# FILED
June 18, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE JANUARY

1997 SESSI ON

STATE OF TENNESSEE, * C.C.A. # 03C01-9605-CC-00199

Appellee, * JEFFERSON COUNTY VS. * Hon. Ben W. Hooper, II, Judge JERRY WAYNE EDI SON, * (DUI)

Appe llant. *

For Ap pellant: For Appellee: Lu Ann Ballew Charles W. Burson Asst. Publi c Defender Attorney General& Reporter P.O. Box 416 Dandridge, TN 37725 Michae l J. Fahey , II Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243-0493 James L. Gass Assistant Distri ct Attor ney General P.O. Box 70 Dandridge, TN 37725-0070
OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, JUDGE1 While some court documents refer to the defendant as " Jerry Wayne Eidson, " it is the poli cy of this cou rt to use the defend ant's nam e as it is listed on the indictm ent. 2 OPINION A jury found the defendant, Jerry Wayne Edison, 1 guilty of DUI; the trial court imposed a sentenc e of eleven months and twenty -nine days, suspended after the service of seven days in jail, and rev oked the defendant's license for one year. The sole issue on appea l is whether the tri al court erred by admitting the results of the defendant's breath test into evidence at trial.

At appro ximately 3 :30 a.m. on Februa ry 17, 1994 , Office r Steve Manning of the Jefferson Co unty Sheriff' s Department was o n patrol in Dandri dge when he saw a stalled car sitting in the traveling lane of a roadway. Two individuals were trying to push the car to the shoulder. Officer Manning approached the defendant, who was the driv er of the stalled vehicle,and detected a strong odor of alcohol. The defendant was placi ng chewing tobacco i n his mouth. As the other individual returned to the passenger side of the veh icle, the officer directed the defendant to get out of his vehicl e and to remove the tobacco from his mouth. The defendant, who admitted that he had consu med a few beers, failed the finger tip to nose test, the standing on one foot ba lance test, and the hand and eye c oordination test. Officer Manning then pl aced the defendant under arrest.

Officer Merlin Foister t

estified that he had been trained by the TBI to operate the Intoximeter 3000 br eath machine. Over objecti on by the defense, the officer was allowed to t estify that the defendant regis tered a blood alcohol lev el of .12.
The defendant's sister, Carol H atley, testified for the defense. S he claimed that the defendant had spent the day at her house. She related that her3 son, Mark Wade, left with the defendant around 6:30 i n the evening. She testified that she saw her son the next day but has not seen him since because of his "drinking problems."

The defendant testified tha t when he was arrested, he had a valid Florida driver's

license. He claimed that he and his nephew had been to Cott on Eyed Joe's in Knoxville where he had had two beers and some snack foods. He maintained that he drove from Knox ville to Dandridg e without any difficulty but then had car trouble. He said that he and his nephew wer e pushing the car out of the road when Officer Manning a rrived. His nephew had a beer in his possessi on. The defendant contended he had difficulty w ith the field sobriety tes ts because the end of his big toe on his rig ht foot had been cut off in a lawnmower accident. Medical records confirmed this. The defendant i nsisted that his driv ing had not been impaired.
On appeal, the defendant argues the tr ial court erred by admi

tting the breath t est eviden ce. He asse rts that O fficer F oister's testimo ny should not have been allowed under the test e stablished in State v. Sensing , 843 S.W.2d 412 (Tenn. 1992).

