         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     May 13, 2003 Session

                STATE OF TENNESSEE v. STEVEN A. NORVELL

                    Appeal from the Criminal Court for Davidson County
              Nos. 2001-T-520 and 2002-T-195   Frank G. Clement, Jr., Judge



                  No. M2002-01866-CCA-R3-CD - Filed December 12, 2003


The defendant, Steven A. Norvell, was convicted by a Davidson County Criminal Court jury of
driving under the influence (DUI), third offense, a Class A misdemeanor. The trial court sentenced
him to eleven months, twenty-nine days to be served as one hundred forty days in jail and the
remainder on probation. In addition, the trial court ordered that he participate in an alcohol
evaluation and treatment program, suspended his driving privileges for three years, and imposed a
one thousand one hundred dollar fine. The defendant contends that the evidence is insufficient to
support his conviction because the state offered no proof that the result of his breathalyzer test was
accurate. We affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN E.
GLENN, JJ., joined.

M. Scott Collins, Nashville, Tennessee, for the appellant, Steven A. Norvell.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Jennifer Stribling Tackett and Scott R.
McMurtry, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

         Officer Edwin Krenk of the Metropolitan Nashville Police Department (Metro Police)
testified that on June 1, 2001, at about 2:20 a.m., he saw the defendant drive through the intersection
of Broadway and Eighth Avenue with no headlights. He said he stopped the defendant and
approached the defendant’s white pickup truck. He said he noticed a strong smell of alcohol and
asked to see the defendant’s driver’s license. He said that the defendant fumbled while getting the
license, that the defendant’s moves appeared calculated, that the defendant’s eyes were extremely
red and watery, and that the defendant’s speech was slurred.
        Officer Krenk testified that he asked the defendant to step out of the truck and take field
sobriety tests. He said that the defendant agreed to take the tests and that he gave the tests in
accordance with his training. He said that the area was well lit, that he instructed the defendant on
the one-leg stand and the walk and turn tests, and that he demonstrated both tests to the defendant.
He said he could not remember if he asked the defendant to repeat the instructions to him. He said
the defendant performed the tests and showed indications of intoxication on both. He said that on
the walk and turn test, the defendant scored six out of eight possible indicators of intoxication and
that on the one-leg stand, the defendant scored two out of four possible indicators of intoxication.

        Officer Krenk testified that he arrested the defendant, read the defendant his implied consent
rights, and asked the defendant if he understood those rights. He said the defendant said yes and
agreed to take a breathalyzer test. He said he placed the defendant into the back of his patrol car and
watched the defendant for twenty minutes before giving him the breathalyzer. He said the defendant
did not drink any alcohol, regurgitate, smoke, or have anything in his mouth during that time. He
said that after the observation period, he instructed the defendant on how to take the breathalyzer.
He said that before the defendant took the breath test, the defendant stated that he had consumed six
beers and that he was going to fail the test. He said that he gave the defendant the breath test and
that the defendant’s blood alcohol content (BAC) registered 0.12% at 2:54 a.m. Officer Krenk
identified the defendant’s test slip, which had the defendant’s fingerprint on it, and the test slip was
admitted into evidence. He said there was no doubt in his mind that the defendant was driving while
impaired.

         Officer Krenk testified that he has an Intoxilyzer 1400 in his patrol car and that he was
certified in May 2000 by the Tennessee Bureau of Investigation (TBI) to use the Intoxilyzer 1400.
He said that his Intoxilyzer 1400 is calibrated and certified by the TBI every ninety days and that it
had been certified by the TBI on March 28, 2001. The machine’s certificate was admitted into
evidence and states that it met the performance standards established by T.C.A. § 38-6-104(g) and
that it was found to perform within the standards adopted in Section 5 of the TBI’s standards for
scientific instruments to measure breath alcohol. Officer Krenk testified that the Metro Police gives
each Intoxilyzer a “wet bath” during every shift, that he gave the breathalyzer test in accordance with
the TBI’s standards, that the Intoxilyzer 1400 was working properly on the night of June 1, and that
the defendant’s test was a completed test. He said that if the Intoxilyzer 1400 had not been working
properly, it would not have completed the test.

        On cross-examination, Officer Krenk testified that the only problem he saw with the
defendant’s driving was that the defendant had no headlights. He said that all police officers were
trained to perform the field sobriety tests in the same way and that officers could take into account
different variables such as a person’s height and weight. He said that there was no way to input such
variables into the breathalyzer machine and that it measured all people the same, regardless of height,
weight, and gender factors. He said that the flashing blue lights on the front of his patrol car were
turned off and not shining on the defendant’s face during the field sobriety tests. He said that the
field sobriety tests were administered on the sidewalk and that there was very little traffic.



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        Officer Krenk testified that while he instructed the defendant on the walk and turn test, he
made the defendant stand heel to toe on a line. He said that this is not a normal stance and that
people may try to balance themselves on something when standing heel to toe. He said that the
defendant tried to balance on something, that the defendant began the task before being instructed
to do so, that the defendant could not keep his balance during the test, that the defendant did not
touch heel to toe on all nine steps, and that the defendant stepped off the line during the test. He said
that these are all indicators of intoxication. He said that officers are trained to give a little leeway
on touching heel to toe and that the defendant took nine steps as required by his instructions. He said
that indicators of intoxication for the one-leg stand test are whether the subject puts his or her foot
down, whether the subject keeps both hands to the side, and whether the subject hops to keep
balance. He said that the defendant raised his arms and hopped throughout the test and that the
defendant’s count was off.

