          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE           FILED
                           JANUARY 1998 SESSION           March 23, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk



STATE OF TENNESSEE,               )
                                  )
             Appellee,            )   C.C.A. No. 03C01-9704-CR-00139
                                  )
v.                                )   Washington County
                                  )
JAMES DALE GRINDSTAFF,            )   Hon. Lynn Brown, Judge
                                  )
             Appellant.           )   (DUI)




FOR THE APPELLANT:                            FOR THE APPELLEE:

STEVE McEWEN                                  JOHN KNOX WALKUP
Asst. District Public Defender                Attorney General & Reporter
142 E. Market St.
Johnson City, TN 37601                        CLINTON J. MORGAN
                                              Assistant Attorney General
                                              450 James Robertson Parkway
                                              Nashville, TN 37243-0493

                                              DAVID E. CROCKETT
                                              Dist. Attorney General

                                              MICHAEL LaGUARDIA
                                              Asst. Dist. Attorney General
                                              P.O. Box 38
                                              Jonesborough, TN 37659




OPINION FILED: _____________


REVERSED AND REMANDED


CURWOOD WITT, JUDGE
                                      OPINION

              The defendant, James Dale Grindstaff, stands convicted of DUI

following trial before a jury of his peers in the Washington County Criminal Court.

He asks this court to reverse his conviction based upon the admission of (1)

evidence about the horizontal gaze nystagmus test and the results of his

performance of that test without proper scientific foundation, and (2) breathalyser

test results where the state conceded the arresting officer had not continuously

observed the defendant for 20 minutes prior to administration of the test. For the

reasons that follow, we agree with the defendant and reverse his conviction and

remand for a new trial.



              Defendant first complains of the trial court's admission of Trooper

Jackie Jones's testimony about the horizontal gaze nystagmus test. Trooper Jones

was the arresting officer, and he administered three field sobriety tests, recitation

of the alphabet, heel-to-toe walk and turn, and horizontal gaze nystagmus. With

respect to the horizontal gaze nystagmus test, the trooper's testimony included the

relevance of the test to an officer's determination of whether a suspect is under the

influence of alcohol, the mechanics of the test itself, and the results he obtained

when he administered the test to the defendant. The defendant claims it was error

for the trial court to admit this evidence without first establishing the test's general

acceptance in the scientific community for measuring impairment from alcohol

consumption.



              At the time this case was tried, different panels of this court had

reached differing results on this issue.1      See, e.g., State v. William Thomas

Jankowski, No. 03C01-9503-CR-00100 (Tenn. Crim. App., Knoxville, Nov. 15, 1995)

(results of three field sobriety tests, including horizontal gaze nystagmus test, were


       1
        The trial court acknowledged as much in making its ruling on the
defendant's motion to suppress. Unfortunately, the trial court agreed with a
different panel of this court than did the supreme court when it considered the
issue.

                                           2
not scientific evidence and were properly admitted through an officer's testimony,

but court erred in allowing officers to testify to scientific conclusions about

percentage content of alcohol in defendant's blood based upon test results absent

evidence of record supporting scientific reliability of conclusions and officers'

qualifications to render opinions in this respect), perm. app. denied (Tenn. 1996);

State v. Cora Murphy, No. 01C01-9412-CC-00401 (Tenn. Crim. App., Nashville,

Oct. 6, 1995) (horizontal gaze nystagmus test, unlike other field sobriety tests, is

scientific in nature, and evidence regarding it must be predicated upon principles

applicable to admission of scientific evidence), aff'd, 953 S.W.2d 200 (Tenn. 1997).

Since that time, however, the supreme court has resolved the issue by holding that

the horizontal gaze nystagmus tests is a scientific test. Murphy, 953 S.W.2d 200.

