# FILED
December 17, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE CRIMINA

L COURT OF APPEALS OF TENN ESSEE AT NASHVILLE SEPTEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9608-CC-00377 ) vs. ) Williamson County ) MARK BATEMA

N, ) Honorable Cornelia A. Clark, Judge ) Appellant. ) (Driving While Under the Influence) ) FOR THE APPE LLANT: FOR THE APPELLEE: E. Covington Johnston JOHN KNOX WALKUP 136 Fourth Avenue South Attorney General & Reporter Franklin, TN 37064 500 Charlotte Av enue Nashville, TN 37243-0497 DARYL J. BRAND Assistant Attorney General Criminal Justi ce Division 450 James Robertson Par kway Nashville, TN 37243-0493 JOSEPH D. BAUGH District Atto rney General MARK PURYEAR Assistant Dist . Attorney General P.O. Box 937 Franklin, TN 37065- 1608

OPINION FILED: _____________ AFFIRMED CURWOOD WITT, JUDGE2 OPINION

The defendant , Mark Bateman, appeals his Williamso n County Circuit Court conviction for driv ing under the influence of an into xicant. Having been convicted in a bench trial of viol ating Tennessee Code Annotated section 55-10- 401, the defendant received a six -month sentence which was fully suspended after he served five days, day-f or-day, in the county jail. H e was placed on unsupervised probation for eleven months, twenty-nine days, fined $350, and had his driver's license revoked for a year. O n appeal, the defendant complains that

(1) the results of the breath-alcohol test should have been excluded from the evidence and (2) the indictment

should have been dismissed because the d e fendant was denied the opportunity

to receive an independent blood- alcohol test. After review of the record and the briefs submitted by the pa rties, we affirm the judgment of the trial court.

The d efenda nt wrecked his automobile on Highway 96 East in Williamson County. When a state trooper arri ved at the scene of the one-car accident, the defendant was alone and admitted he was driving. The trooper, an experienced officer, testified wi thout objection that, contrary to the defendan t’s version of the accident that a tire blew out and

caused him to wreck, the accident appeared to have been caused when the defendant drove off the edge of the pavementand lost control of his vehicl e, c ausing him to careen acros s the road, travel down an embankment, and collide with some

trees. The trooper testified the defendant seemed d isorie nted, smelled of alcohol, and, w hile being questioned, the defendant vomited . After first denying he h ad been drinking, the defendant then admitted drinking a b eer . The trooper asked the defendant to perform the onelegged stand, a fiel d sobriety test. The defen dant attempted to perform a

s instructed but was unable to stand alone and h a d to be assisted by the officer to prevent his falling . The tro oper testified that, in his opi nion, the defendant was “extremelyintoxicated.” The trooper arrested the defendant and transported him to the jail. During the tr

ip, the defendant became loud and belligerent, causing the1 The trooper also testified the machi ne was functioning proper ly, he was a certified operator, and all operational procedur es were followed. The defendant has raised no issue concer ning any of these aspects of the t est.
3 trooper to stop and place handcuffs on the defendant.

After arriving at the j ail, the defendant signedan implied consent form for a breath-alcohol test. The t rooper was asked on cross-examinati on, “Did [the defendant] ask you about the blood test?”The officer testified he told the defendant that the defendant could go to the W illiamson Co unty Hos pital to t ake his own blood-alcohol test athis own expense. The troope r testified the defendant was not a sked to rinse his mouth between the vomiting and the administe ring of the breath-alcohol test on the Intoximeter 3000 machine, nor did the def endant request the opportunity to rinse his mouth. The trooper observ ed the defendant from 11:57 p.m. until 12:21 a.m. prior to administering the test . During this time, the defendant did not belch, eat, drink, v omit or have foreign matter in his mouth. 1 The test was administered and yielded a result of .15. The defendant of fe red no proof at the trial.

Prior

to trial, the

defendant challenged, through motions that appear in the technical record, th e admissibility of the br eath-alcohol test result, and further, he moved the dismissalof the indictment on the grounds that he was denied the right to obtain an independent blood test. The trial court overruled these motions after a hearing, but the proce edings and any evidence adduced duri ng the hearing were not pres

erved in the record on th is appeal.

