             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE                     FILED
                                                                     August 15, 1997
                               APRIL 1995 SESSION


                                                                   Cecil W. Crowson
STATE OF TENNESSEE,                   )                           Appellate Court Clerk
                                      )
              Appellee,               )   No. 01C01-9501-CC-00001
                                      )
                                      )   Coffee County
v.                                    )
                                      )   Honorable Gerald L. Ewell, Sr., Judge
                                      )
WILLARD C. COOK, SR.,                 )   (Driving Under the Influence)
                                      )
              Appellant.              )



              SEPARATE CONCURRING & DISSENTING OPINION


       In accordance with Court procedure, I originally was assigned this case.

Upon completion, my colleagues agreed that the appellant’s conviction should be

affirmed. However, they both disagree with me that a pretrial motion to suppress

the results of the intoximeter test was required. Judge Tipton has eloquently and

persuasively stated the majority’s position. I, however, remain unswayed in my

belief that a pretrial motion to suppress is the required course of action to suppress

evidence of intoximeter results. I will succinctly explain my rationale below.



       At trial, the appellant challenged the admissibility of the test results under

State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). In Sensing, the Court addressed

the necessary foundation that the state must establish to admit breathalyzer test

results. Id. at 416. One of the requirements is that the testing officer must be able

to testify that the motorist was observed for the requisite twenty minutes prior to the

test; and that during this period, he did not have foreign matter in his mouth, did not

consume any alcoholic beverage, smoke, or regurgitate. Id. The appellant claims

that the trial court improperly admitted the test results into evidence because he had

foreign matter in his mouth prior to and when the test was administered. The
appellant asserts that his dentures are foreign matter. The trial court held that he

waived the issue of admissibility because he failed to file a pretrial motion to

suppress the evidence. The court did not abuse its discretion in not granting relief

of such waiver.



        Judge Tipton’s majority opinion makes a distinction between an issue

relating to sufficient foundation and the typical suppression motion involving

evidence “illegally obtained.” I am not persuaded as to the distinction. I believe we

should deal in substance, not form. The purposes of Rules 12(b)(3) and 12(f) are to

avoid unnecessary trial interruption and, more importantly, to assure that the state

may appeal an adverse ruling without double jeopardy consequences. See State v.

Braden, 874 S.W.2d 624, 625 (Tenn. Crim. App. 1993); State v. Randolph, 692

S.W.2d 37, 40 (Tenn. Crim. App. 1985). Allowing a defendant to pursue a

suppression issue like this one at the midpoint of a trial would destroy the state’s

case by giving the prosecution no appellate avenue if the ruling is adverse.



        I believe that the trial court properly denied the appellant’s challenge to the

admissibility of the test results. A motion to suppress evidence must be raised prior

to trial. Tenn. R. Crim. P. 12(b)(3). Failure to do so constitutes a waiver of the

objection. Tenn. R. Crim. P. 12(f). Appellant’s counsel could have made a motion

to suppress the test results based on the state’s inability to lay the proper foundation

prior to trial. Therefore, I concur in the results affirming the conviction but dissent on

the suppression-waiver issue.




                                                  _____________________________
                                                  PAUL G. SUMMERS, Judge




                                            2
