                                                                                      03/03/2017




       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                             December 13, 2016 Session

         STATE OF TENNESSEE v. KELLY NICOLE HENDERSON

               Appeal from the Criminal Court for Davidson County
              No. 2015-C-1962         Amanda J. McClendon, Judge


                            No. M2016-01325-CCA-R9-CD


We granted this interlocutory appeal to review the trial court’s order granting the
Defendant’s motion to suppress the results of a breath alcohol test. Prior to trial, the
Defendant filed a motion to suppress the results of the breath alcohol test based upon a
violation of State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). The trial court granted the
Defendant’s motion to suppress, and the State filed for an interlocutory appeal. After
review of the record and applicable authority, we hold that the trial court erred in
suppressing the results of the blood alcohol test because the State attempted to properly
admit them through expert testimony in accordance with Tennessee Rules of Evidence
702 and 703.

        Tenn. R. App. P. 9 Interlocutory Appeal; Judgments of the Criminal
                         Court Reversed; Case Remanded

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Matthew Todd Ridley, Assistant
Attorney General; Glenn R. Funk, District Attorney General; Samantha Dotson, Assistant
District Attorney General, for the appellant, State of Tennessee.

Robert T. Vaughn, Nashville, Tennessee, for the Defendant, Kelly Nicole Henderson.



                                       OPINION

                             FACTUAL BACKGROUND
        On August 21, 2015, the Davidson County grand jury indicted the Defendant for
DUI and DUI per se. The Defendant subsequently filed a motion to suppress the results
of the blood alcohol test based upon a violation of requirements set out in Sensing, and a
suppression hearing followed.

         At the hearing, the arresting officer, Chris Roark, testified that he was employed
with the Belle Meade Police Department. He testified that, on September 14, 2014, he
observed the Defendant driving fifty-five miles per hour (“mph”) in a forty mph speed
zone. He stopped the Defendant and noticed that she exhibited signs of physical
impairment. Officer Roark asked the Defendant to exit her vehicle. After she complied,
he asked her to perform a series of field sobriety tests: “the horizontal gaze nystagmus,
the walk and turn[,] and the one-leg stand.” After she performed poorly on the field
sobriety tests, Officer Roark concluded that the Defendant “was definitely impaired. She
showed definite signs of impairment.” Officer Roark asked the Defendant if she had had
anything to drink, and “[i]nitially, she said no.” He asked the Defendant if she would
take a breath test at the station, and after “she was read the implied consent advisement[,]
. . . she volunteered to take a breath test.”

       Upon arrival at the station, Officer Roark took the Defendant “into the
breathalyzer room.” While the Defendant was seated in the room, Officer Roark testified
that he “explained[ed] the process” of the breath test and instructed her on how to
properly blow into the machine. Prior to beginning the test, Officer Roark claimed that
he observed the Defendant for “a little bit longer than twenty minutes” and that during
the twenty-minute observation period, he “maintained visual contact” with the Defendant.
After the observation period, the Defendant took the test. Officer Roark identified a
document containing the test results indicating that the Defendant’s blood alcohol content
was “.274[,]” and it was entered into evidence.

        On cross-examination, Officer Roark admitted that it was possible he left the
breathalyzer room during the twenty-minute observation period to “tell [his] sergeant
what was going on[.]” Officer Roark insisted that he “never lost visual contact with [the
Defendant.” He explained that he was likely talking to his sergeant “in the hallway[.]”
He averred, however, that he “had one eye on [the Defendant] and one eye [on the
hallway], and [he] was watching both[.]” According to Officer Roark, “[he was] talking
to [his] sergeant, but [he] had [his] eye on [the Defendant] as well.” He confirmed that
the dimensions of the breathalyzer room were “approximately ten [feet] by twelve [feet],”
and he agreed that he was “probably eleven or twelve feet away from [the Defendant]”
while he was “standing at the door.”

