             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE                  FILED
                          APRIL 1995 SESSION
                                                           August 15, 1997

                                                         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.     )


For the Appellant:               For the Appellee:

Robert S. Peters                 Charles W. Burson
100 First Avenue, S.W.           Attorney General of Tennessee
Winchester, TN 37398                    and
                                 Sharon S. Selby
                                 Assistant Attorney General of Tennessee
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                  C. Michael Layne
                                  District Attorney General
                                          and
                                  Stephen E. Weitzman
                                  Assistant District Attorney General
                                  307 S. Woodland
                                  P.O. Box 147
                                  Manchester, TN 37355



OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION



             The defendant, Willard C. Cook, Sr., was convicted by a jury in the Coffee

County Circuit Court of driving while under the influence of an intoxicant. He was

sentenced to eleven months, twenty-nine days in jail, to be suspended upon serving

two hundred forty hours in confinement, and fined three hundred fifty dollars. In this

appeal as of right, the defendant essentially contends the following:

             (1) the evidence was insufficient to convict him;

             (2) the trial court erred in admitting into evidence the
             defendant’s breath test result, holding that he waived objection
             by not proceeding by a pretrial motion to suppress, when the
             proof showed that the defendant took the test with his dentures
             in his mouth;

              (3) the trial court erred in rejecting the defendant’s requested
              jury instruction to the effect that the jury could not consider the
              breath test result until the jury determined that certain
              preliminary facts had been placed into evidence.

Although we hold that the trial court erred in deeming the defendant’s objection to be

waived, we affirm the judgment of the trial court.



              Tennessee Highway Patrolman Don Kelsey testified that after 2:00 a.m.,

July 10, 1993, near Manchester, he saw a car drifting from lane to lane without

signaling. He said he stopped the car as it was about to enter the wrong way on a one-

way road. He said that the defendant was driving and that he noticed an alcoholic

beverage smell on the defendant’s breath, who also had bloodshot eyes. The

defendant admitted drinking and Trooper Kelsey found a half-empty half-pint bottle in

the car.



              Trooper Kelsey testified that the defendant had some trouble maintaining

his balance in getting out of his car. He said that he gave the defendant two field

sobriety tests, the horizontal gaze nystagmus test and a walk and turn test. He stated

that the defendant’s eyes bounced, indicating the defendant was under the influence of


                                              2
alcohol, and that he was unable to keep his balance in walking heel-to-toe. Trooper

Kelsey arrested the defendant for DUI and took him to the jail. He added that the

defendant was staggering when walking from the patrol car to the jail.



              Coffee County Jailer Charley Jones testified that he gave the defendant a

breath test and that the defendant registered .13. Mr. Jones explained the procedures

that he followed, and the defendant replied “no” when Mr. Jones asked if there was any

foreign matter in the defendant’s mouth. Mr. Jones acknowledged that he was unaware

that the defendant had dentures with a cotton pad base.



              The defendant testified that he had been to the Last Chance Saloon with

two women. He said that he consumed part of a half-pint of Lord Calbert over some

four and one-half hours before they left. He said that the car was owned by one of the

women, but he drove because she was sick. He said that the car weaved because one

of the women was hollering. He explained that he was polite and courteous to Trooper

Kelsey and that he performed three field sobriety tests. He denied being under the

influence of alcohol and stated that any difficulties he had with the field test related to

his physical problems.



              Susan Lynn Gibson testified that she saw the defendant at the Last

Chance Saloon and that he did not appear to her to be intoxicated. She said that he

was with two women and that when one got sick, the defendant offered to drive the

woman home. Ms. Gibson said that the defendant followed when she left the

establishment.




                                              I



                                              3
                The defendant contends that the evidence was insufficient to prove that

he was under the influence of alcohol, primarily indicating that the breath test result was

unreliable. This issue is without merit.



                On appeal, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). When the sufficiency of the evidence is

challenged, the relevant question for an appellate court is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2791, 2782 (1979).



                The defendant was seen driving in an erratic manner with the odor of

alcohol on his breath. He had trouble maintaining his balance, and he could not

perform properly on sobriety tests. His eyes were bloodshot, and he admitted that he

drank alcohol prior to his arrest. Trooper Kelsey’s testimony reflects that he was of the

opinion that the defendant was under the influence. His testimony, alone, supports the

jury verdict. Obviously, the breath test result was additional evidence of the defendant’s

intoxication.



                We note that the defendant made clear to the jury that he had dentures

when he took the breath test, that his dentures contained a cotton pad, and that this

could have affected the test result. Further, the defendant testified to his physical

conditions which he claimed affected his performance on the sobriety tests. He also

explained to the jury that his car weaved because of one of the girls’ actions.