At the conclusion of the bench trial, the trial judge found the defendant guilty of driving under the influence so as to be impaired, and sh e further found that, in addition to the breath-alcohol test result of .15, whic h s he ackn owledged to be “just an inference,” there was i ndependent circ umstantial evidence of the defendant’s guilt, i ncl uding the smell of alcohol on hi s person; the likelihood th e4

impairmentcaused the accident, in v iew of the defendant’s untruthfu lness about the cause; the defendant’s sickness and v omiting; his inabilit

y to ambulate without the officer’s assistance; his failure of the field sobriety test; and hi s bizar re beh avior during the trip to the j ail.

We review this cas

e upon the record preserved fro m the bench trial. As noted above, the record does not include the proceedings upon the defendant’s
mo tion to suppress and motion to dismi ss. To the extent the defendant i s challenging the

trial court’s disposition of these motions, his challenge fails at this point.

It is the appellant’s duty to ensure that the record on appeal contains all of the evidence relevant to those issues which are the bases of appeal. Tenn. R. App. P. 24(b); State v. Deborah Gladish , No. 02C01-9404-CC-00070, slip op. at 14-15 (Tenn. Crim. App., Jackson, Nov. 21, 1995), perm. app. denied (Tenn. 1996); State v. Banes , 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993). In the ab sence of such a record, the affected issues are waived. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). “In the absence of an adequate recor d on app eal, this court must presume that the trial court ’s ru lings were support ed by sufficient evidence.” Id.

We point out, however, th at the defendant also objected at tri al to the introduction of the breath-alco hol test results. Giv ing the defendant the benefit of the doubt, we will tr

eat the o bject ion as embracing both issu es now raised on appeal; however, the only evidence in the record which bears upon either issue is the trial testimony of the tr ooper.

The defendant’s complaint about the breat h test procedure is predicated upon his claim that thebreath sample taken subsequent to the vomiting and without a rinsing of his mouth was flawed and shoul d be suppressed. He bases5

his argument upon our supreme court ’s holdings in State v. McCaslin , 894 S.W.2d 310 (Tenn. Crim. App. 1994) and State v. Sensing , 843 S.W.2d 412 (Te nn. 1992). In Sensing , the test products of the Intoximeter 3000 , the machine used to test the defendant in the present case, wer e held to be admissible without the necessity of
a certi fied operato r testifying as to hi s knowledge of the “scientific tech nology involved in the function of the machine,” so l ong as the operator -witness could testify to prescribed operational or procedural facts, including the taking of certa in pre cautions t o assure the validity of the subject’s breath sample. Sensing , 843 S.W.2d at 416. These precautions are “ that t he motorist was observ ed for the requisite20 minutes prior to the test, and during

this period, he d id not have fore ign matter in his mouth, did not consume any al coholi c beverage, smoke, or regurgitate.” Id . In McCaslin , the DUI conviction w as reversed, based upo n the officer’ s fail ure to comply with the twenty-minute rule in that the accused was observed for only sixteenminutes. McCaslin , 894 S.W.2d at 311. T his court held that “the requirements establ ished in Sensing are a con d ition precedent to the admissibility of breath test results.” Id . at 312.

We acknowledge t he rule of McCaslin that the Sensing safeguards go to the admissib ility, rather than the weight, of the offered test results; however, unlike McCaslin where there was an undisputed failure to observe the defendant for the required twenty

minutes, in thepresentcase there is no proven violation of the Sensing requirements. It is unc ontroverted that the observ ation in excess of twent y minutes occur red an d that during the observ ation period none of the invali dating events occurred. Of course, it is also uncontroverted that the defend ant vomit e d appr oximatelyone hour prior to taking the test, but Sensing does not pur port t o invalidatea breath test result because the subject vomited at any time prior to taking the test. Common sense indicates that the selection of the tw enty-minute precautionary period was judicious ly imposed to protect against the skewing of test resultsdue to rec ent diges tive episo des exper ienced b y the accus ed. Obviou sly, other such episodes may well have occurred before the arrival and the supervisory6

presence of the officer. The possibility of these mor e remote episodes are taken into account by the adoption of the twenty-minute rule and are, therefore, irrelevant forour purposes, especia lly in the absence of proof showing tha t the vomiting actuallycaused some defect in the test results. There being no sho win g in the record that the test result was otherwise flawed, we affirm the trial court in overruling the Sensing -based objection to the admissi bility of these breath-tes t results.