        Officer Krenk testified that he gave his Intoxilyzer 1400 to the TBI every ninety days for
certification and that he was not present when it was certified. He acknowledged that he was not a
scientist and that his job did not require him to know the science behind the Intoxilyzer. He said that
he could not explain how the Intoxilyzer converted a breath alcohol measure into a blood alcohol
measure and that he could not prove that the science behind the breathalyzer machine was good
science as opposed to junk science. He acknowledged that he could not prove the machine was
accurate. The jury convicted the defendant of driving with a blood alcohol concentration of 0.10%
or greater.

         The defendant argues that the evidence is insufficient to support his conviction because the
state offered no proof that the breathalyzer test result was accurate. The state responds that the
breath test results were admitted in accordance with State v. Sensing, 843 S.W.2d 412 (Tenn. 1992),
and, therefore, that the evidence is sufficient to support the conviction. We believe that the evidence
is sufficient.

        Our standard of review when the sufficiency of the evidence is questioned on appeal 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. 2781, 2789 (1979). This means that we do not reweigh the
evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

        Tennessee Code Annotated § 55-10-401(a)(2) provides in pertinent part that

                [it] is unlawful for any person to drive or to be in physical control of
                any automobile or other motor driven vehicle on any of the public
                roads and highways of the state, or on any streets or alleys, or while
                on the premises of any shopping center, trailer park or any apartment



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               house complex, or any other premises which is generally frequented
               by the public at large, while:

               ....

               (2) The alcohol concentration in such person’s blood or breath is ten-
               hundredths of one percent (.10%) or more.

The plain language of the statute does require the state to show that the defendant’s blood alcohol
concentration was .10 percent or more at the time the defendant was driving.

        In Sensing, our supreme court addressed the necessary foundation that the state must
establish in order to admit breath test results from an Intoximeter 3000. Before Sensing, the
certified operator of the test machine had been required to know the scientific technology behind the
machine’s function. Id. However, in Sensing, the court held that in order for the test results to be
admissible evidence in a DUI by impairment case, the testing officer only had to testify as to the
following six prerequisites:

               (1) that the tests were performed in accordance with the standards and
               operating procedures 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 not have foreign matter in
               his mouth, did not consume any alcoholic beverage, smoke, or
               regurgitate,

               (5) evidence that he followed the prescribed operational procedure,

               (6) identify the print-out record offered in evidence as the result of the
               test given to the person tested.

Id. at 416. Once the state satisfied the prerequisites, the test result was admissible, and a BAC of
0.10% or more created a rebuttable presumption of intoxication. See T.C.A. § 55-10-408(a) (2002)
(amended 2003). However, the court stated that a defendant was free “to challenge the accuracy of
the particular machine, the qualifications of the operator, and the degree to which established testing
procedures were followed.” Sensing, 843 S.W.2d at 416. “Such challenges, however, go only to


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the weight of the evidence as distinguished from its admissibility.” State v. Edison, 9 S.W.3d 75,
77 (Tenn. 1999).

        The defendant contends that the state failed to prove that his breathalyzer test result of 0.12%
was an accurate measure of his BAC because the state failed to establish the accuracy of the
Intoxilyzer 1400. While he admits that the test result was properly admitted into evidence under the
six Sensing prerequisites, he argues that Sensing did not establish a presumption of reliability as to
the accuracy of the test result in this case because Sensing creates such a presumption only with
regard to a DUI by impairment charge, not a charge of DUI per se. However, in State v. Conway,
77 S.W.3d 213, 220 (Tenn. Crim. App. 2001), this court stated that

                  [Sensing] did not address DUI per se under Tenn. Code Ann. §
                  55-10-401(a)(2) as this portion of the statute had not been enacted at
                  the time of Sensing.

                          Nevertheless . . . we see no reason to require expert testimony
                  for breath test results for DUI per se, while not requiring expert
                  testimony to establish an inference for DUI by impairment. We find
                  nothing in the constitution, statutes or rules that would require
                  different treatment, and this court is not at liberty to engraft such a
                  requirement.

Thus, if the Sensing prerequisites are met in a DUI per se case, the reliability of breath test results
is presumed without expert testimony.

        Procedurally, we believe the defendant’s arguments about reliability beg the question. If a
scientific test is not reliable, then its results are irrelevant to the issues on trial and potentially
prejudicial. Therefore, the results of the test would be inadmissible. Here, the defendant allowed
the test results into evidence and acknowledged that it was properly admitted under the Sensing
requirements. However, application of the Sensing requirements to the Intoxilyzer 1400 for the
purpose of admissibility necessarily presupposed the reliability of the device to measure blood
alcohol.1

           Given these circumstances, pursuant to Conway, the state was not required to present expert
testimony to prove the accuracy of the test results. Officer Krenk testified that he was certified to
administer breath tests with the Intoxilyzer 1400, that he performed the defendant’s breath test in
accordance with the TBI’s standards, that his test machine had been certified by the TBI less than
ninety days before the defendant’s DUI arrest, and that his machine would not have completed the
test if it had been working improperly. We also note that the defendant did not provide any evidence
of the test’s inaccuracy. We conclude that the jury was entitled to accredit the results of the breath


         1
           The question of whe ther the Intoxilyzer 140 0 is a scientifically reliable brea th test machine whose
reliability is sufficient to allow the Sensing factors to app ly has not been raised and is not befo re us.

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test and the evidence is sufficient to support the defendant’s conviction of driving with a blood
alcohol content of .10 percent or more.

       Based upon the foregoing and the record as whole, we affirm the judgment of the trial court.



                                                    ___________________________________
                                                    JOSEPH M. TIPTON, JUDGE




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