terms of the statute, the trier of fact must determine

whether the test results show the required percentage of alcohol in

the blood. The trier of fact is not free to disregard the mandate of

the statute or to question the wisdom of the General Assembly in

providing that test results constitute proof of that element of the

crime. 

The possible variance in results between various types of

tests and the possible variances in readings between tests taken

while the accused was driving and those taken afterwards may be

an inherent weakness of the statutory provisions. The General

Assembly could have considered these possible variances when it

enacted the legislation, but the legislation is so worded as to

preclude these factors from being considered as issues of fact. 

Rucker, 297 A.2d at 402-03 (emphasis added)

Tennessee Code Annotated section 55-50-408 provides as follows:

Driving under the influence -- For purposes of this chapter and §

55-10-401, any person who drives, operates or exercises physical

control of a commercial motor vehicle with a blood alcohol

concentration of point zero four (.04) or more commits the offense

of driving while under the influence of alcohol, in violation of § 55-

50-405.

Tennessee Code Annotated section 55-10-406(a)(1) provides in

part, “[a]ny person who drives any motor vehicle in the State of Tennessee shall

be deemed to have given consent to a test for the purpose of determining the

alcoholic or drug content of that person’s blood;” Tennessee Code Annotated

section 55-10-405(5) provides that “‘[t]est’ means any chemical test designed to

determine the alcoholic or drug content of the blood. The specimen to be used

for such test shall include blood, urine or breath.”
-13-

In State v. Snyder, 835 S.W.2d 30 (Tenn. Crim. App. 1992), the

defendant was convicted of a violation of Tennessee Code Annotated section 55-

50-408. He was operating a tractor trailer rig and was stopped by an officer of

the Tennessee Public Service Commission for a routine safety inspection.

Detecting an odor of alcohol and bloodshot eyes, as well as two (2) empty beer

cans and a partially full can of beer in the cab of the truck (a passenger was also

inside), the officer administered an Intoximeter 3000 test on the defendant. The

test was given twice and each time registered .04. All witnesses concurred that

the defendant’s ability to drive was not visibly impaired. In fact, that case reflects

that the Public Service Commission officer ordered the defendant to drive from

the scene of the inspection to the Carter County Courthouse for administration

of the intoximeter test. In overruling the defendant’s issue that the trial court

erred by not charging the jury that it had to find him actually physically under the

influence of an intoxicant to return a guilty verdict, our court held:

By enacting T.C.A. § 55-50-408, the legislature made it a

crime to operate a commercial motor vehicle with a blood alcohol

concentration of point zero four (.04) or m ore. Neither the need to

prove impairment nor the rebuttable presumption contained in

T.C.A. § 55-10-408 applies in such cases. The language of the

statute is clear and references to the other DUI provisions in the

code indicate that the legislature intended to create a higher

standard of care for those who drive commercial motor vehicles.

Snyder, 835 S.W.2d at 32.

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

court set forth new standards for a breath test to be admissible in court. In doing

so, the court specifically discussed the Intoximeter 3000 and noted that it had a

systematic error of plus or minus five (5%) percent or 0.005 percent weight to 
-14-

volume, whichever is greater. While acknowledging in the context of DUI cases

(which are not “per se” DUI cases) that the scientific tests are corroborative

evidence which may exonerate as well as convict an accused person in a close

case, the supreme court further stated,

Indeed the purpose of all the testing is to provide objective scientific

data to eliminate guesswork and speculation and to supplement the

fallible observations of humans.

Sensing, 843 S.W.2d at 417.

I am inclined to accept the reasoning of the courts in State v. Lentini,

240 N.J.Super. 330, 573 A.2d 464 (1990), King v. Commonwealth, 875 S.W.2d

902 (Ky. App. 1993), and State v. Rucker, 297 A.2d 400 (Del. Super. Ct. 1972),

in light of the above-quoted provisions of our statutory law and under the

reasoning expressed in the Tennessee cases of Sensing and Snyder. 

Similar to New Jersey, our legislature has enacted statutes which

reflect the importance placed upon curbing the problem of drivers operating

vehicles while under the influence of intoxicants. Spec ifically, any driver in

Tennessee has given his or her implied consent to be tested by blood, urine, or

breath specimen when suspected of operating a vehicle under the influence of

intoxicants. Tenn. Code Ann. §§ 55-10-405 - 406. Tennessee Code Annotated

section 55-50-408 is a “per se” driving under the influence statute similar to the

statutes in New Jersey, Kentucky, and Delaware. Our supreme court in Sensing

has approved the admissibility into evidence of the Intoximeter 3000 result when

a proper foundation has been laid. Our court in Snyder has already recognized
-15-

the legislative intent to create a higher standard of care for those who drive

commercial motor vehicles. As in Kentucky, our legislature has spoken in terms

of an alcohol concentration in the hundredths, rather than in the thousandths.

Similar to the situation addressed by the Kentucky Court of Appeals in King, the

margin of error of the Intoximeter 3000 is in the thousandths rather than the

hundredths. When read in pari materia, our statutes show a legislative intent that

the properly taken test results of a specimen of breath constitute proof of the

necessary element of blood alcohol concentration. Therefore, in this case there

was sufficient evidence to sustain Defendant’s conviction upon an Intoximeter

3000 reading of .04. This issue is without merit.

In his other attack upon the sufficiency of the evidence, Defendant

argues that the conviction should be reversed because the statute speaks in

terms of blood alcohol concentration of .04 or more, and the Intoximeter 3000

machine gives the result by “weight of alcohol for every 100 cc’s or 100 milliliters

of blood.” Mr. Heaney, the supervisor of the blood alcohol program for

Tennessee, testified that the Intoximeter 3000 measures the weight of alcohol in

the subject’s blood, i.e. it is the weight of alcohol for every 100 cubic centimeters

of blood. He further testified that “blood alcohol concentration” is a general term

that can mean either volume of alcohol in the blood or weight of alcohol in the

blood.

In a footnote to Sensing, our supreme court recognized that the term

blood alcohol concentration is expressed in a percentage of weight by volume

based upon the grams of alcohol per 100 cubic centimeters of blood. 
-16-

Specifically, the court stated “a BAC (blood alcohol concentration) of 0.10% w/v

means 0.10 grams of alcohol per 100 cubic centimeters of blood or 0.10 grams

of alcohol per every 210 liters of breath.” Sensing, 843 S.W.2d at 415, n. 2.

Under Sensing, the Defendant’s argument that this case should be

dismissed because there was not proof of “blood alcohol concentration” is without

merit.

Having found Defendant’s issues to be without merit, we affirm the

judgment of the trial court.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOSEPH M. TIPTON, Judge

___________________________________

JOE G. RILEY, Judge