Prior to Sensing , a prerequisite to the ad missibility of the test results was that the operator had to "know the scientific techno logy involve d in the function of the machine." Id. at 416. Our supreme court "r elax[ed] the rigorous

prerequisites formerly required to authenticate the reliabilit y of the scientific equipment ...." Id. Although the te sting officer d oes not have to te stify about the "scientific te chnology involved," he must be able to testify to the followi ng: (1) that the tests wer

e performed in accordance with the standards and operating proc edure promulgated by the forensic services div

ision of the Tennessee Bureau of4 Investigation; (2) that [the testing officer] was properly certified in accordance with those standards; (3) that the evidentiar

y breath testing inst rument used was certified by the for ensic services div

ision, was tested regularly for accur

acy and was work

ing properly w

hen the breath test was performed; (4) that the motorist w

as observed for the requi site 20 minutes prior to the test, and during this period, he did not have fore ign matter in his mouth,did not cons ume any alcoholic bever

age, smoke, or regurg itate; (5) evidence that [the te sting officer] followed the prescribed operational pr ocedure; and (6) [that the testing officer] identify the printout record offered in evidence as the result of the test given to the person tested. Id. In State v. Bobo , 909 S.W.2d 788, 79 0 (Tenn. 1995), our supreme court described Sensing as "establish[ing] the pr erequisites for threshol d admissibility of breath alcohol test result s."

In State v. McCaslin , 894 S.W.2d 310 (Tenn. Crim. App. 1994), the testing officer was unable to testify that he had watc hed the defendant for the requisite twenty

minutes; in consequence, the t est results were found ina dmissible. In McCaslin , the officer had placed the defendant in the p atrol car at 2:20 a.m., arrived at the police station at 2:30 a.m., and administe red the test at 2:46 a.m. Id. at 311. The "undisputed period of observ ation" was sixteen min utes. Id. Our court held that the time the defendant was in the patrol car could not be considered because the officer could not "say with certainty that the defendant did not regurgitate while out of his view in the backseat of the patrol car from 2:20 a.m. until they arrived at the s

tation." Id. at 311-12.

In McCaslin , the state had argued that the test results should nevertheless have been admi tted because the defendant did not present any5 evidence that he had in fact reg urgitated. This court r esponded to that argument as follows: [T]he State's position is misplaced as it is the State's

burden, not the defendant's, to present testimony through the testing officer that the Sensing pre-test requirements were met. Therefore, a claim that the defendant either presented or failed to present testimony of regurgitation is i rrelevant in this ca se. Id. at 312.

In Bobo , our supreme court reaffirmed the Sensing requirements; the state had conceded that the operational proce dures for administering the test were not followed but argued that the result should have been a llowed because the procedural deviation benefit ted the defendant by giving a lower reading. O ur supreme court rejected that ar gument: Courts admit competent, reli able evidence to assure a fair, just result. Rules of admissibility must be applied uniformly and univ ersally, regardl ess of the outcome. Here the state failed to meet the th reshold requirements for admitting the results of defend ant's breath alcohol test. The trial court was correct in suppressing the results. Bobo , 909 S.W.2d at 790.

The six requirements i n Sensing are mandatory and must be "scrupulously follow

ed." State v. Harold E. Fie lds , No. 01C01-9412-CC-00438, slip op. at 4 (Tenn. Crim. App., at Nashville, Apr. 12, 1996). Further, it is the state's burden to establish compliance with each of the requir ements; the defendant does not bear any burden to show non-compliance.
To properly review

this issue it is neces

sary to consider Officer Foister's testimony i n some detail. He testified that he had been trained by the TBI to operate the Intoximeter 3000 breath machine. When asked if the machine was6 "certified as properly o perating by the Tennessee Bur eau of Investigation," he responded affirmatively. When asked if he follow ed the "proper procedures," he responded affirmatively. When asked "from all the information you used to operate that machine and your traini ng, was it operated pr operly at the time," he res ponded affirmatively. When asked what steps he had taken with the defendant, the following testimony ensued:

Officer Foister: [T]he first thi ng we do is, we had to observe him for twenty minutes. That's no cigaret tes, no food, n o nothin g, intake . ... [A]f ter that' s done, t hen we print everything

in the machine. ... [W]e print the name, date of birth, driver's license number, whether he was involved in an accident, the time, the arresting officer, all that's typed in. ... So after everything's in the machine, we hit, it starts and it purges itself, it cleans its whole system. ... So ... the machi ne tells us when we' re ready to blow. Gen. Gass: And it did that i n this case? Officer Foister: Yeah.

