        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs July 27, 2010

                   STATE OF TENNESSEE v. BRIAN L. TUNE

                 Appeal from the Criminal Court for Loudon County
                     No. 2007-CR-62 E. Eugene Eblen, Judge




            No. E2009-01619-CCA-R3-CD - FILED DECEMBER 3, 2010




The Defendant, Brian L. Tune, was charged with driving under the influence (DUI), second
offense. Following the Loudon County Criminal Court’s denial of his motion to suppress
the breath alcohol test results, the Defendant pled guilty to DUI, first offense, a Class A
misdemeanor. Pursuant to the plea agreement, the trial court sentenced the Defendant to 11
months and 29 days in the county jail suspended to a community based alternative sentence.
Pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, the Defendant
sought to reserve a certified question of law challenging the breath alcohol test results.
However, we conclude the certified question is not dispositive. We also note that the
Defendant failed to file a timely notice of appeal and provides no reason to waive the timely
filing of the notice of appeal. The appeal is dismissed.

             Tenn. R. App. P. 3 Appeal as of Right; Appeal is Dismissed.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Michael W. Ritter, Oak Ridge, Tennessee, attorney for the appellant, Brian L. Tune.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophie S. Lee, Assistant Attorney
General; Russell Johnson, District Attorney General; and Frank A. Harvey, Assistant District
Attorney General, attorneys for the appellee, State of Tennessee.

                                        OPINION

      At the preliminary hearing, Deputy T.J. Scarborough of the Loudon County Sheriff’s
Department testified that on July 29, 2006, he received a call regarding an accident on I-75
Southbound near mile-marker 83. When he arrived, he found the Defendant and another man
outside of a vehicle. The Defendant told Deputy Scarborough that he was driving when he
“lost control of [the] vehicle and hit the side of a bridge.” While talking to the Defendant,
Deputy Scarborough “smell[ed] a strong odor of an alcoholic beverage on [the Defendant’s]
person[] and noticed [that the Defendant] was unsteady on his feet.” He also noticed that the
Defendant’s speech was “slurred.” When asked if he had had anything to drink, the
Defendant told Deputy Scarborough that he “had a couple of drinks at dinner.” At that point,
Deputy Scarborough administered several field sobriety tests.

        The Defendant was asked to complete the one-legged stand test and the nine-pace,
heel-to-toe test. Deputy Scarborough told the Defendant to hold his leg “six to eight inches”
above the ground for ten seconds; however, the Defendant “put[] his foot on the ground.”
While performing the nine-pace, heel-to-toe test, the Defendant “stumbled.” Because he was
concerned for the Defendant’s safety, he “stopped doing all the coordination field sobriety
tests.” The Defendant was asked to recite his A-B-Cs but was unable to complete that task
as well. Deputy Scarborough then advised the Defendant that he was too impaired to drive
and arrested the Defendant for DUI.

       Once the Defendant was transported to the jail, Deputy Scarborough read the
Defendant the implied consent law. The Defendant agreed to take a breathalyzer test, and
Deputy Scarborough advised the Defendant that they would “have to wait 20 minutes” before
he could use the intoximeter machine. Deputy Scarborough testified that the 20-minute
waiting period is used to “make sure . . . he’s okay as far as . . . he’s . . . not injured, sick,
passed out . . . anything like that.” After the 20-minute waiting period, the Defendant
“submitted a breath sample” into the intoximeter machine, which indicated that the
Defendant’s blood alcohol content was .16. Deputy Scarborough also checked the
Defendant’s driving history and found that the Defendant had been convicted in Hamilton
County of DUI on July 19, 2004.

        On cross-examination, Deputy Scarborough admitted that his interaction with the
Defendant was not captured on videotape because he was driving a “part-time” car that did
not have a videocamera and that he did not take any field notes even though he was trained
to take field notes. He also admitted that the Defendant’s vehicle was “totally destroyed” and
that he was initially called to respond to a “wreck with injury.” He noted that the
Defendant’s windshield was cracked, that the air bag was deployed, and that the Defendant
had a scratch on his head. However, he cancelled the emergency medical responders because
the Defendant refused medical treatment at the scene of the accident.

       Contrary to his earlier testimony in which he stated that he told the Defendant to hold
his leg six to eight inches off the ground, Deputy Scarborough stated that he told the

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Defendant to hold his foot eight to ten inches off the ground while performing the one-legged
stand test. He admitted that six to eight inches was an incorrect instruction and that had he
incorrectly instructed the Defendant at the scene, the test would have been invalid. When
asked how the Defendant appeared, he stated that the Defendant had “glassy eyes, glassy,
bloodshot eyes” in addition to the Defendant’s slurred speech and unsteadiness.

