         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE            FILED
                           JANUARY 1997 SESSION         June 18, 1997

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,            *   C.C.A. # 03C01-9605-CC-00199

             Appellee,         *   JEFFERSON COUNTY

VS.                            *   Hon. Ben W. Hooper, II, Judge

JERRY WAYNE EDISON,            *   (DUI)

             Appe llant.       *



For Ap pellant:                    For Appellee:

Lu Ann Ballew                      Charles W. Burson
Asst. Public Defender              Attorney General & Reporter
P.O. Box 416
Dandridge, TN 37725                Michae l J. Fahey , II
                                   Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   James L. Gass
                                   Assistant District Attorney General
                                   P.O. Box 70
                                   Dandridge, TN 37725-0070


OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, JUDGE
                                             OPINION

                A jury found the defendant, Jerry Wayne Edison,1 guilty of DUI; the

trial court imposed a sentence of eleven months and twenty-nine days, suspended

after the service of seven days in jail, and revoked the defendant's license for one

year. The sole issue on appeal is whether the trial court erred by admitting the

results of the defendant's breath test into evidence at trial.



                At approximately 3:30 a.m. on February 17, 1994, Officer Steve

Manning of the Jefferson County Sheriff's Department was on patrol in Dandridge

when he saw a stalled car sitting in the traveling lane of a roadway. Two individuals

were trying to push the car to the shoulder. Officer Manning approached the

defendant, who was the driver of the stalled vehicle, and detected a strong odor of

alcohol. The defendant was placing chewing tobacco in his mouth. As the other

individual returned to the passenger side of the vehicle, the officer directed the

defendant to get out of his vehicle and to remove the tobacco from his mouth. The

defendant, who admitted that he had consumed a few beers, failed the fingertip to

nose test, the standing on one foot balance test, and the hand and eye coordination

test. Officer Manning then placed the defendant under arrest.



                Officer Merlin Foister testified that he had been trained by the TBI to

operate the Intoximeter 3000 breath machine. Over objection by the defense, the

officer was allowed to testify that the defendant registered a blood alcohol level of

.12.



                The defendant's sister, Carol Hatley, testified for the defense. She

claimed that the defendant had spent the day at her house. She related that her


        1
          While some court documents refer to the defendant as "Jerry Wayne Eidson," it is the policy
of this cou rt to use the defend ant's nam e as it is listed on the indictm ent.

                                                  2
son, Mark Wade, left with the defendant around 6:30 in the evening. She testified

that she saw her son the next day but has not seen him since because of his

"drinking problems."



              The defendant testified that when he was arrested, he had a valid

Florida driver's license. He claimed that he and his nephew had been to Cotton

Eyed Joe's in Knoxville where he had had two beers and some snack foods. He

maintained that he drove from Knoxville to Dandridge without any difficulty but then

had car trouble. He said that he and his nephew were pushing the car out of the

road when Officer Manning arrived. His nephew had a beer in his possession. The

defendant contended he had difficulty with the field sobriety tests because the end

of his big toe on his right foot had been cut off in a lawnmower accident. Medical

records confirmed this. The defendant insisted that his driving had not been

impaired.



              On appeal, the defendant argues the trial court erred by admitting the

breath test evidence. He asserts that Officer Foister's testimony should not have

been allowed under the test established in State v. Sensing, 843 S.W.2d 412 (Tenn.

1992).



              Prior to Sensing, a prerequisite to the admissibility of the test results

was that the operator had to "know the scientific technology involved in the function

of the machine." Id. at 416. Our supreme court "relax[ed] the rigorous prerequisites

formerly required to authenticate the reliability of the scientific equipment ...." Id.

Although the testing officer does not have to testify about the "scientific technology

involved," he must be able to testify to the following:

              (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

                                             3
              Investigation;

              (2) that [the testing officer] 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) evidence that [the testing officer] followed the
              prescribed operational procedure; and

              (6) [that the testing officer] identify the printout record
              offered in evidence as the result of the test given to the
              person tested.

Id. In State v. Bobo, 909 S.W.2d 788, 790 (Tenn. 1995), our supreme court

described Sensing as "establish[ing] the prerequisites for threshold admissibility of

breath alcohol test results."



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

testing officer was unable to testify that he had watched the defendant for the

requisite twenty minutes; in consequence, the test results were found inadmissible.

In McCaslin, the officer had placed the defendant in the patrol car at 2:20 a.m.,

arrived at the police station at 2:30 a.m., and administered the test at 2:46 a.m. Id.

at 311. The "undisputed period of observation" was sixteen minutes. Id. Our court

held that the time the defendant was in the patrol car could not be considered

because the officer could not "say with certainty that the defendant did not

regurgitate while out of his view in the backseat of the patrol car from 2:20 a.m. until

they arrived at the station." Id. at 311-12.