Before the officer testified as to the results of the breath test, defense counsel was permitted to c onduct a voir dire. The officer then acknowledged that he did not have the TBI's certi fication of the intoximeter; he ex plained that the document had been posted at the jail on the night of the defendant's arrest . The officer testified that the machine is calibrated every three months: "I'd have to bri ng all the records over here to give you the dates." When asked if he could "testify as to when the last time this machine was calibrated before [the defendant] was brought in," he responded in the negative. He also i ndicated he did not know w hen "the last time ... a maintenance ch eck had been done on this machine to i nsure that it was functioning properly." When asked if he could recall w hether he followed the normal procedures in testi ng the defendant, the officer responded, "Well, I'm sure I followed the procedures, but I can't remember."7 The defendant argues the off icer's testimony failed to establish Sensing requirements (1), (3), and (5). Requirement (1) is that the tests were performed in accordance with the standards and operating procedure promulgated by the forensic servi ces division of the Tennessee Bu reau of Investigation. Officer Foister testified that the machi ne had been certified as operating in compliance with the proce dures est ablished by the Ten nessee B ureau of Investiga tion. In o ur view, that is enough.

Requirement (3) is that the evidentiary bre

ath testing instrument w as certified by the forensic s ervices divisi on, was tested regular ly for accuracy, and w

as working properly

when the breath test w as performed. Officer Foister tes tified that the documentation of certification w as posted by the machine w hen he tested the defendant; he asserted that the machine i s "checked every thr ee months" but was uncertain as to when the machine was calibrated or last subjected to a mainten ance check. Sensing , in our view, does not require that the officer r elate the last date the machine was tested; it only requires that the officer testify that the machin e is regularly tested. The state established that. Moreover, although there was no direct declaration that the machine w as working properl

y, the officer's testimony implied that.
Requirement (5) direc ts the examiner to follow the prescribed operational procedures. On cross-examination, the officer candidly admitted that he could not remember whether he followed the procedures or not. At the hearing on the motion for new trial, the trial judge character ized the issue as follow s: [I]t appears to me that there coul d be some questions raised that may need to be res olved. I would think

that this certainly is not the first case where an officer was not able to remember precisely what took place, and I don't know whether that testimony amounts to a finding that whatever took place w

as certainly not proper

procedure. I don't think I would w

ant to go that far. It's a q uestion of2 Oth er sta te juris dictio ns, h owe ver, h ave u sed a high er sta nda rd fo r varyin g type s of s cien tific evidence. I n City of Jackson v. Langford , 648 S.W .2d 927, 929 (Mo. App. 1983 ), the Missouri court required t hat the rel iabil ity of radar tests be establ ished "bey ond a reasonable dou bt." Texas has t he followi ng rule for

"novel sci entifi c evidence": "The proponent of the eviden ce must prove to the trial judge, by

clear and convi ncing evi dence and outside the presence of the jury, that th e proffered evidenc e is reliable an d therefo re relevan t." Cam pbell v. State , 910 S.W.2d 475, 478 (Tex. Cri m. App. 1995), cert. deni ed , 116 S. Ct. 1430 (1996). 8

what effect does that type testimony have on the State's burden of proof. Of course it's far from s aying yes, I didn't do so-and-so. Anyway, the Motion [for New Trial] is overruled. We conclude from this that the trial judge made a factual determination that the officer did not remember what pr ocedures he followed in testing the defendant.
Officer Foister's testimony on the fifth requirement raises evident iary issues of first impression. First, we must determine by what standard of proof must the state establish that the Sensing requireme nts have b een met. Secondly, we must determine what is the ap propriate standard of appellate r eview of the trial judge's decision to admit the evidence. It has not been necessary to resolve these issues in prior case s interpreting Sensing because the proof in the prior c ases established that certain of the pr ocedures had not been followed. See, e.g. , Bobo , 909 S.W.2d at 790 (state conceded that "prescribed operational procedure was not followed"); McCaslin , 894 S.W.2d at 311 (the "undisputed period of observ ation ... of sixteen minutes" was i nsufficient to meet the twenty minutes observation requirement). Because the proof here was not overwhelming in either direction, it is necessary to determine the applicable burden of proof and our sc ope of review.
Initially, we hol d that the state must establish b y a preponderance of the evidence that the Sensing requirements have been met. 2 In State v. Stamper , 863 S.W.2d 404, 405 (Tenn. 1993), our supreme court hel d that "the standard of proof necessary to show the existence of a conspirac y for the purpose of admitting co-conspirator statements i s proof ... by a preponderance of the evidence." The9 Stamper court concluded as follow s: [T]he appropriate standard of proof for preliminary facts re quired fo r the adm ission of evidence is proof b y a preponderance of the evidence. We are satisfied that the preponderance standard is s ufficient to satisfy the reliability concer