       Officer Roark testified that he was trained and certified by the Tennessee Bureau
of Investigation (TBI) to use the breath test machine at the station. He identified the TBI

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certificate certifying him to use the “ECIR II” intoximeter machine, and it was admitted
into evidence. Officer Roark also testified that this breath test machine was certified by
the TBI, and the TBI ran “monthly checks on it.” Additionally, the machine would do
“its own calibration.” Officer Roark identified “certificates of instrument accuracy”
regarding the breath test machine, and these documents were entered into evidence. He
also agreed that if he had been talking to his sergeant, he would have had “divided
attention.” Officer Roark explained that the purpose of the twenty-minute observation
period was to “make sure [the Defendant] d[i]dn’t burp or regurgitate” and acknowledged
that “if a person even . . . gently burped[,]” that would “violate the twenty-minute
observation[.]” He agreed that it was possible that “there was a period of time that [he]
may not have heard a burp when [he] was talking [to his sergeant] at the door[.]” He
further explained that if he had left the room, he would have maintained visual contact
with the Defendant, but he may not have heard a “light burp” because he was talking to
his sergeant.

       Furthermore, counsel for the Defendant showed Officer Roark the implied consent
form signed by the Defendant regarding the breath test. A section of the document
stated, “I did not have any foreign matter in my mouth, did not smoke, regurgitate or
drink any alcohol during the twenty-minute observation[.]” Officer Roark admitted that
he and the Defendant signed the form prior to beginning the twenty-minute observation.
When asked if this was how he was trained to conduct the test, Officer Roark replied, “It
was an error on my part.” Officer Roark also conceded that he “did not ask her to open
her mouth and look inside[.]” However, he stated that he did check to see if there was
any foreign matter in her mouth while he was talking to her during the observation
period, and he did not see her smoke or consume any alcohol. Officer Roark admitted
that he did not ask the Defendant if she had burped.

       The Defendant testified for the purpose of establishing that Officer Roark left the
breathalyzer room during the twenty-minute observation period. She testified,

            When [they] arrived at the station, [Officer Roark] brought [her] into
      the small room and he sat down, and he then started doing his paperwork.
      And after a little bit of conversation, he stood up and went and spoke to
      somebody in the hallway who had walked by or said something. Then
      when he came back in the room, he sat a little bit more and then got up and
      walked out completely, and [she] didn’t know if he closed the door . . . .
      The [she] just sat there and waited for him to come back in and [she
      thought] he came and sat and [they] had more conversation and he
      subsequently gave her the test.



                                           -3-
        Special Agent Robert Miles testified that he worked for the TBI Crime Lab, and
the parties stipulated that Agent Miles was qualified to offer expert testimony. Agent
Miles stated that he was “responsible for the calibration maintenance of over fifty breath
operations in the Middle Tennessee area.” Agent Miles explained that the purpose of the
twenty-minute observation period was “to ensure that there are no foreign matter in the
subject’s mouth, the subject doesn’t vomit, throw up or introduce some sort of an alcohol
into its mouth[.]” He elaborated that alcohol in the mouth would “induce what’s called
mouth alcohol, which could give a false positive reading.”

      He explained that in the machine used in this case, the ECIR II, there were built-in
safeguards to help get a reliable reading if the subject tested had mouth alcohol:

              [T]he TBI breath testing protocol has three safeguards regarding
       mouth alcohol. The first is the observation period, the twenty-minute
       observation is the first safeguard. Studies have shown that twenty minutes
       is more than enough time to have mouth alcohol reduced to zero or nothing.
       Second thing is the instrument has a built-in infrared detection device on
       the instrument. That is to flag mouth alcohol appropriately when
       necessary. And the third thing, and the most recent thing, is the two test
       protocol. The two test protocol will flag mouth alcohol if both things fail
       due to the fact that alcohol dissipates at a very rapid rate. And over a two-
       minute span, if the first test and the second test ha[ve] a greater difference
       than .02, then mouth alcohol is the main suspect.

Agent Miles testified that if mouth alcohol were detected by the infrared technology in
the machine, the machine “would give a reading that says mouth alcohol.”

       He identified the “ECIR II admission test” performed on the Defendant, and upon
viewing it, explained that there was no indication of mouth alcohol in the results. When
asked how he knew there was no mouth alcohol, he stated, “[T]he first and the main . . .
thing that [he could] tell [was] that the first test was a .275 and the second test was a .274,
which is a thousandth of a decimal point between the two tests.” Additionally, there was
nowhere on the “breath ticket” that mouth alcohol was detected by the infrared
technology in the machine, and he said “under the test status, it says success.”

       On cross-examination, Agent Miles agreed that all three safeguards were
important in getting an accurate result. However, he claimed that “the two test sequence
[was] the single most important thing that [the] breath alcohol program ha[d] done as far
as ensuring the test.” He admitted that he did not know what happened during the
observation period in this case, but “this breath test [was] . . . an excellent example of a
successful breath test.”

