         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 5, 2002

               STATE OF TENNESSEE v. GREGORY W. GURLEY

                      Appeal from the Circuit Court for Madison County
                            No. 01-116    Donald H. Allen, Judge



                     No. W2001-02253-CCA-R3-CD - Filed August 6, 2002


The defendant, Gregory W. Gurley, pursues an appeal of a certified question of law in the wake of
his guilty plea and resulting conviction of second-offense driving under the influence (DUI). In his
reservation of a certified question for appeal pursuant to Tennessee Rule of Criminal Procedure
37(b)(2)(i), the defendant claims that the trial court erred in denying his motion to suppress the
results of an intoximeter test; he posits that the test results are inadmissible because the officer who
administered the test failed to comply with the “20-minute” requirement for breath-alcohol testing
that was established in State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). Because the record supports
the trial court’s denial of the suppression motion, we affirm.


                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JERRY L. SMITH, JJ., joined.

Jeff Mueller, Jackson, Tennessee, for the Appellant, Gregory W. Gurley.

Paul G. Summers, Attorney General & Reporter; Christine M. Lapps, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

                 The record of the proceedings below contains a transcript of the suppression hearing.
Madison County Deputy Sheriff Shane Barnes, who was the sole witness at the hearing, testified that
at approximately 9:30 p.m. on November 2, 2000 he arrested the defendant for DUI and transported
him to the jail. After arriving at the jail, he took the defendant to the intoximeter room, where, upon
looking at his watch, he commenced a 20-minute observation of the defendant. During this period,
the defendant did not have any foreign matter in his mouth and did not drink, belch, or regurgitate.
After the 20-minute period expired according to Deputy Barnes’s watch, he used the intoximeter to
assess the defendant’s blood-alcohol level. The state introduced through Deputy Barnes the
intoximeter print-out, which reflected that the test was administered to the defendant at 10:06 p.m.
and yielded a blood-alcohol reading of .12 percent.

                 Through cross-examining the deputy, the defendant introduced into evidence a copy
of the jail dispatcher’s computer log, which showed that Deputy Barnes reported his arrival at the
jail with the defendant in tow at 9:48 p.m. and introduced a copy of the Jackson Police Department’s
computer log, which showed that, upon Deputy Barnes’s arrival at the jail, he called the police
department to get an incident number at 9:51 p.m. The Jackson Police Department computer log
also showed that Deputy Barnes became available for patrol duty at 10:17 p.m., although the
dispatcher’s computer log showed that he became available at approximately 10:23 p.m.

                 During cross- and re-direct examination, as well as during examination by the trial
judge, Deputy Barnes insisted that he used his own watch for purposes of timing the 20-minute
period and that he conducted the full 20-minute observation before commencing the test. He
testified that he did not remember the time of the evening shown on his watch when he commenced
the 20-minute period. He did not time the period by the clock on the intoximeter. He testified that
the intoximeter’s clock was probably not synchronized with the dispatcher’s clock and/or computer
or with the police department’s computer.

                 Reserving the right to appeal a certified question of law challenging the propriety of
the trial court’s denial of the suppression motion, the defendant pleaded guilty to the indictment’s
second count of second-offense DUI, pursuant to Tennessee Code Annotated section 55-10-
401(a)(2). According to this Code section, a person commits DUI who drives an automobile or other
motor driven vehicle on any public road, highway, street, alley, shopping center premises, trailer
park, apartment house complex, or any other premises that is generally frequented by the public at
large, while the “alcohol concentration in such person’s blood or breath is [.10 percent] or more.”
Tenn. Code Ann. § 55-10-401(a)(2) (1998). Pursuant to the plea agreement, count one of the
indictment, which alleged DUI via driving “under the influence,” see id. § 55-10-401(a)(1), was
dismissed.

                 In State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), our supreme court established
criteria for the admission of certain breath-alcohol tests:

               [T]he 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

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               not have foreign matter in his mouth, did not consume any alcoholic
               beverage, smoke or regurgitate, (5) . . . that [the testing-officer]
               followed the prescribed operational procedure, [and] (6) [that he must
               be able to] identify the printout record offered in evidence as the
               result of the test given to the person tested.

Id. at 416.

                  The only facet of the Sensing requirements at issue in the present case is whether
Deputy Barnes observed the defendant for the full 20-minute period prior to administering the
intoximeter test. The purpose of the 20-minute period “is to make sure that the person tested has no
foreign matter in his mouth, that he doesn’t hiccough, vomit, belch, smoke, or take another drink –
all of which could produce a false reading.” State v. Robert Leon Curtis, No. 1 (Tenn. Crim. App.,
Jackson, Dec. 9, 1987), judgment modified on other grounds (Tenn. 1988); see also State v. Mark
Bateman, No. 01C01-9608-CC-00377, slip op. at 5-6 (Tenn. Crim. App., Nashville, Dec. 17, 1997)
(20-minute period “was judiciously imposed to protect against the skewing of test results due to
[, inter alia,] recent digestive episodes experienced by the accused”).