n that underlies the hearsay rule and has shaped the exceptions to it, including the excepti on for co-conspirators' statements. Id. at 406 (footnote omitted).

Our rules of evidence prov ide that "[p]reliminary questions concerning the ... admissibility

of evidence shall be determin ed by the court ...." Tenn. R.Evid. 104(a). One authority has noted that the preponderance of the ev idence is the standard of proof under Tenn. R. Evi d. 104, given our supreme court's broad language in the Stamper case: Rule 104 does not indicate what standard of proof m ust be satisfied in order to asses s whether the facts necessary for an evidentiary rule to apply are present or absent. In State v. Stamper , the Tennessee Supreme Court held that "the appropria te standard of proof for preliminary facts required for the admission of evidence is proof by a prep onderance of the evidence." Although this decision dealt specifically with the evidence necessary to establish a coconspirator's admissi on, the standard was expressed in general terms and may reflect the test in Tennessee. Neil P. Cohen et al, Tennessee Law of Evidence , § 104.3 at 28-29 (3d ed. 1995) (footnotes omitted).

In this case, after hearing testimony from Officer Foister , and after hearing argument from counsel , the trial judge rule d that a "proper foundation has been laid." Implicit in thi s ruling is that the tr ial judge found the officer had, in fact, followed the required Sensing procedures.

Next, the admissibility of breath test evidence is analogous to the admissibility of exper

t testimony. The standard of rev iew of the admissibility

of10 expert testimony is, of course, whether the tri al court abused its discr etion. Our supreme court recently described that standard as follows:

In Tenn essee th e qualifi cations, admissib ility, relevancy and competency of expert testimony are matters which large ly rest within the sound discretion of the trial court. State v. Rhoden , 739 S.W.2d 6 (Tenn. Crim. App. 1987). Such discretion, however, i s not absolute and may be overtur ned on appeal where the discretion is arbitr

arily exercise

d. Baggett v. State , 220 Tenn. 592, 421 S.W.2d 629, 632 (1967). State v. Ballard , 855 S.W.2d 557, 56 2 (Tenn. 1993). Expert testimony typically involves some type of scientific or specialized knowledge. The breath test is also based on science, even thoug h Sensing established that the testing officer did not have to testify to the sci entific basis for the test. This court has consistently

ruled that "whether to admit or ex clude expert testimony and scientific evidence rests within the discretion of the trial court and relief on appeal will only be afforded if there was an abuse of discre tion which was pr

ejudicial." State v. Tizard , 897 S.W.2d 732, 748 (T enn. Crim. App. 1994) (emphasis added). The breath test is clearly a type of sci entific evidence.