              In McCaslin, the state had argued that the test results should

nevertheless have been admitted because the defendant did not present any

                                               4
evidence that he had in fact regurgitated. This court responded to that argument as

follows:

              [T]he State's position is misplaced as it is the State's
              burden, not the defendant's, to present testimony
              through the testing officer that the Sensing pre-test
              requirements were met. Therefore, a claim that the
              defendant either presented or failed to present testimony
              of regurgitation is irrelevant in this case.

Id. at 312.



              In Bobo, our supreme court reaffirmed the Sensing requirements; the

state had conceded that the operational procedures for administering the test were

not followed but argued that the result should have been allowed because the

procedural deviation benefitted the defendant by giving a lower reading. Our

supreme court rejected that argument:

                     Courts admit competent, reliable evidence to
              assure a fair, just result. Rules of admissibility must be
              applied uniformly and universally, regardless of the
              outcome. Here the state failed to meet the threshold
              requirements for admitting the results of defendant's
              breath alcohol test. The trial court was correct in
              suppressing the results.

Bobo, 909 S.W.2d at 790.



              The six requirements in Sensing are mandatory and must be

"scrupulously followed." State v. Harold E. Fields, No. 01C01-9412-CC-00438, slip

op. at 4 (Tenn. Crim. App., at Nashville, Apr. 12, 1996). Further, it is the state's

burden to establish compliance with each of the requirements; the defendant does

not bear any burden to show non-compliance.



              To properly review this issue it is necessary to consider Officer

Foister's testimony in some detail. He testified that he had been trained by the TBI

to operate the Intoximeter 3000 breath machine. When asked if the machine was


                                            5
"certified as properly operating by the Tennessee Bureau of Investigation," he

responded affirmatively. When asked if he followed the "proper procedures," he

responded affirmatively. When asked "from all the information you used to operate

that machine and your training, was it operated properly at the time," he responded

affirmatively. When asked what steps he had taken with the defendant, the

following testimony ensued:

              Officer Foister: [T]he first thing we do is, we had to
              observe him for twenty minutes. That's no cigarettes, no
              food, no nothing, intake. ... [A]fter that's done, then we
              print everything in the machine. ... [W]e print the name,
              date of birth, driver's license number, whether he was
              involved in an accident, the time, the arresting officer, all
              that's typed in. ... So after everything's in the machine,
              we hit, it starts and it purges itself, it cleans its whole
              system. ... So ... the machine tells us when we're ready
              to blow.

              Gen. Gass: And it did that in this case?

              Officer Foister: Yeah.



              Before the officer testified as to the results of the breath test, defense

counsel was permitted to conduct a voir dire. The officer then acknowledged that he

did not have the TBI's certification of the intoximeter; he explained that the

document had been posted at the jail on the night of the defendant's arrest. The

officer testified that the machine is calibrated every three months: "I'd have to bring

all the records over here to give you the dates." When asked if he could "testify as

to when the last time this machine was calibrated before [the defendant] was

brought in," he responded in the negative. He also indicated he did not know when

"the last time ... a maintenance check had been done on this machine to insure that

it was functioning properly." When asked if he could recall whether he followed the

normal procedures in testing the defendant, the officer responded, "Well, I'm sure I

followed the procedures, but I can't remember."




                                            6
              The defendant argues the officer's testimony failed to establish

Sensing requirements (1), (3), and (5). Requirement (1) is 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. Officer

Foister testified that the machine had been certified as operating in compliance with

the procedures established by the Tennessee Bureau of Investigation. In our view,

that is enough.



              Requirement (3) is that the evidentiary breath testing instrument was

certified by the forensic services division, was tested regularly for accuracy, and was

working properly when the breath test was performed. Officer Foister testified that

the documentation of certification was posted by the machine when he tested the

defendant; he asserted that the machine is "checked every three months" but was

uncertain as to when the machine was calibrated or last subjected to a maintenance

check. Sensing, in our view, does not require that the officer relate the last date the

machine was tested; it only requires that the officer testify that the machine is

regularly tested. The state established that. Moreover, although there was no direct

declaration that the machine was working properly, the officer's testimony implied

that.



              Requirement (5) directs the examiner to follow the prescribed

operational procedures. On cross-examination, the officer candidly admitted that he

could not remember whether he followed the procedures or not. At the hearing on

the motion for new trial, the trial judge characterized the issue as follows:

              [I]t appears to me that there could be some questions
              raised that may need to be resolved. I would think that
              this certainly is not the first case where an officer was not
              able to remember precisely what took place, and I don't
              know whether that testimony amounts to a finding that
              whatever took place was certainly not proper procedure.
              I don't think I would want to go that far. It's a question of

                                            7
                   what effect does that type testimony have on the State's
                   burden of proof. Of course it's far from saying yes, I
                   didn't do so-and-so. Anyway, the Motion [for New Trial]
                   is overruled.

