FILED

March 24, 1997

Cecil W. Crowson

Appellate Court 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 record 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 judgment

upon a jury verdict convicting John Farris Hunter, III,1 the

defendant, of driving while under the influence of an intoxicant

(fourth offense).2 The trial court sentenced him to a nine-month

workhouse 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 in order to

clarify whether State v. McCaslin, 894 S.W.2d 310 (Tenn. Crim. App.

1994), modified the Sensing3 rule, which requires a twenty-minute

period of observation prior to the administration of a breathalcohol test. After careful consideration, we conclude that

McCaslin did not modify Sensing and that the requirements of

Sensing were met in this case. 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 that must 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 subject
3

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 the 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

appropriately held that the State had not sufficiently established

the basis for the admission of the evidence under Sensing.

In the absence of a verbatim transcript, 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 rationale 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, did not

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, the judgment of the Court of Criminal Appeals is

affirmed. 

________________________________________

ADOLPHO A. BIRCH, JR., Chief Justice

CONCUR:

Drowota, Anderson, Reid, JJ.