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       The trial court granted the Defendant’s motion to suppress, reasoning that “[w]hile
visual observation may be accomplished from the hallway, Officer Roark would not have
have been able to capture sound and smell, both of which are important in determining
whether subject belches or regurgitates during the testing period.” The trial court
concluded that the State had “not established by a preponderance of the evidence that the
requirements of Sensing ha[d] been met.” The State filed for an interlocutory appeal.
The trial court granted the State’s application, and we granted review.

                                        ANALYSIS

       The State contends that it satisfied the requirements of Sensing, arguing that the
officer maintained visual contact with the Defendant during the entire twenty-minute
period and ensured that the Defendant did not have anything in her mouth before the test.
Furthermore, the State argues that even if the trial court was correct in ruling the Sensing
requirements were not satisfied, the State may introduce the results of the breath test
through expert testimony. The Defendant contends that the fourth Sensing requirement
was not met because Officer Roark stepped out of the observation room to converse with
his sergeant during the twenty-minute observation period and, therefore, failed to
properly observe her. We conclude that the State failed to satisfy the fourth Sensing
requirement, but the State may introduce the results of the breath test through an expert
witness.

         In Sensing, our supreme court relaxed the requirements for introducing the results
of breath-alcohol tests into evidence. 843 S.W.2d 412. The court set forth new
requirements that must be followed when the State seeks to admit the results of these
tests from a non-qualified expert, such as the testing officer. The court determined that,
because the reliability of such testing had become generally accepted, there was no longer
a need for a certified operator of a breathalyzer “to know the scientific technology
involved in the function of the machine.” Id. at 416. Instead, the court held that before
evidence of breath-alcohol results are introduced, the testing officer must be able to
testify:

       (1) that the tests were performed in accordance with the standards and
       operating procedure promulgated by the forensic services division of the
       Tennessee Bureau of Investigation, (2) that he was properly certified in
       accordance 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, smoke, or regurgitate, (5)
                                             -5-
       evidence that he followed the prescribed operational procedure, [and] (6)
       identify the printout record offered in evidence as the result of the test given
       to the person tested.
Id.

       Because Sensing lowered the standard for admissibility of breath-alcohol tests, our
supreme court has declined to further relax the now well-established foundational
requirements for admitting such evidence. See State v. Bobo, 909 S.W.2d 788, 790
(Tenn. 1995) (explaining that Sensing created “unambiguous threshold admissibility
requirements” for the introduction of breath alcohol testing results from a non-expert);
see also State v. Deloit, 964 S.W.2d 909, 914 (Tenn. Crim. App. 1997) (noting that Bobo
held that “once the state decides to proceed under Sensing, which relaxed traditional
requirements of admissibility, there can be no further relaxation of the rules”). The State
carries the burden of proving that the breath test complied with the Sensing requirements.
State v. McCaslin, 894 S.W.2d 310, 312 (Tenn. Crim. App. 1994). On appeal, there is a
presumption that the trial court’s determination of the Sensing requirements is correct
unless the evidence preponderates otherwise. State v. Edison, 9 S.W.3d 75, 78 (Tenn.
1999).

        The fourth Sensing requirement requires the State to prove two distinct elements:
(1) that the defendant was observed for twenty minutes and (2) that the defendant “did
not have foreign matter in his mouth, did not consume any alcoholic beverage, smoke, or
regurgitate[.]” 843 S.W.2d at 416. This court has previously held that while “an
unblinking gaze for twenty minutes is not required, . . . the officer must be watching the
defendant rather than performing other tasks.” State v. Korsakov, 34 S.W.3d 534, 540
(Tenn. Crim. App. 2000). In Korsakov, the officer administering the breath-alcohol test
filled out paperwork during the observation period. Id. at 539. The officer testified that,
while standing across a counter from the defendant, he was able to observe the defendant
through his peripheral vision, and he “affirmed that the defendant did not eat, drink,
smoke, vomit, or belch during this time.” Id. The court determined that although the
officer was confident that he would have heard or smelled any of the activities that might
have affected the results of the breath test, this “belief” did not satisfy the prerequisite
that the defendant be observed for twenty minutes. Id. at 541. Also, in Deloit, this court
held that the results of a breath-alcohol test were not admissible where the officer
observed the defendant in his rear view mirror while he filled out paperwork. 964
S.W.2d at 916.