We conclude from this that the trial judge made a factual determination that the

officer did not remember what procedures he followed in testing the defendant.



                   Officer Foister's testimony on the fifth requirement raises evidentiary

issues of first impression. First, we must determine by what standard of proof must

the state establish that the Sensing requirements have been met. Secondly, we

must determine what is the appropriate standard of appellate review of the trial

judge's decision to admit the evidence. It has not been necessary to resolve these

issues in prior cases interpreting Sensing because the proof in the prior cases

established that certain of the procedures had not been followed. See, e.g., Bobo,

909 S.W.2d at 790 (state conceded that "prescribed operational procedure was not

followed"); McCaslin, 894 S.W.2d at 311 (the "undisputed period of observation ... of

sixteen minutes" was insufficient to meet the twenty minutes observation

requirement). Because the proof here was not overwhelming in either direction, it is

necessary to determine the applicable burden of proof and our scope of review.



                   Initially, we hold that the state must establish by a preponderance of

the evidence that the Sensing requirements have been met.2 In State v. Stamper,

863 S.W.2d 404, 405 (Tenn. 1993), our supreme court held that "the standard of

proof necessary to show the existence of a conspiracy for the purpose of admitting

co-conspirator statements is proof ... by a preponderance of the evidence." The



         2
         Oth er sta te juris dictio ns, h owe ver, h ave u sed a high er sta nda rd fo r varyin g type s of s cien tific
evidence. In City of Jackson v. Langford , 648 S.W .2d 927, 929 (Mo. App. 1983 ), the Missouri court
required that the reliability of radar tests be established "beyond a reasonable doubt." Texas has the
following rule for "novel scientific evidence": "The proponent of the evidence must prove to the trial
judge, by clear and convincing evidence and outside the presence of the jury, that the proffered
evidenc e is reliable an d therefo re relevan t." Cam pbell v. State , 910 S.W.2d 475, 478 (Tex. Crim. App.
1995), cert. denied, 116 S. Ct. 1430 (1996).

                                                           8
Stamper court concluded as follows:

                       [T]he appropriate standard of proof for preliminary
               facts required for the admission of evidence is proof by a
               preponderance of the evidence. We are satisfied that
               the preponderance standard is sufficient to satisfy the
               reliability concern that underlies the hearsay rule and has
               shaped the exceptions to it, including the exception for
               co-conspirators' statements.

Id. at 406 (footnote omitted).



               Our rules of evidence provide that "[p]reliminary questions concerning

the ... admissibility of evidence shall be determined by the court ...." Tenn. R. Evid.

104(a). One authority has noted that the preponderance of the evidence is the

standard of proof under Tenn. R. Evid. 104, given our supreme court's broad

language in the Stamper case:

               Rule 104 does not indicate what standard of proof must
               be satisfied in order to assess whether the facts
               necessary for an evidentiary rule to apply are present or
               absent. In State v. Stamper, the Tennessee Supreme
               Court held that "the appropriate standard of proof for
               preliminary facts required for the admission of evidence
               is proof by a preponderance of the evidence." Although
               this decision dealt specifically with the evidence
               necessary to establish a coconspirator's admission, the
               standard was expressed in general terms and may reflect
               the test in Tennessee.

Neil P. Cohen et al, Tennessee Law of Evidence, § 104.3 at 28-29 (3d ed. 1995)
(footnotes omitted).



               In this case, after hearing testimony from Officer Foister, and after

hearing argument from counsel, the trial judge ruled that a "proper foundation has

been laid." Implicit in this ruling is that the trial judge found the officer had, in fact,

followed the required Sensing procedures.



               Next, the admissibility of breath test evidence is analogous to the

admissibility of expert testimony. The standard of review of the admissibility of


                                              9
expert testimony is, of course, whether the trial court abused its discretion. Our

supreme court recently described that standard as follows:

                      In Tennessee the qualifications, admissibility,
              relevancy and competency of expert testimony are
              matters which largely rest within the sound discretion of
              the trial court. State v. Rhoden, 739 S.W.2d 6 (Tenn.
              Crim. App. 1987). Such discretion, however, is not
              absolute and may be overturned on appeal where the
              discretion is arbitrarily exercised. Baggett v. State, 220
              Tenn. 592, 421 S.W.2d 629, 632 (1967).