        Relative to his administering the intoximeter test, Deputy Scarborough admitted that
he did not know the written procedures promulgated by the Tennessee Bureau of
Investigation and that he could not recall how many steps were in the written procedures.
He stated that he used the mouthpiece that was supplied for the machine, but he was unable
to recall the name of the mouthpiece. When asked if he knew when the machine was last
calibrated, he stated that the machine “does a self-calibration every time you type a new name
into it” and that he did not specifically remember the last time a technician came and
calibrated the machine by hand. At the conclusion of the hearing, the court found that there
was “sufficient proof in the record on the basis of the requirements for preliminary
examination” and bound the case “over to the Loudon County grand jury.”

       The Defendant was subsequently indicted for DUI and moved to suppress the results
from the intoximeter machine. At the suppression hearing, Special Agent Forensic Scientist
Dave Ferguson of the Knoxville Regional Consolidated Tennessee Bureau of Investigation
(TBI) testified that he maintained the “breath alcohol instruments in the areas of East
Tennessee.” He stated that he came “once every three months” to test the instruments and
“make sure they [were] working within the [TBI] standards.” If the instrument was “working
accurately,” he issued a certificate for that instrument. He stated that “since 2000,” he had
been testing the instruments in Loudon County. Loudon County utilized the Intoximeter
EC/IR-II at the time of the Defendant’s arrest.

        Relative to the instrument that was used with the Defendant, Agent Ferguson stated
that he issued a certificate for that instrument on June 22, 2006, and in September 2006 after
running a “wet bath standard” through the instrument. He stated that if a machine tested
within .075 and .085, then no calibration was necessary. The Defendant’s machine registered
at .076 for the tests in June and September 2006. He stated that the machine had not needed
repairs since it was put into service on October 25, 2005. In addition, he stated that these
types of machines, including the machine used in the Defendant’s case, had a “number of
abort sequences built into it,” meaning that the instrument would not perform the analysis if
it was not “working 100 percent.” Agent Ferguson stated that the mouthpieces used for
testing the machine are supplied by TBI and that officers are instructed to use a new
mouthpiece with each person.




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       On cross-examination, Agent Ferguson stated that Tennessee adopted the standards
used to measure a person’s breath alcohol content as they appeared in the federal register.
He stated that while he could not testify as to the testing that was performed on the machine
before the machine was sent to Tennessee, he performed the necessary tests on the machine
in Loudon County. He admitted that he could not testify as to what mouthpiece Deputy
Scarborough used on the Defendant, but he stated that he supplied the mouthpieces that were
validated with the instruments. Agent Ferguson then described in detail how the Intoximeter
EC/IR-II worked. He admitted that objects in a person’s mouth would affect the reading on
the machine, but he stated that officers are instructed to observe the person for 20 minutes
before allowing them to blow into the machine. He stated that in order for the machine to
work, a person would have to submit a deep breath and that if a person did not submit a deep
breath, the machine monitor would display that it received an insufficient breath sample. He
also stated that the machine had a built-in “RFI mute for radio frequency interference
immunity” to prevent interference from radio frequencies. He said that if the temperature of
the machine were out of range, then the instrument would not allow a test to be performed.

        Deputy Scarborough testified consistently with his testimony at the preliminary
hearing. Additionally, he stated that he was not familiar with the case of State v. Sensing,
843 S.W.2d 412 (Tenn. 1992) at the time of the preliminary hearing. He said that he had
been trained on how to properly administer the intoximeter test when he tested the
Defendant. He stated that he performed the test in accordance with the standards and
procedures set forth in his certification class and that he was certified to administer the test.
He stated that the machine appeared to be functioning properly and that it did not give him
any trouble or reject the Defendant’s breath sample. He stated that he observed the
Defendant for the entirety of the 20-minute observation period and that the Defendant did not
eat, drink, smoke, or have anything in his mouth.