Obviously, the jury was not convinced by his evidence. In this respect, the weight and

credibility of the witness’ testimony are matters entrusted exclusively to the jury as the




                                               4
trier of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). The evidence was

sufficient to convict the defendant.



                                                      II

               Next, the defendant contends that the trial court erred in admitting the

breath test result into evidence. First, he complains about the trial court’s finding that

his objection to the result was waived. Second, he asserts that his dentures constituted

foreign matter in his mouth that would bar the admission of the test result as unreliable

under State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). We agree with the defendant’s

first complaint, but not the second, given the circumstances of this case.



               When the state called Charley Jones as a witness about the breath test,

the defendant requested a jury-out hearing for the purpose of contesting the

admissibility of the test result because the test was taken with the defendant having

dentures. The defendant based his objection upon Sensing, in which our supreme

court addressed the foundation requirements1 that a party must establish to admit

breath test results obtained from an Intoximeter 3000 instrument, the one used in this

case. One of the requirements is that the testing officer must be able to testify that the

test subject was observed for twenty minutes before 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. 843 S.W.2d at 416.




               1
                In State v. Bobo, 909 S.W .2d 788, 790 (Tenn. 1995), our supreme court stated the
Sensing requirements as follows:

                     First, the testing ope rator m ust testify that the test used followed
               Tennessee Bureau of Investigation standards. Second, the operator must
               be certified in accordance with those standards. Third, the machine must
               be certified, tested reg ularly for ac curacy, and working properly. Fourth, the
               motorist m ust be pe rsonally obs erve d for the requisite minutes before taking
               the test. Fifth, the operator must follow the instrument’s prescribed
               operational procedure. Lastly, the op erato r m ust ide ntify the tes t resu lts
               offered in evidence .



                                                      5
              At the evidentiary hearing, the fact that the defendant had dentures was

first disclosed. Mr. Jones testified that Trooper Kelsey, then he, observed the

defendant and that the defendant had not been sick, had anything to drink, or anything

else. He testified that upon being questioned, the defendant denied having any foreign

matter in his mouth. Mr. Jones acknowledged that he was unaware of the defendant

having dentures with a cotton pad, but that if he had known, he would have had the

defendant remove them. The trial court ruled that the defendant was required to have

filed a pretrial motion to suppress on the issue. Also, it noted its belief that the

defendant’s claim went to the weight of the evidence, not its admissibility.



                                              A

              The defendant contends that he was not obligated to file a pretrial motion

to suppress to raise the issue of the test result being inadmissible because the state

failed to follow the Sensing requirements. He asserts that he did nothing more than to

contest the admissibility of evidence as would any midtrial objection. In response, the

state notes that the defendant was moving to exclude the test result. It relies upon Rule

12(b)(3) and (f), Tenn. R. Crim. P., which require that a motion to suppress evidence

must be filed before trial and that a failure to file a motion timely constitutes a waiver.

                     The purpose of this rule is not only to avoid the
              unnecessary interruption and inefficiency in conducting jury
              trials caused by needlessly removing the jury from the
              courtroom for protracted suppression hearings, but also to
              ensure the right of the state to an appeal of an adverse ruling
              by the trial judge without placing the defendant twice in
              jeopardy.

State v. Randolph, 692 S.W.2d 37, 40 (Tenn. Crim. App. 1985).



              In support of the state’s position, we note that this court has previously

indicated that a defendant’s failure to file a motion to suppress timely relative to an

attempt to exclude a blood-alcohol test constitutes a waiver. See, e.g., State v. Braden,

874 S.W.2d 624, 625 (Tenn. Crim. App. 1993). However, upon further consideration,



                                              6
we believe that Rule 12(b)(3), Tenn. R. Crim. P., regarding motions to suppress

evidence was not meant to apply to an issue relating to whether a sufficient foundation

has been laid for the admission of scientific test results into evidence.



              The Advisory Commission Comments to Rule 12 state that our rule

conforms to its federal counterpart. Given this, we note that in United States v.

Barletta, 644 F.2d 50, 54 (1st Cir. 1981), the First Circuit stated the following:

              At least as used in 12(b), “suppress” has a rather definite and
              limited meaning, as explained by the Advisory Committee
              notes accompanying the Rule. Motions to suppress are
              described as "objections to evidence on the ground that it was
              illegally obtained," including "evidence obtained as a result of
              an illegal search" and "other forms of illegality such as the use
              of unconstitutional means to obtain a confession." Advisory
              Committee notes, Federal Rule Criminal Procedure 12(b)(3),
              foll. 18 U.S.C.A., citing 3 C. Wright, Federal Practice &
              Procedure: Criminal § 673 (1960). Put generally, then,
              suppression motions concern the "application of the
              exclusionary rule of evidence," or matters of "'police conduct
              not immediately relevant to the question of guilt'", id., quoting
              Jones v. United States, 362 U.S. 257, 264, 80 S. Ct. 725, 732
              4 L.Ed. 2d 697 (1960) . . . .