State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). Expert testimony typically

involves some type of scientific or specialized knowledge. The breath test is also

based on science, even though Sensing established that the testing officer did not

have to testify to the scientific basis for the test. This court has consistently ruled

that "whether to admit or exclude expert testimony and scientific evidence rests

within the discretion of the trial court and relief on appeal will only be afforded if

there was an abuse of discretion which was prejudicial." State v. Tizard, 897

S.W.2d 732, 748 (Tenn. Crim. App. 1994) (emphasis added). The breath test is

clearly a type of scientific evidence.



              We acknowledge that our supreme court clarified the standard for

reviewing suppression determinations by the trial court in State v. Odom, 928

S.W.2d 18 (Tenn. 1996):

                     Questions of credibility of the witnesses, the
              weight and value of the evidence, and resolution of
              conflicts in the evidence are matters entrusted to the trial
              judge as the trier of fact. The party prevailing in the trial
              court is entitled to the strongest legitimate view of the
              evidence adduced at the suppression hearing as well as
              all reasonable and legitimate inferences that may be
              drawn from that evidence. So long as the greater weight
              of the evidence supports the trial court's findings, those
              findings shall be upheld. In other words, a trial court's
              findings of fact in a suppression hearing will be upheld
              unless the evidence preponderates otherwise. We also
              note that this standard of review is consistent with Tenn.
              R. App. P. 13(d), which provides that in civil cases,
              findings of fact by a trial court are presumed correct
              "unless the preponderance of the evidence is otherwise."

                                            10
              Hereafter, the proper standard to be applied in reviewing
              suppression issues is the "preponderance of the
              evidence" standard.

Id. at 23 (emphasis added). If construed broadly, portions of the paragraph imply

that all factual determinations a trial judge must make before deciding to admit

evidence are subject to the Odom standard; since Odom, however, our court has

continued to apply the abuse of discretion standard in the review of expert

testimony. See State v. Leroy Hall, Jr., No. 03C01-9303-CR-00065, slip op. at 28

(Tenn. Crim. App., at Knoxville, Dec. 30, 1996) ("the trial court's ruling [to allow the

expert testimony] was within its discretion and was appropriate"); State v. Terrance

B. Pulliam, No. 02C01-9507-CR-00206, slip op. at 9 (Tenn. Crim. App., at Jackson,

Oct. 22, 1996), perm. to app. filed, Dec. 24, 1996; State v. James Ryion, No.

01C01-9511-CC-00365, slip op. at 14 (Tenn. Crim. App., at Nashville, Dec. 30,

1996), perm. to app. filed, Feb. 12, 1997. Our courts have also continued to use the

abuse of discretion standard in reviewing chain of custody issues. See State v.

Kirby G. Thurmon, No.02C01-9512-CR-00375, slip op. at 8 (Tenn. Crim. App., at

Jackson, Oct. 17, 1996), perm. to app. filed, Dec. 16, 1996.



              Odom dealt specifically with the standard of review of a trial court's

determination that a confession was voluntary. 928 S.W.2d at 22-23. All of the

cases cited in Odom concern the admissibility of evidence allegedly obtained in

violation of the Fourth or Fifth Amendment. Id. It is our view that admissibility of

breath test evidence is more closely akin to admissibility of expert testimony than it

is to determinations on the admissibility of illegally seized evidence. As indicated by

the cases cited above concerning the standard of review of the admissibility of

expert testimony and the determination that the chain of custody has been satisfied,

the Odom standard of review has not been interpreted as applying to every single

factual determination a trial judge must make before deciding to admit evidence.

See also State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996) (In discussing the

                                           11
admissibility of hearsay statements under the medical diagnosis exception, our

supreme court, post-Odom, stated, "It is well established that trial courts have broad

discretion in determining the admissibility of evidence, and their rulings will not be

reversed absent an abuse of that discretion.")



              Accordingly, we conclude the appropriate standard of review is

whether the trial court abused its discretion. Using this standard, we cannot find

error in this case. The evidence is not overwhelming either way. There is, however,

a modicum of proof to support the trial court's determination that the testing officer

more probably than not followed the correct procedures in this case. Officer Foister

insisted that he was certain he had followed the correct procedures, notwithstanding

his failure to recall the specifics. The officer was able to testify to the correct

procedures. The test results printout shows that the officer tested a blank against a

standard and then tested a blank against the defendant's breath. Officer Manning

testified that he observed the defendant for the requisite twenty minutes and then

witnessed the breath test. Obviously, the trial judge is in a better position than we to

assess the officer's credibility. Thus, it is our conclusion that the trial court did not

abuse its discretion by admitting the results. The state might consider the use of a

checklist so as to more closely adhere to the Sensing requirements.



              Accordingly, the judgment of conviction is affirmed.



                                            __________________________________
                                            Gary R. Wade, Judge

CONCUR:



__________________________________
Joseph M. Tipton, Judge




                                            12
_________________________________
Curwood Witt, Judge




                                13