       Likewise, in State v. Sean E. Miller, because the officer admitted that he was
completing paperwork and talking to other officers during the observation period, the
court held that he could not conclusively verify that the defendant did not burp, belch,
regurgitate, or put anything in his mouth. No. W2001-02045-CCA-R3-CD, 2002 WL
                                             -6-
1483197, at *1 (Tenn. Crim. App. Feb. 15, 2002). The court stated that although there
was a videotape of the defendant while he was in the backseat of the patrol car, his face
was not observable for the entire twenty-minute period. Id. at *3 n.1. Therefore,
although “an appellate court’s standard of review is de novo with no presumption of
correctness where evidence does not involve issues of credibility,” the court could not
make an independent determination that the fourth Sensing requirement had been met.
Id. (citing State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000)). Furthermore, burping,
belching, and regurgitating can occur in a matter of seconds, and “while ‘often a belch or
regurgitation will produce a noise capable of being heard by another person, this is not
always the case.’” Korsakov, 34 S.W.3d at 541 (quoting State v. Harold E. Fields, No.
01C01-9412-CC-00438, 1996 WL 180706, at *3 (Tenn. Crim. App. Apr. 12, 1996)).

       In denying the motion to suppress, the trial court noted that

              Officer Roark would have been twelve feet away from [the
       Defendant] while he was speaking to his sergeant. He claims to have kept
       an eye on [the Defendant] during the entire twenty-minute period, even
       when he was conversing with another individual in the hallway. At the
       hearing on the Motion to Suppress, Officer Roark stated that he maintained
       audio observation of [the Defendant] “as much as he physically could,” but
       admitted that his attention would have been divided if he was having a
       conversation with his sergeant.

              This court holds that ‘observation’ means using the senses of sight,
       sound, and smell to observe the test subject. While Officer Roark was
       speaking [to] his sergeant in the hallway, he could not use all his senses to
       observe [the Defendant]. In this case, Officer Roark’s observation was
       interrupted by a conversation with someone outside the observation/testing
       room. While Officer Roark may have kept an eye on [the Defendant], he
       could not detect sound or smell from the hallway.

              Further, [the Defendant] completed the portion of the paperwork that
       stated she had not belched or regurgitated before the twenty-minute
       observation period. After the observation period, Officer Roark did not ask
       Ms. Henderson to confirm that she had not belched or regurgitated.

       We agree with the trial court that the State failed to meet the fourth requirement of
Sensing; however, that is not the end of our analysis. In Deloit, this court concluded that
the State may proceed under Sensing or the Tennessee Rules of Evidence, specifically
Rules 702 and 703, to establish the admissibility of evidentiary breath test results. 964
S.W.2d at 913-14. This court stated,
                                            -7-
       Our view is that if the state complies with the requirements of Sensing, it is
       entitled to the presumption that the test results are reliable and the results
       may be admitted into evidence without the benefit of an expert. If not, the
       state may still use traditional rules of evidence to lay the foundation for
       admitting the evidence but there is no presumption of reliability.

Id. at 913 (citing Tenn. R. Evid. 702, 703).

       Tennessee Rule of Evidence 702 provides that “[i]f scientific, technical, or
other specialized knowledge will substantially assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an
opinion or otherwise.” Tennessee Rule of Evidence 703 provides that

       the facts or data in the particular case upon which an expert bases an
       opinion or inference may be those perceived by or make known to the
       expert at or before the hearing. If of a type reasonably relied upon by
       experts in the particular field in forming opinions or inferences upon the
       subject, the facts or data need not be admissible in evidence.

       In the present case, the State attempted to introduce the results of the breath
alcohol test through expert testimony. Both parties stipulated that Agent Miles was
qualified to offer expert testimony regarding the Defendant’s breath alcohol test. Agent
Miles explained that there were safeguards in addition to the twenty-minute observation
period to ensure that the breath alcohol test was not skewed by mouth alcohol.
Additionally, he testified that “this breath test [was] . . . an excellent example of a
successful breath test.” Therefore, we conclude that the trial court erred in suppressing
the results of the breath alcohol test because the State may properly introduce the results
through the expert testimony of Agent Miles.

                                  CONCLUSION

       Based upon consideration of the foregoing and the record as a whole, we reverse
the judgment of the trial court.




                                                        _________________________________

                                                       D. KELLY THOMAS, JR., JUDGE

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