        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE

                         OCTOBER 1999 SESSION



STATE OF TENNESSEE,                )
                                   )
                                                  FILED
                                        #M1999-02057-CCA-R3-CD
                 Appellee,         )    C.C.A. No. 01C01-9906-CC-00216
                                   )               January 18, 2000
vs.                                )    Lawrence County
                                   )              Cecil Crowson, Jr.
ALARIC BARRET CROUCH,              )            Appellate Court Clerk
                                        Hon. Robert L. Jones, Judge
                                   )
                 Appellant.        )    (Certified Question of Law)
                                   )

FOR THE APPELLANT:                      FOR THE APPELLEE:
J. DANIEL FREEMON                       PAUL G. SUMMERS
Attorney at Law                         Attorney General & Reporter
P.O. Box 27
Lawrenceburg, TN 38464                  MARVIN E. CLEMENTS, JR.
                                        Asst. Attorney General
                                        425 Fifth Ave. North
                                        2d Floor, Cordell Hull Bldg.
                                        Nashville, TN 37243-0493

                                        T. MICHAEL BOTTOMS
                                        District Attorney General

                                        JAMES G. WHITE
                                        Asst. District Attorney General
                                        P.O. Box 459
                                        Lawrenceburg, TN 38464-0459




OPINION FILED:________________


APPEAL DISMISSED

JAMES CURWOOD WITT, JR., JUDGE
                                      OPINION

              The defendant, Alaric Barret Crouch,1 pleaded guilty to driving under

the influence but reserved, with the consent of the state and the trial court, a
certified question of law for appeal. See Tenn. R. Crim. P. 37(b)(2)(i), (iv). In this

appeal of that certified question, Crouch claims the arresting officer did not observe

him for twenty minutes prior to giving him a breathalyzer test, a prerequisite for
breath-test result admissibility under State v. Sensing, 843 S.W.2d 412, 416 (Tenn.

1992). Upon review, we find the record deficient of proof that the certified question

of law is dispositive of the case. As such, we are without jurisdiction to consider the
issue and must dismiss this appeal.



              On the evening of January 26, 1997, Deputy James Forrest of the
Lawrence County Sheriff’s Department was on patrol when he received a call from

two reserve officers who had observed a vehicle swaying in the lanes of the road.

The reserve officers were otherwise occupied, and Deputy Forrest responded.

Deputy Forrest observed the vehicle leave its lane “several times” and nearly strike

another patrol vehicle. Deputy Forrest stopped the vehicle, which the defendant
was driving. The deputy administered unspecified field sobriety tests, and as a

result of those tests, asked the defendant to submit to a breathalyzer test.

Thereafter, Deputy Forrest took the defendant into custody and transported him to
the jail, where the breathalyzer test was administered.



              The defendant was charged with driving under the influence, and in
pretrial proceedings, he filed a motion to suppress the results of the breath test. At

a hearing on the motion, the defendant claimed that Deputy Forrest had not

observed the defendant for twenty minutes prior to administering the test, and

therefore, the test results were inadmissible. See Sensing, 843 S.W.2d at 416; see

also State v. Bobo, 909 S.W.2d 788 (Tenn. 1995). The trial court ruled that the

deputy had monitored the defendant closely enough for the requisite time period to

satisfy the threshold for admissibility of the test results. Thereafter, the defendant
entered a guilty plea and reserved the issue as a certified question of law.

   1
    The defendant’s name also appears as “Alaric Barnett Crouch” in the record.
In accord with our custom, we refer to the defendant as his name appears in the
charging instrument.
              In State v. Pendergrass, 937 S.W.2d 834 (Tenn. 1996), the supreme

court spoke to the manner for properly preserving a certified question for appellate
review.

       Regardless of what has appeared in prior petitions, orders, colloquy
       in open court and otherwise, the final order or judgment from which
       the time begins to run to pursue a T.R.A.P. 3 appeal must contain a
       statement of the dispositive certified question of law reserved by the
       defendant for appellate review and the question of law must be stated
       so as to clearly identify the scope and the limits of the legal issue
       reserved. For example, where questions of law involve the validity of
       searches and the admissibility of statements and confessions, etc.,
       the reasons relied upon by the defendant in the trial court at the
       suppression hearing must be identified in the statement of the
       certified question of law and review by the appellate courts will be
       limited to those passed upon by the trial judge and stated in the
       certified question, absent a constitutional requirement otherwise.
       Without an explicit statement of the certified question of law, neither
       the defendant, the State nor the trial judge can make a meaningful
       determination of whether the issue sought to be reviewed is
       dispositive of the case. Most of the reported and unreported cases
       seeking the limited appellate review pursuant to Tenn. R. Crim. P. 37
       have been dismissed because the certified question was not
       dispositive. Also, the order must state that the certified question was
       expressly reserved as part of the plea agreement, that the State and
       the trial judge consented to the reservation and that the State and the
       trial judge are of the opinion that the question is dispositive of the
       case. Of course, the burden is on defendant to see that these
       prerequisites are in the final order and that the record brought to the
       appellate courts contains all of the proceedings below that bear upon
       whether the certified question of law is dispositive and the merits of
       the question certified. No issue beyond the scope of the certified
       question will be considered.

Id. at 836-37 (quoting State v. Preston, 759 S.W.2d 647, 650) (Tenn. 1988))

(original emphasis omitted and emphasis added).



With respect to the question of the dispositive nature of the issue, the supreme
court has also said

       Before reaching the merits of a certified question, the appellate courts
       must first determine that the district attorney general and the trial
       judge have found the certified question to be dispositive of the case
       and then determine if the record on appeal demonstrates how that
       question is dispositive of the case. State v. Jennette, 706 S.W.2d
       614, 615 (Tenn. 1986). If the appellate court does not agree that the
       certified question is dispositive, appellate review should be denied.

Preston, 759 S.W.2d at 651 (order on petition for rehearing). If the certified

question of law is not dispositive of the case, this court will not assume jurisdiction
of the matter upon mere agreement of the parties and the trial court. State v.

Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984).


                                          3
              Unfortunately for the defendant at bar, the record fails to demonstrate

that the certified question is dispositive of the case. First, the record contains

evidence of the defendant’s intoxication which is independent of the breathalyzer
results. In particular, Deputy Forrest observed the defendant engaged in aberrant

driving. The deputy administered field sobriety tests, and the defendant performed

poorly. 2 Second, even if the state could not fulfill the prerequisites to breath test
admissibility of Sensing, the state could nevertheless offer the results into evidence

if it could fulfill the foundational requirements of Tennessee Rules of Evidence 702

and 703. See State v. Deloit, 964 S.W.2d 909 (Tenn. Crim. App. 1997). The record
before us demonstrates neither the inadmissibility of the independent evidence of

the defendant’s intoxication nor the inability of the state to admit the breath test

results under Rules 702 and 703.


              The defendant has the burden of seeing that a record is prepared for

this court which demonstrates the dispositive nature of the question certified.

Pendergrass, 937 S.W.2d at 836-37; Tenn. R. App. P. 24(b). In the case at bar, the

record does not so demonstrate. In fact, it tends to indicate the contrary.


              Accordingly, this court is without jurisdiction to entertain the merits of

the defendant’s certified question. The appeal is dismissed.




                                           ________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE

CONCUR:


_____________________________
JOE G. RILEY, JUDGE


_____________________________
THOMAS T. WOODALL, JUDGE



   2
   The specific nature of these tests and of the defendant’s performance on
them is not revealed in the record.

                                          4