                At the suppression hearing, the state bore the burden of establishing compliance with
the Sensing requirements as a means of using the Sensing formula for gaining admission of the test
results into evidence. Sensing, 843 S.W.2d at 416 (state must establish “the competency of the
operator, the proper operation of the machine and that the testing procedures [were] properly
followed”); see State v. Korsakov, 34 S.W.3d 534, 542 (Tenn. Crim. App. 2000). This burden is one
of preponderance of the evidence. State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999). On appeal, the
appellate court will presume the correctness of the trial court’s ruling on the motion to suppress,
unless the evidence preponderates otherwise. Id. at 78.

                           I. Reservation of Issue for Certified Question Appeal.

                 Our first task is to determine whether the defendant has effectively reserved an issue
for appeal. Even though a guilty plea was tendered by the defendant and accepted by the trial court,
the defendant has sought to reserve a dispositive issue for appeal as a certified question of law. See
Tenn. R. Crim. App. 37(b)(2)(i); State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988) (imposing rigid
requirements for reserving a certified question, including that the judgment of conviction must
articulate that the state and the trial court consented to the reservation and that both agreed that the
issue is dispositive of the case). Without belaboring the point, we conclude from our review of the
record that the defendant has properly and effectively reserved for our review the certified question
of law.

                             II. The Presentation of a Dispositive Issue.

                Despite that the defendant complied with Rule 37(b)(2)(i) and Preston and thereby
effectively reserved an appellate issue that the court and the parties below deemed to be dispositive

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of the case, we must nevertheless determine that the issue is, indeed, dispositive. State v. James O.
Gambrell, Sr., No. 01C01-9603-CR-00123, slip op. at 4-5 (Tenn. Crim. App., Nashville, May 7,
1997) (“Satisfaction of the technical requirements does not ensure review by an appellate court.
Appellate review of a properly certified question of law is permitted only when the certified question
addresses a dispositive issue, [and a]n appellate court is not bound by the trial court’s determination
that an issue is dispositive.”).

               In a DUI conviction based upon the driving-while-under-the-influence provision of
Tennessee Code Annotated section 55-10-401(a)(1), the denial of a Sensing-based motion to
suppress is not necessarily dispositive of the case. It is not dispositive when sufficient convicting
evidence exists that is “independent of the test result,” such as testimony from an officer or other
witness that the motorist drove in a manner, or otherwise exhibited behavior, that suggested
impairment of the ability to drive. Mark Bateman, slip op. at 6; see also State v. Daniel O’Neil
Connelly, No. M2000-01914-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App., Nashville, Nov. 6,
2001).

                We conclude, however, that when the conviction is based upon the de facto blood-
alcohol content of.10 percent or more, Tenn. Code Ann. §55-10-401(a)(2) (1998), the admissibility
into evidence of the only breath test given to the accused would be dispositive of the case, absent
some evidence, not offered in the present case, that other blood-alcohol evidence could somehow
yet be developed from existing facts. Thus, we conclude that the defendant has presented a
dispositive issue.

                              III. The Merits of the Defendant’s Claim.

               The defendant in his brief relies upon the documentary evidence introduced in the
suppression hearing. It showed that, upon arriving at the jail with the defendant in custody, Deputy
Barnes spent a total of 26 minutes at the jail, based upon a 9:51 p.m. arrival time and clearance for
resumption of patrol at 10:17 p.m. He postulates that this time period was insufficient to allow the
deputy to enter the jail, book the defendant, fill out a warrant and affidavit, observe the defendant
for 20 minutes, and then administer the intoximeter test.

                Although we commend the defendant’s counsel for his overall well-conceived
appellate theory, we must find it unavailing. In contrast to the police department log, the
dispatcher’s computer log reflects that Deputy Barnes arrived at the jail at 9:48 p.m. and was cleared
for resumption of patrol at 10:23 p.m., leaving an interval of approximately 35 minutes. Moreover,
the record fails to affirmatively reflect that Deputy Barnes actually booked the defendant and filled
out the warrant papers prior to the intoximeter test or even prior to being listed available for patrol
duty. He stated, “We go through the door there in Booking, bear right back to the left into the
Intoximeter Room. It’s right as you walk in the door.” He testified that he commenced the 20-
minute observation period immediately upon entering the intoximeter room.



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                At any rate, it is clear from the record of the suppression hearing that the trial court
accredited the testimony of Deputy Barnes, who testified affirmatively that he timed a full 20-minute
period via his watch. Based upon this testimony, the trial court determined that the state carried its
burden of establishing compliance with the Sensing requirements. Presuming that the trial court’s
findings of fact are correct and noting that appellate courts defer to fact-finders to make credibility
assessments of witnesses who testify at suppression hearings, see State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996); State v. Norris, 47 S.W.3d 45, 468 (Tenn. Crim. App. 2000), we must conclude that
the evidence does not preponderate against the lower court’s findings. See Edison, 9 S.W.3d at 79
(appellate court could not “say that the evidence preponderates against the trial court’s finding that
the Sensing prerequisites were met,” when the testing officer’s testimony supported the trial court’s
determination).

                As a result, we find no reversible error and affirm the trial court’s denial of the motion
to suppress.



                                                         ________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




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