As our high court observed in Murphy,

      In Tennessee, evidence constitutes "scientific, technical, or other
      specialized knowledge" if it concerns a matter that "the average juror
      would not know, as a matter of course. . . ." State v. Bolin, 922
      S.W.2d 870, 874 (Tenn. 1996). In our view, the average juror would
      not know, as a matter of course, that a correlation exists between
      alcohol consumption and nystagmus. Consequently, testimony
      concerning the [horizontal gaze nystagmus] field sobriety test
      constitutes "scientific, technical or other specialized knowledge." As
      such, it must be offered though an expert witness and must meet the
      requirements of Tenn[essee] R[ule of] Evid[ence] 702 as explained in
      McDaniel v. CSX Transportation, 955 S.W.2d 257 (Tenn. 1997).

Murphy, 953 S.W.2d at 203 (footnote omitted).



              We find Murphy dispositive of the case at bar. In the case before us,

Officer Jones testified about the nystagmus-producing effects alcohol would have

on an individual. Although the officer had attended law enforcement training in DUI

offender apprehension and the horizontal gaze nystagmus test, the record fails to

establish that he was qualified by his "knowledge, skill, experience, training or

education" to provide expert testimony to "substantially assist the trier of fact to

understand the evidence or determine a fact in issue." Tenn. R. Evid. 702. As

such, the trial court should not have admitted his testimony about the horizontal

gaze nystagmus test.




                                         3
              Moreover, we are unpersuaded by the state's argument that the

defendant waived this issue by failing to file a pre-trial motion challenging the

admission of the evidence. Recently, the majority of a panel of this court has

distinguished cases in which the defendant's challenge is based upon the admission

of evidence due to an allegedly illegal search from those where the challenge is

based upon an insufficient foundation for admission of scientific evidence. See

State v. Willard C. Cook, Jr., No. 01C01-9501-CC-00001 (Tenn. Crim. App.,

Nashville, Aug. 15, 1997) (Summers, J., concurring and dissenting), reh'g en banc

denied (Tenn. Crim. App., Sept. 19, 1997), pet. for perm. app. filed (Tenn., Oct. 16,

1997). The majority in Willard C. Cook, Jr. held that in the former instance, Rule

12(b)(3) of the Rules of Criminal Procedure requires a motion to be made prior to

trial in order to preserve for appeal the issue of the propriety of the admission or

exclusion of that evidence, while in the latter case, the party without the burden of

proof relative to the admissibility of scientific evidence need not file a pre-trial

suppression motion but must object at trial to preserve the trial court's ruling on the

admissibility of the evidence for appellate review. Willard C. Cook, Jr., slip op. at

6-10 (Summers, J., concurring and dissenting). Though Willard C. Cook, Jr. dealt

with the foundational requirements for the admission of scientific evidence of

breathalyser results, we find it equally instructive to the horizontal gaze nystagmus

tests results in the case at bar.



              In the other issue raised by the defendant, he complains of the trial

court's admission of evidence that he scored .13 on a breathalyser test. He claims

the state failed to meet the conditions to admissibility of such evidence under State

v. Sensing, 843 S.W.2d 412 (Tenn. 1992), because Officer Jones failed to observe

him for twenty minutes prior to the test. The state claims we should overlook this

deficiency because the defendant agreed he did not regurgitate during the requisite

20 minutes.



              In Sensing, the supreme court established general foundational



                                          4
requirements for the admissibility of breath tests. Sensing says that the state must

establish through the testifying officer that six prerequisites have been met.

Sensing, 843 S.W.2d at 416. Relevant to our inquiry here, the officer must testify

"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." Sensing, 843 S.W.2d at 416; cf. State

v. Hunter, 941 S.W.2d 56 (Tenn. 1997) (observation and testing do not have to be

done by same officer).



              In a case in which the state was unable to establish one of the

Sensing prerequisites, the supreme court rejected the notion that the breath test

results should nevertheless be admitted and the procedural deficiency should be

relegated a factor to be considered in weighing the evidence. See State v. Bobo,

909 S.W.2d 788 (Tenn. 1995). In so holding, the supreme court noted that Sensing

"relaxed the rigorous foundation requirements for the admission of the results of

breath alcohol testing." Bobo, 909 S.W.2d at 790. However, Sensing established

prerequisites to admissibility of breath alcohol results, and it did not remove

altogether the requirements for threshold admissibility. "The prerequisites to

admissibility in Sensing are just that: prerequisites to admissibility" and not mere

factors for determining the weight of the evidence. Bobo, 909 S.W.2d at 790.