In other words, a motion to suppress is contemplated to deal with the issue of excluding

“illegally obtained” evidence. In fact, the Ohio Supreme Court has followed this

rationale to require a pretrial motion to suppress in order to contest the admissibility of

alcohol breath test results relative to foundational requirements. In Ohio v. French, 650

N.E.2d 887, 891-92 (Ohio 1995), the court noted that the testing requirements came

from the Department of Health administrative regulations and concluded that a motion

to suppress should be used to address evidence that is “illegally obtained” whether by

violation of constitutional or statutory provisions. See also State v. Kirn, 767 P.2d 1238,

1239-40 (Haw. 1989) (for interlocutory appeal purposes, the state may appeal the

pretrial suppression of breath test results deemed obtained in violation of an

administrative rule). However, we do not believe that such reasoning applies under

Tennessee law.




                                              7
                 Although a trial court is not barred from addressing admissibility of test

results by a pretrial motion under certain circumstances, we believe that matters of

evidentiary foundations, historically rooted in the concerns for the reliability and,

therefore, the relevancy of evidence submitted to the jury, are typically assessed at trial

and remain the burden of the offering party. In this sense, it is an altogether different

procedure that deals with whether a sufficient evidentiary foundation exists to allow

expert or scientific evidence to be used. Our rules of evidence contemplate that midtrial

determinations of such admissibility issues will occur. See, e.g., Tenn. R. Evid. 104.



                 Scientific test results and their interpretations presented by an expert

witness are admissible only upon a threshold showing of certain existing circumstances.

Given the fact that this foundation laying is a prerequisite to admissibility, the burden

falls upon the party seeking to introduce scientific test results to prove that the

prerequisites are met. See Neil P. Cohen et al., Tennessee Law of Evidence, § 702.4,

at 464-66 (3d ed. 1995). Absent the prerequisites being proven to exist, the evidence is

inadmissible. Also, that treatise states that if a contest of the qualifications is desired, it

is preferable for the opponent to request a jury-out hearing to allow counsel to probe

"the witness's expertise by asking about the witness's background and about the

scientific basis for the tests and the instruments used in the tests." Id. at 465; see also

Tenn. R. Evid. 104(c) (dealing with jury-out hearings for preliminary matters relating to

admissibility). We believe that the record in the present case reflects that the

defendant sought nothing more than to invoke this procedure.2



                 In specific terms of the admissibility of breath test results in order to prove

the alcohol content in the blood, Tennessee previously required the party seeking to

admit the results to show that (1) the test instrument used was capable of measuring or


                 2
                  W e note that the issue of the admissibility of the breath test results in Sensing arose by
the defenda nt’s m idtrial obje ction a nd w as re solve d thro ugh a jury-out hearing. See State v. James D.
Sensing, No. 01-C -01-900 7-C C-0 018 0, Dicks on C oun ty (Tenn. C rim . App . Apr. 4 , 1991), aff’d 843 S.W .2d
412 (T enn. 1992).

                                                       8
calculating data being used by the interpreting expert and was based upon scientific

principles accepted by the scientific community, (2) the instrument was functioning

properly and was used properly at the time of the test, (3) the test was conducted by a

person qualified to administer it, and (4) the interpretation of the test results must have

been by a qualified person, including the person having an understanding of both the

scientific principles behind and the operative functions of the test. See Pruitt v. State,

216 Tenn. 686, 393 S.W.2d 747 (1965); Fortune v. State, 197 Tenn. 691, 277 S.W.2d

381 (1955); Tenn. R. Evid. 702; Cohen, supra §§ 401.17--401.20, 401.22, 702.2--

702.4. Although in Sensing our supreme court relaxed the evidentiary foundation

needed for admission of breath test results obtained from an Intoximeter 3000, it did not

alter the burden for establishing that foundation.



              As our supreme court stated in State v. Bobo, the Sensing requirements

are “prerequisites for threshold admissibility of breath alcohol test results.” 909 S.W.2d

at 790. As such, the proponent of the evidence, in this case the state, has the burden

of laying sufficient foundation to allow the admission of the breath test results. If the

foundation is not proven, the evidence may be excluded upon objection. In fact, this

court has already so held. See State v. Harold E. Fields, No. 01C01-9412-CC-00438,

Williamson County (Tenn. Crim. App. Apr. 12, 1996).