Furthermore, had error been committed in allowing this evidence, we are certain that any such er ror would have been har mless. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). We are aware that in McCaslin this court reversed the trial court and declined to find harmless error in the wake of the Sensing violation. McCaslin , 894 S.W.2d at 312. However, i n McCaslin , we pointed out the difficulty in determin ing “the wei ght, if an y, given by a jury to an it em of evi dence.” Id

. (emphasi s added). Also, the McCaslin jury was charged under Tennessee Code Annotated section 55-10-408(b) (1993 ) (being the predecessor provision to current section 55-10-408(a)) that the test results created a rebuttabl e p resumpti on of intoxication, as opposed to a mere inference. See Sandstrom v. Montana , 442 U.S. 510, 99 S. Ct. 2450 (1979); Sta te v. Coker , 746 S.W.2d 167, 170 (Tenn. 1987) (invalidating

the use of the word “presumption” in jury instructions). However, in the presentcase, the trial judge w as the trier

of fact, and she affirmatively acknowledgedthat (1) the effect of Tenness ee Code Annotated section 55-10- 408(a) is to supply an inference only, and (2) there w as evidence independent of the test result sufficient to convict the defendant. The record supports the trial court in this last observation, and co nsequently, unlike the situation in McCaslin , we can discern the extent to which the trier of fact relied upon the test results. Had there been any Sensing error, it could not be v iewed as affecting the outcome. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

The defendant next asserts that he w as denied his right to o btain a blood test. See Tenn. Code Ann. § 55-10-410(e) (Supp. 1997). However, the only7

evidence before us is the trooper’s testimony,and the extent of that testimony o n the subject is the trooper’s answer to the question , “Did [the defendant] ask you about the blood test?” The trooper ackno wledged the question and testified hetold the defendant that he could obtain his ow n blood test at the Williamson County Hospital. The trooper denied that the defendant req uested a blood te st in li eu of a breath test. As such, the record reveals no request no r demand for a blood test. If the defendant had a desire to receive a bl ood test, the record does not r eflect that he made his desire known or that he otherwise did or said anything to initiate the procedure for the blood test.

We recogn ize tha

t, apart from sec

tion 55- 10-410(

e), a def e nd ant’s “due process rights [are] violated when the police interfere[ ] with the Defendant’s attempt to obtain evidence necessary to his defense.” State v. Livesay , 941 S.W.2d 63, 66 (Tenn. Crim. App. 1996) (emphas is added). In Livesa y , t he DUI arrestee requested his doctor to come to the jail in order to admin ister an independent blood test, but the police disallowed the test. In holding that this action of the police denied the accused his due process of law, we acknowle dged t hat ‘“there is no duty o r obligation on law enforcement officers to administer a blood test,”’ as long as they do not ‘“frustrate the reasonable efforts of an accused to obtain a timely sample of his blood....”’ Livesay , 941 S.W.2d at 66 (quoting with approval Brown v. Municipa l Court , 86 Cal. App. 3d 357, 150 Cal. Rpt r. 216, 219 (1978)) (inter nal citations omitted) (emphasis added).

In the present case, there is no ev i dence in the record that the officer(s) hampered or

obstructed any effort by the defendant to obtain a blood test. Moreo ver, there is no evidence that the defendant made any effort to obtain th e test. As such, the facts of the case fit more neatly within the language of State v. Choate , 667 S.W.2d 111 (Tenn.Crim. App. 1983). In Choate , we affirmed the DUI conviction and recognized the due pr ocess right of a DUI arr

estee to obtain h is own blood test at the place of inca rceration and that the right woul d be violated if the8

police interfered with the ex ercise of it. Choate , 667 S.W.2d at 112. It was pointed out in Choate that the defend ant did not request the opportunity to summon his doc toror otherwise to obta in a blood test. We adop ted the trial cou rt’s language which in part prov

ided: “There is no proof in the record that the police officers said anything or did anythingto indicate that they would interfere with the defendant if he wanted to call a do ctor or ot her qualif ied perso n to come down to the j a il and take a sample of his blood for testing. Clearly there was no interference with the r ight ofor the ability of

the defendant to have his own chosen test conduct ed at his o wn expense at the place of incarceration.” C hoate , 667 S.W.2d at 113. We held there was no affirmative obligati on on the police to make a blood test available to the acc used. Id . That holding controls the result in the present case. Based upon the proof in the record,there is no violation of the defendant’s statutory or due process rights.

The judgment of the trial court i s affirmed.

________

____________

_______ CURWOOD WITT, JUDGE

CONCUR:

_________________________________ GARY R. WADE, JUDGE

__________________________________ THOMAS T. WOODALL, JUDGE