# FILED March 24, 1997 Cecil W. Crowson Appellate Cou rt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE ) FOR PUBLICATION ) ) FILED: MARCH 24, 1997 Appellee ) ) MARSHALL COUNTY V. ) ) HON. WILLIAM CHARLES LEE, JOHN FARRIS HUNTER, III ) JUDGE ) Appellant ) NO. 01-S-01-9605-CC-00083

For Appellant : For Appellee : WILLIAM C. BARNES, JR. JOHN KNOX WALKUP Columbia, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General WILLIAM DAVID BRIDGERS Assistant Attorney General Nashville, TN WILLIAM MICHAEL MCCOWN District Attorney General WEAKLEY E. BARNARD Assistant District Attorney Lewisburg, TN

OPINION

AFFIRMED BIRCH, C. J .1 The appellant is referenced in the re cord as both

“John F. Hunter” and “Farris John Hunter.” We will refer to him as he is described in the indictment: John Farris Hunter, III.

2 Tenn. Code Ann. § 55-10-401, -403.
3 State v. Sensing , 843 S.W.2d 412 (Tenn. 1992). 2 The Circuit Court of Marshall County entered judgme n t upon a jury verdict convicting John Farris Hunter, III, 1 the defend ant, o f driving while under the influence of an intoxicant (fourthoffense). 2 The trial court sentenced h im t o a nine-month workho use term and ordered the conditional forfeiture of his automobile. Additionally, the trial court pronounced judgment on
a jury-assessed fine of $5,000. The Court of Criminal Appeals affirmed.

We granted Hunter’s application for review i n or der to clarifywhether State v. McCaslin , 894 S.W.2d 310 (Tenn. Crim. App. 1994), modified the Sensing 3 rule, which requires a twenty-minute period of observation prior to the administration of a breathalcohol test . A fter careful consideration, we conclude that McCaslin did not modify Sensing and that the r equ irements of Sensing were met in th is c ase. Therefore, the judgment of the Court of Criminal Appeals is affirmed.

In State v. Sensing , 843 S .W.2d 412, 416 (Tenn. 1992), we established the prerequisites tha t m ust be met before the results of a breath-alcohol test may be admitted. Under Sensing , the State must establish that the subject was observed for twenty minutes prior to the test and that during this period the subject3

did not have foreign matter in his or her mouth, did not consume any alcoholic beverage, smoke, or regurgitate. Id.

In McCaslin , the intermediate court applied the “twentyminute observation” rule and concluded that the requirement had not been met. McCaslin , 894 S.W.2d at 311-312. The State argued that the observation by th e transporting officer in the patrol car should be considered in addition to the station-house observation. If allowed, the time would have exceeded the twenty-minute requirement. In McCaslin , however, the transporting officer could not testify with certainty regarding the defendant’s conduct while in the patrol car. Id. Thus, the Court of Criminal Appeals appropriatelyheld that the State had not sufficiently established the basis for the admission of the evidence under Sensing .

In the absence of a verbatimtranscript, the case before us has been submitted on a statement of evidence. That statement indicates, in pertinent part, that the arresting officer observed the defendant “for thirty minutes (30) prior to the administering to [sic, of] the breath test to insure that the Defendant had not regurgitated, belched, etc.” A different officer administered the test.
Obviously, the r atio nale of the observation rule is to ensure an accurate test result. If credible proof establishes that the subject did not have foreign matter in the mouth, d id no t consume any alcoholic beverage, and did not smoke or regurgitate,4

then the rule is satisfied regardless of whether the observer also administers the test.

We find this rule was satisfied in this case. Accordingly, t he jud gment of the Court of Criminal Appeals is affirmed.

________________________________________ ADOLPHO A. BIRCH, JR., Chief Justice
CONCUR: Drowota, Anderson, Reid, JJ.