          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE            FILED
                             JANUARY SESSION, 1998       February 20, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,                  )   C.C.A. NO. 01C01-9704-CC-00152
                                     )
            Appellee,                )
                                     )   RUTHERFORD COU NTY
V.                                   )
                                     )
                                     )   HON . JAME S K. C LAYTO N, JR.,
JOHN H. HACKNEY,                     )   JUDGE
                                     )
            Appe llant.              )   (DUI)




FOR THE APPELLANT:                       FOR THE APPELLEE:

L. GILB ERT ANGL IN                      JOHN KNOX WALKUP
8 Lincoln Sq uare                        Attorney General & Reporter
1535 West Northfield Blvd.
Murfreesboro, TN 37129                   KAREN M. YACUZZO
                                         Assistant Attorney General
                                         2nd Floor, Cordell Hull Building
                                         425 Fifth Avenue North
                                         Nashville, TN 37243

                                         WILLIAM C. WHITESELL
                                         District Attorn ey Ge neral

                                         JOH N W. P RICE , III
                                         Assistant District Attorney General
                                         303 Rutherford County Judicial Bldg.
                                         Murfreesboro, TN 37130




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION

       The Defendant, John Harold Hackney, appeals as of right his conviction of first

offense DUI following a jury trial in the Circuit Court of Ru therford County. The trial

court senten ced De fendan t to eleven (1 1) mon ths and twenty-nin e (29) da ys, with

all but four (4) days suspended. In this appeal, Defendant argues that the trial court

erred in not suppressing the results of his Intoximeter 3000 test because he was not

observed for the requis ite twenty m inute per iod prior to a dministra tion of the te st.

We affirm the ju dgme nt of the trial co urt.



       On January 12, 1995, Murfreesbo ro police officer Steve Teeters was on patrol

when he noticed a truck we aving ba ck and forth going southe ast on B road Stre et.

Officer Teete rs pulled th e truck ov er at 12:0 6 a.m. D efenda nt, who was driving, had

a passe nger, Ph ilip Rainey, w ith him in the truck.       Office r Teete rs noted that

Defendant smelled of alcohol, had bloodshot eyes, slurred speech, and was

somewhat unstea dy on his fe et. Defendant told Officer Teeters that he had just

come from a bar. D efendant co nsented to p erform four fie ld sobriety tests, all of

which he failed. Specifically, Defendant was first asked to recite the alphabet, but

he could only get to the letter “p.” Next, Defendant was asked to perform the foot

balancing test which consisted of holding one leg straight out with the heel of the foot

about six inch es from the gro und, w hile counting from one to twenty. Officer Tee ters

testified that Defe ndant d id not pas s this test despite the fact that h e did not have

any physical problems that would have affected his performance. Defendant was

then asked to do the finger-to-nose test. De fenda nt’s body swayed from side to side

and he was unable to ever touc h his nos e. Finally, De fendan t was ask ed to perform



                                            -2-
the heel-to-toe test while co unting from zero to nin e and th en nine back do wn to

zero. Officer Teeters stated that Defendant could not walk heel-to-toe and was

unable to count fro m nine back to z ero.



       Based on Defendant’s driving, appearance, and performance on these tests,

Officer Teeters concluded that Defendant was driving under the influence of an

intoxicant. Defendant was arrested, handcuffed, and taken to the police department

where, according to the time o n the vid eo ca mera locate d in Teeters’ patrol car, he

arrived at 1 2:37 a.m . The pa rties stipulate d to this time .



       Defendant was taken to a room at the station where the Intoximeter 3000 was

located. He signed a consent form allowing the police to a dministe r the brea th test.

According to Officer Teeters, Defendant’s passenger, Rainey, was left in a larger

outer room. Officer T eeters testified that he was with the Defendant and observed

him for the requisite twenty m inute per iod prior to a dministe ring the bre ath test.

Using the Intoxim eter 300 0, Officer T eeters a dministe red a bre ath test at 1 2:56 a.m .,

according to the clock in the Intoximeter 3000, which resulted in a blood alcohol

reading of .19 perc ent.



       The trial court denied Defendant’s Motion to Supp ress the b reath test results

and they were adm itted into evidence at trial over the objec tion of D efend ant’s

coun sel.



       On appeal, Defendant argues the trial court erred by admitting the breath test

evidence, since the State failed to establish that all the prerequisites were met as

established in State v. Sensing, 843 S.W .2d 412 (Tenn. 19 92).                Specifically,

                                             -3-
Defendant argues that the offic er did not observe Defendant for twenty minutes prior

to the administration of the breath te st. In Sensing, our supreme court set forth the

criteria for the admissibility of breath test results, holding that the testing officer must

be able to testify to the following:

       (1) that the tes ts were pe rformed in accord ance w ith the standards and
       operating procedure promulgated by the forensic services division of
       the Tennessee Bureau of Investigation,

       (2) that he w as prop erly certified in a ccorda nce with those standards,

       (3) that the evidentiary breath testing instrument used was certified by
       the forensic services division, was tested regularly for accuracy and
       was working properly when the breath test was performed,

       (4) that the motorist was observed for the requisite 20 minutes
       prior to the test, and during this period, he did not have foreign
       matter in his mouth, did not consume any alcoholic beverage,
       smok e, or regurg itate,

       (5) evidence that he followed the prescribed operational procedure,

       (6) identify the printout record offered in evidence as the result of the
       test given to the person tested.