              Recently, a panel of this court was faced with a situation factually

analogous to the case at bar. See State v. Douglas Russell Deloit, No. 01C01-

9606-CR-00275 (Tenn. Crim. App., Nashville, Sept. 30, 1997). In Douglas Russell

Deloit, the state was unable to establish the Sensing prerequisite that the defendant

was continuously observed for 20 minutes before administration of the breath test.

That panel interpreted Bobo as prohibiting admission of evidence of breath test

results through the testimony of the non-expert testing officer where the state's

proof is lacking on one of the Sensing prerequisites. Perhaps more significantly,

that panel also said that in the face of a Sensing deficiency, "the state may still use



                                          5
traditional rules of evidence to lay the foundation for admitting the evidence but

there is no presumption of reliability." Douglas Russell Deloit, slip op. at 8 (citing

Tenn. R. Evid. 702, 703).



              By its own admission, the state was unable in the present case to

establish the 20 minute prerequisite of Sensing. It did not offer evidence in the form

of expert testimony about the technical science of the breath test or its reliability as

a scientific means of measuring the breath alcohol concentration of an individual

and converting that measurement to blood alcohol concentration. See Sensing, 843

S.W.2d at 416. We are not compelled by the state's argument that we should give

it the benefit of the Sensing presumption because the defendant did not regurgitate

during the 20 minute period. To do so would disregard both the evidence in this

case and the clear mandate of Bobo. The defendant thought he might have

belched, and in any event, the burden is on the state if it wishes to avail itself of the

Sensing presumption of reliability of the test results. The burden is not on the

defendant to establish the presumption should not be applied in the first instance.

State v. McCaslin, 894 S.W.2d 310 (Tenn. Crim. App. 1994). Accordingly, the trial

court should not have allowed Officer Jones to offer evidence of the defendant's

breath test results.



              The question that remains is whether the admission of the horizontal

gaze nystagmus test and breath test evidence was harmless error. Officer Jones

testified both about the scientific tests and about his observations of the defendant

which a jury, using its lay knowledge, might interpret as indicative of intoxication.

That evidence included the defendant's smelling of alcohol, having bloodshot eyes,

slurring his speech and performing poorly on the two field sobriety tests besides the

horizontal gaze nystagmus test. On the other hand, the defendant testified he

drank two to three beers over a course of 1 to 1-1/2 hours, has only an eighth grade

education, has a speech impediment which affects him when he gets excited, has

an old leg injury which gave him problems with the heel-to-toe walk and turn test,



                                           6
was wearing cowboy boots, and had driven from Detroit, Michigan to Washington

County, Tennessee earlier in the day. Officer Jones testified he did not observe the

defendant's vehicle weaving, crossing a line, or otherwise provide an indication the

defendant was under the influence.2 We find the state's evidence minus the

erroneously admitted evidence fairly balanced with that favorable to the defendant.

Moreover, we find it significant that the state's entire cache of scientific proof was

admitted in error.    We conclude that the cumulative effect of the erroneous

admission of the breathalyser test results and horizontal gaze nystagmus test

results more probably than not affected the outcome of the trial. See Tenn. R. App.

P. 36(b); Tenn. R. Crim. P. 52(a); cf. Douglas Russell Deloit, slip op. at 15;

McCaslin, 894 S.W.2d at 312.



              Therefore, we reverse the defendant's DUI conviction and remand this

matter for a new trial consistent with this opinion.


                                                  ____________________________
                                                  CURWOOD WITT, JUDGE

CONCUR:


______________________________
GARY R. WADE, JUDGE


_______________________________
JOSEPH M. TIPTON, JUDGE




       2
       The defendant was stopped for traveling 48 miles per hour in a 45 miles
per hour zone.

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