              Therefore, the fact that the defendant raised the threshold admissibility

issue midtrial did not constitute a waiver of that issue. Nor did the fact that he

proceeded by motion at the beginning of Mr. Jones’ appearance as a witness -- as

opposed to objecting during Mr. Jones’ testimony -- change the nature of the inquiry or

the state’s burden to establish a proper foundation. However, this does not mean that

the state failed to meet its burden in this case.




                                             9
                                             B

              The defendant contends that the fact that he was tested with his dentures

renders the test result inadmissible because the dentures were a foreign substance in

his mouth. He notes that Mr. Jones testified that if he had known of the dentures, he

would have had them removed. Obviously, the requirement that no foreign matter be in

the mouth is intended to insure that the breath that the defendant blows into the

Intoximeter 3000 is not tainted by some substance that might alter, by alcohol retention

or otherwise, the instrument’s reading of the defendant’s deep lung air sample.

However, we believe that the circumstances in the present case did not call for the

exclusion of the breath test results.



              Initially, we note that some jurisdictions have been unwilling to consider

false teeth to be foreign matter that should bar admission of test results. See People v.

Witt, 630 N.E.2d 156 (Ill. App. Ct. 1994); State v. Allen, 702 P.2d 1118 (Or. App. 1984);

see also City of Sunnyside v. Fernandez, 799 P.2d 753, 755 (Wash. App. 1990)

(administrative regulation excludes “dental work” from “foreign substances” relative to

breath test procedures). We are inclined to agree relative to the threshold admissibility

prerequisites. However, whether we view dentures to be foreign matter is not

dispositive in this case.



              The defendant was observed for the required time and nothing unusual

was seen. He denied having any foreign matter in his mouth. The record reflects that

the fact that he wore dentures was not even disclosed to his counsel until the time of

trial. Also, the defendant stipulated to Mr. Jones’ qualifications and to the Intoximeter

being certified to be functioning properly several months before and weeks after his

arrest. Finally, as a matter of omission, there is no evidence in the record that tells us

what effect, if any, dentures could potentially have on the test result.




                                             10
                 The subject of a test should not be allowed to withhold a fact relevant to

the test procedures as required by Sensing and then seek exclusion of the test results

on the ground that the procedures used were incomplete because of the withheld fact.

In this case, if the dentures were considered foreign matter, Mr. Jones was entitled to

rely upon the defendant’s answer that no foreign matter was present. Thus, either way

that the dentures are viewed, the state was entitled to introduce the breath test result

into evidence.



                 In this respect, we believe it to be significant that Sensing requires the

subject to be observed for twenty minutes and does not otherwise require a physical

probe of the mouth or interrogation of the subject about his or her mouth contents.

Obviously, given the fact that a defendant may attack the validity of the test results

before the jury, it might be advisable, as a practical matter, for the test operator to ask

the subject about dentures. We do not, though, believe it to be a prerequisite to

admissibility.



                                                III

                 Finally, the defendant contends that he was entitled to the jury being

instructed that the breath test result could not be considered until the jury determined

that the preliminary facts had been proven. We disagree. As we previously noted, the

Sensing requirements are prerequisites for the test result to be admitted into evidence.

As such, the trial court -- not the jury -- has the duty to determine whether a proper

foundation has been proven in order to allow the test result into evidence.



                 Once the trial court has determined threshold admissibility, the

submission of the breath test result into evidence is unconditional. The jury, as the trier

of fact, has the right to consider all of the evidence presented and to determine its

relative worth. As Sensing indicates, the admission of the test result does not foreclose



                                               11
the defense from calling the result into question before the jury, whether by cross-

examination, presentation of witnesses, or jury argument. 843 S.W.2d at 416.

However, whether the jury disregards the test result is a decision left to it as the trier of

fact. There is no bar to the jury’s consideration of the test result once it is admitted into

evidence. Thus, the defendant’s requested jury instruction was an incorrect statement

of the law, and the trial court properly rejected it. See State v. Moore, 751 S.W.2d 464,

466-67 (Tenn. Crim. App. 1988).



              In consideration of the foregoing, and the record as a whole, the judgment

of conviction is affirmed.



                                                  ________________________________
                                                  Joseph M. Tipton, Judge

CONCUR:



(See separate concurring & dissenting opinion)
Paul G. Summers, Judge



___________________________
William M. Barker, Judge




                                             12