Id. at 416 (em phasis a dded).



       The six requirements in Sensing are mandatory and must be “scrupulously

followed.” State v. Harold E. Fields, C.C.A. No. 01C01-9412-CC-00438, slip op. at

3, William son Co unty (Te nn. Crim. App., Nashville, Apr. 12, 1996) (no Rule 11

application filed).   “The prerequisites to admissibility in Sensing are just tha t:

prerequisites to admissibility. They are not factors for determining the weight of the

evidenc e.” State v. Bobo, 909 S.W.2d 788, 790 (Tenn. 1995). Further, it is the

State ’s burden to establish compliance with each of the requirements.                 The

Defendant does not be ar any burde n to sh ow no n-com pliance.              See State v.

McC aslin, 894 S.W .2d 310 , 312 (T enn. C rim. App . 1994).


                                            -4-
       The twenty m inute obs ervation re quirem ent of Sensing carries with it two

distinct elements. The first is that the State must demonstrate that the Defendant

was observed for twenty minutes.            An officer may not guess, estimate or

approxim ate the amount of time the subject was under observation. The second

element of the requ iremen t is that the S tate must establish that the subject did not

smoke, drink, eat, chew gum, vomit, regurgitate, belch or hiccup during the twenty

minute s prior to tak ing the tes t. See Sensing, 843 S.W.2d at 417.



       According to the vid eo ca mera clock in the patrol car, Defendant arrived at the

station at 12:37 a.m. and according to the Intoximeter 3000 clock, the breath test

was administered at 12:56 a .m. However, Officer Teeters testified that there is no

effort to synchronize the times betw een the pa trol car camera clocks, the police

station clocks, the internal Intoximeter clock or even his own wristwatch. Officer

Teeters testified he observed Defendant for the requisite twenty minute period, as

required , before a dministe ring the bre ath test.



       Officer Teeters also testified that Defendant did not place any subs tance s in

his mouth or regurgitate during the observation period. Furthermore, Officer Teeters

noted that if an individua l regurgitate s and the conten ts from the stomach go into the

perso n’s mouth before the test is ad minis tered, th e Intoxim eter wo uld au toma tically

abort the test.



       Defendant testified at the suppre ssion he aring an d motio n for new trial

hearing. He asserted that he was handcuffed to a water pipe at the police station,

and that while he was handcuffed Officer Teeters left the room to take Phillip Rainey

outside to the patrol car before the twenty minute observation period was over and

                                            -5-
before the breath test was administered. Defendant also testified that without Officer

Teeters’ knowledge, he vomited into a garbage can and used one drop of a mint

breath freshener d uring Officer Te eters’ absenc e. Defenda nt claimed he suffers

from ulcers, making it common for him to vomit several times a day. Defendant

asserted that he was unaware that these actions could affect the breatha lyzer test.

Defendant stated that he was later informe d by som eone w ith the Dis trict Atto rney’s

Office that because he regurgitated, he should not ha ve been given a breathalyzer

test, but a blood test instead.



       Defendant relies on this Court’s opinion in State v. McC aslin. How ever, in

McC aslin, both parties admitted that the defendant was only observed for sixteen

minutes before the breath test was administered, thus failing to meet requirement

(4) in Sens ing. McCas lin, 894 S.W .2d at 311 ; Sensing, 843 S.W .2d at 416 . In

McC aslin, it was und isputed th at the twenty minute observation period was not

followed, and the refore, su ppress ion was approp riate. How ever, in the case sub

judice, the offic er testifie d that h e did observe the Defendant for twenty minutes prior

to the test. An officer’s testimony is sufficient to admit the test results into evidence.



       W e conclude that O fficer Tee ters’ testim ony prov ided a su fficient basis to

allow the results of the breath alcohol test to be admitted. Obviously, the trial judge

is in a better position than we are to assess the officer’s credibility. Once the trial

court has determined threshold admissibility, the submission of the brea th test res ult

into evidence is un condition al. The ju ry, as the trier o f fact, has the right then to

consider all of the evidence presented and to determine its relative worth. As

Sensing indicates, the admission of the test results do not foreclose the defense

from calling the re sults into question befo re the jury, whether by cross-examination,

                                            -6-
presentation of witnesses, or jury argument. 843 S.W.2d at 416. The defense in the

instant case vigoro usly cro ss-exa mine d Offic er Te eters, th ereby prope rly submitting

its argument of improper testing to the jury. The trial court even instructed the jury

on the required ob servation period, g iving the jury the option of rejecting Officer

Teete rs’ testimo ny.



       In light of all the evidence, we find that the trial court did not err by admitting

into eviden ce the Into ximeter 3 000 tes t results.



       Accordingly, the judgment of the trial court is affirmed.


                                   ____________________________________
                                   THOMAS T. W OODALL, Judge

CONCUR:


___________________________________
DAVID H. WELLES , Judge


___________________________________
JERRY L. SMITH, Judge




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