        On cross-examination, Deputy Scarborough testified that he performed the field
sobriety tests on level pavement in the emergency lane. He admitted again that he did not
have any field notes and that his encounter with the Defendant was not videotaped. He said
that he could not recall specifics as to how the Defendant failed the field sobriety tests. He
also said that the Defendant “had a smell of alcoholic beverage on his breath,” was “a little
unsteady on his feet,” and had slurred speech. He admitted that he testified at the preliminary
hearing that the Defendant also had “glassy eyes, glassy, bloodshot eyes” at the scene of the
accident. He admitted that he did not check the Defendant’s mouth for any objects. He
stated that the Defendant did not appear to have anything in his mouth and that he observed
him for the 20-minute observation period. He said that after the observation period, he told
the Defendant to “take a deep breath and blow into the machine.” He stated that it was his
usual practice to tell people to take a deep breath and blow into the machine and that he did
not have any reason to believe that he did not instruct the Defendant in the same manner. He

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admitted that he did not testify at the preliminary hearing that he told the Defendant to take
a deep breath before blowing into the machine. He stated that he used the mouthpiece that
was supplied by the TBI and that the mouthpiece was individually wrapped inside a little box
that was placed beside the machine. He admitted that at the preliminary hearing, he could
not remember the individual steps that were provided in the written procedures promulgated
by the TBI. At the conclusion of the hearing, the trial court overruled the Defendant’s
motion.

       The Defendant entered a guilty plea and sought to reserve for appeal the certified
question of whether the breathalyzer test “should have been suppressed following the hearing
pursuant to the requirements by State v. Sensing, 843 S.W.2d 412 (Tenn. 1992).” The
Defendant further noted that “if the [s]uppression motion had been granted, the State’s case
would have been proven weak in evidence to prosecute and that failure to suppress is
dispositive to the [D]efendant’s case.” The judgment was filed on June 16, 2009, and the
Defendant filed a notice of appeal on July 29, 2009.

                                         ANALYSIS

        The Defendant contends that the trial court erred in concluding that the breath alcohol
test results were admissible when the State was unable to satisfy the Sensing requirements.
The Defendant further contends that “[w]ithout the breath test, there is no persuasive
evidence to indicate that the [D]efendant was driving under the influence.” The State
responds that the Defendant’s case should be dismissed because the Defendant failed to file
a timely notice of appeal. The State further responds that the appeal should also be dismissed
because the Defendant’s certified question is not dispositive of the case.

        The State is correct in asserting that the notice of appeal was untimely. Pursuant to
Tennessee Rule of Appellate Procedure 4(a), a notice of appeal “shall be filed with and
received by the clerk of the trial court within 30 days after the date of entry of the judgment
appealed from[.]” The judgment in this case was filed on June 16, 2009; however, the notice
of appeal was not filed until July 29, 2009, more than 30 days after the judgment was filed.
We acknowledge that the untimely filing of a notice of appeal is not always fatal to an
appeal. State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007). Rule 4(a) states
that “in all criminal cases the ‘notice of appeal’ document is not jurisdictional and the filing
of such document may be waived in the interest of justice.” Tenn. R. App. P. 4(a). “‘In
determining whether waiver is appropriate, this court will consider the nature of the issues
presented for review, the reasons for and the length of the delay in seeking relief, and any
other relevant factors presented in the particular case.’” Rockwell, 280 S.W.3d at 214
(quoting State v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL 3543415,
at *1 (Tenn. Crim. App. Dec. 27, 2005)). Waiver is not automatic and should only occur

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when “the interest of justice” mandates waiver. If this court were to summarily grant a
waiver whenever confronted with untimely notices, the 30 day requirement of Tennessee
Rule of Appellate Procedure 4(a) would be rendered a legal fiction. Id.

        The Defendant’s brief contains no explanation or discussion regarding the untimely
filing of the notice of appeal. Moreover, the nature of the issues presented for review do not
mandate waiver because the Defendant’s certified question of law is not dispositive of his
case. While the Defendant complied with the procedural requirements of Rule 37 of the
Tennessee Rules of Criminal Procedure, our review of the record in this case indicates that
resolution of the Defendant’s issue in his favor would not dispose of the case when there was
additional testimony that would have supported the Defendant’s conviction of DUI. State
v. Gregory W. Gurley, No. W2001-02253-CCA-R3-CD, 2002 WL 1841754, at *3 (Tenn.
Crim. App. Aug. 6, 2002). Indeed, Deputy Scarborough testified that the Defendant smelled
of alcohol, was unsteady on his feet, had slurred speech, admitting to consuming drinks with
dinner, and was unable to perform satisfactorily on the field sobriety tests. While defense
counsel notes that Deputy Scarborough’s testimony was hindered by the fact that Deputy
Scarborough did not take field notes or remember the explicit details of his interaction with
the Defendant, we note that these issues relate to the weight of Deputy Scarborough’s
testimony and not to its admissibility. Accordingly, we conclude that the interest of justice
does not mandate waiver of the untimely filing of the notice of appeal in this case. The
Defendant’s appeal is dismissed as untimely.

                                      CONCLUSION

        Having concluded that the interest of justice does not require a waiver of the timely
filing of the notice of appeal, the appeal is dismissed.


                                                   ___________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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