We acknowledge that our supreme court clarified the standard for reviewing suppr

ession determinations by the trial court in State v. Odom , 928 S.W.2d 18 (Tenn. 1 996):

Questions of credibility of the witnesses, the weight and value of the ev idence, and resolution of conflicts in the evidence are matters entrusted to the tr ial judge as the trier of fact . The party prevaili ng in the trial court is entitled to the st rongest legitimate v iew of the evidence adduced at the suppres sion hearing as wel l as all reasonable and legiti mate inferences that may be drawn from that evidence. So long as the greater w eight of the evidence supports the trial court's findings, those findings shall be upheld. In other words, a trial court's findings of fact in a suppression hearing will be upheld unless the evidence preponder ates otherwise. We also note that this standard of rev iew is consistent w

ith Tenn. R. App. P. 13(d), which provides that in civil cases, findings of fact by a trial court are presumed correct "unless the preponderance of the evidence is othe rwise ."11 Hereafter, the proper standard to be applied in review ing suppression issues is the "preponderance of the evidence" standard. Id. at 23 (emphasis added). If construed broadly, portions of the paragraph imply that all factual determinations a trial judge must make be fore deciding to admit evidence are subject to the Odom standard; since Odom , however, our cour t has continued to apply the abuse of discretion standard in the review of expert testimony. See State v. Leroy Hall, Jr. , No. 03C01-9303-CR-00065, slip op. at 28 (Tenn. Crim. App., at Knoxv ille, Dec. 30, 1996) ("the trial court's ruli ng [to allow the expert testimony] w

as within its disc retion and was appropri ate"); State v. Terrance B. Pulliam , No. 02C01-9507-CR-00206, slip op. at 9 (Tenn. Crim. Ap p., at Jackson, Oct. 22, 1996), perm. to app. filed , Dec. 24, 1996; State v. James Ryion , No. 01C01-9511-CC-00365, slip op. at 14 (Tenn. Crim. App., at N ashville, Dec. 30, 1996), perm. to app. filed , Feb. 12, 1997. Our courts ha ve also continued to use the abuse of discretion standard in reviewing chai n of custody issues. See State v. Kirby G. Thurmon , No.02C01-9512-CR-00375, s lip op. at 8 (Tenn. Crim. App.,at Jackson, Oct. 17, 1996), perm. to app. filed , Dec. 16, 1996.

Odom dealt specifically with the standard of review of a trial court's determination that a confession w as voluntary. 928 S.W.2d at 22-23. Al l of the cases cited in Odom concern the admissibility of evidence allegedly obtained in violation of the Fourth or Fifth Amendment. Id. It is our view that admissibility of breath test evidence is more closely akin to admissibility of expert testimony than it is to determinations on the admis sibility of illeg ally seized evi dence. As indicated by the cases cited above concer ning the standard of revie w of the admissibility

of expert testimony and the d etermination that the chain of custo dy has been satisfied, the Odom standard of review has not been interpreted as applying to every single factual determination a trial j udge must make before deciding to admit evidence. See also State v. McLeod , 937 S.W.2d 867, 871 (Tenn. 1996) (In discussing the12 admissibility of hearsay statements under the medical diag nosis exception, our supreme court, post- Odom , stated, "It is well established that trial cour ts have broad discretion in determining the admissibility of ev

idence, and their rulings will not be reversed absent an abuse of that discretion.")

Accordingly, we conclude the appropriate standard of review is whether the trial cour

t abused its discretion. Using this standard, w e cannot find error in this case. The evidence is not overwhelming either way. There is, however, a modicum of proof to support the trial court's determination that the testing officer more probably than not follow ed the correct procedures i n this case. Officer Foister insisted that he was cer tain he had followed the corr ect procedures, notwiths tanding his failure to recall the specifics. The officer was able to testif y to the correct procedures. The test results printout shows that the officer tested a blank against a standard and then tested a blank against the defendant's breath. Officer M anning testified that he observed the defendant for the requisite tw enty minutes and then witnessed the breath test.Obviously, the tr ial judge is in a better

position than we to assess the officer's credibi lity. Thus, it is our conclusion that the trial court did not abuse it s discr etion by admitti ng the r

esults.The stat

e might conside r the use of a checklist so as to more cl osely adhere to the Sensing requirements.

Accordingly, the j udgment of conviction is affirmed.

__________________________________ Gary R. Wade, Judge CONCUR:

__________________________________ Joseph M. Tipto n, Judge13 _________________________________ Curwood Wi tt, Judge