         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON              FILED
                     SEPTEMBER 1998 SESSION      December 10, 1998

                                                 Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,            )
                               )    NO. 02C01-9711-CR-00444
      Appellee,                )
                               )    SHELBY COUNTY
VS.                            )
                               )    HON. L.T. LAFFERTY,
RONNIE L. GRAHAM,              )    JUDGE
                               )
      Appellant.               )    (DUI)



FOR THE APPELLANT:                  FOR THE APPELLEE:

TERRY D. SMART                      JOHN KNOX WALKUP
371 Carroll Avenue                  Attorney General and Reporter
Memphis, TN 38105
                                    PETER M. COUGHLAN
                                    Assistant Attorney General
                                    Cordell Hull Building, 2nd Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    J. ROBERT CARTER, JR.
                                    Assistant District Attorney General
                                    Criminal Justice Complex
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN 38103-1947




OPINION FILED:



REVERSED AND REMANDED



JOE G. RILEY,
JUDGE
                                          OPINION



      Defendant was convicted by a Shelby County jury of driving under the

influence of an intoxicant in violation of Tenn. Code Ann. § 55-10-401. The trial

court fined him $600 and sentenced him to serve 45 days, all but 48 hours

suspended, followed by 11 months and 29 days on probation. In cross-appeals the

defendant challenges the admissibility of breath alcohol test results from a Siemens

Alcomat device; the state challenges the sentence imposed. This court concludes

that the test results were erroneously admitted and that the sentence imposed was

improper. Thus, we REVERSE AND REMAND with the admonition that should

defendant be found guilty upon retrial, the proper sentence is 11 months and 29

days with an appropriate portion of that sentence suspended and the balance on

probation.




                                            FACTS



      Defendant was arrested for driving a motor vehicle while under the influence

of an intoxicant on June 27, 1996, in Shelby County. He was given a breath alcohol

test by Officer Harold Stabe of the Metro DUI Unit using a Siemens Alcomat Breath

Testing Instrument. Defendant registered 0.14% BAC.

       The trial court denied defendant’s pre-trial motion to allow into evidence a

letter from the Assistant Director of the Tennessee Bureau of Investigation to

Shelby County Sheriff A.C. Gilless denying approval and certification of the

Siemens Alcomat Breath Testing Instrument.1


      1
          The letter is dated July 19, 1996, and reads in relevant part:

      “As a result of two (2) recent Tennessee Supreme Court rulings regarding
      the interpretation of TCA § 38-6-103(a); State v. Sensing, (1992) and State
      v. Bobo, (1995), your office requested a meeting with the TBI to discuss
      the issue of certification of breath alcohol testing instruments currently
      utilized in Shelby County by the Metro DUI Unit. At that meeting held
      April 19, 1996, Mr. Don Strawther and Officer Richard Mills were
      informed that in order for TBI to certify your instrument, it would have to

                                               2
       At trial, Officer Stabe testified about his training to become a member of the

Metro DUI Unit, his experience administering breath alcohol tests and his

experience testifying in court as to their results.          He further testified that he

underwent all training on the Alcomat; that maintenance of the machines was

another officer’s responsibility; and he described the Alcomat’s self-testing capability

which prevents the acceptance of a breath sample if the machine is not functioning

properly. Over defendant’s objection, his test result was admitted into evidence

based upon Officer Stabe’s testimony.




                    ADMISSIBILITY OF BREATH TEST RESULT



       Defendant charges multiple errors on the part of the trial court. However, his

argument basically challenges the admissibility of the breath test result where

neither the requirements of State v. Sensing, 843 S.W.2d 412 (Tenn. 1992) nor

Tenn. R. Evid. 702 and 703 were met.2


       undergo an evaluation process by TBI Forensic Services Division as every
       instrument certified by the TBI has done. On May 31, 1996, your office
       delivered to TBI Forensic Services Division a Siemens Alcomat Breath
       Alcohol Testing Instrument for scientific appraisal.

       “Minimum Standard #6 of TBI’s Minimum Standards for the Scientific
       appraisal of the capabilities of Breath Alcohol Instrument states:
       ‘Substances which are produced endogenously and appear in the breath
       shall not contribute to the apparent blood alcohol concentration (acetone
       and ketones, etc.).’ The Alcomat instrument would not discriminate an
       interfering substance (acetone) from ethyl alcohol.

       “Based upon the TBI Forensic Service Division Minimum Standards for
       the Scientific Appraisal of the Capabilities of Breath Alcohol Instruments
       dated June 1, 1996, the Siemens Alcomat Breath Alcohol Instrument
       cannot be approved and certified by the TBI. Attached is a copy of a
       memorandum from Forensic Scientist Supervisor William Heaney, Breath
       Alcohol Unit, outlining the basis for the decision.”
       2
         Tenn. R. Evid. 702. If scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.
        Tenn. R. Evid. 703. The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made known to the expert at
or before the hearing. If of a type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject, the facts or data need not be

                                              3
       In response, the state argues that Shelby County is not required to comply

with Sensing and essentially concedes non-compliance with the Tennessee Rules

of Evidence standards for expert witnesses. The state asks this court to recognize

the reliability of breath alcohol testing devices in general and to create a relaxed

standard of admissibility for the Alcomat as did Sensing for the Intoximeter 3000.

This, it claims, will “give meaning and purpose to the separate training given to

Davidson and Shelby County officers . . . and put Shelby and Davidson Counties

on equal footing with other Tennessee counties.”

       In light of controlling case law, we decline the state’s invitation. See

generally, State v. Bobo, 909 S.W.2d 788 (Tenn. 1995)(interpreting the Sensing

standards as threshold prerequisites to admissibility of test results as opposed to

factors in determining the weight of evidence), and State v. Deloit, 964 S.W.2d 909

(Tenn. Crim. App. 1997)(requiring the state to establish a proper foundation for

admissibility under Tenn. R. Evid. 702 and 703 in the event the Sensing

requirements are not met).

       Sensing established the now familiar threshold prerequisites for admissibility

of breath alcohol testing device results without the benefit of expert testimony. For

the test results to be admissible, a testing officer must testify (1) the tests were

performed in accordance with TBI standards and operating procedure; (2) he or she

was properly certified in accordance with those standards; (3) the instrument used

was certified by the TBI, tested regularly for accuracy and working properly when

the test was performed; (4) the motorist was observed for 20 minutes prior to the

test, and during this period, did not have foreign matter in his mouth, consume any

alcohol, smoke, or regurgitate; (5) he or she followed prescribed operational

procedure; and (6) identify the printout record as the result of the test given to the

person tested. Sensing, 843 S.W.2d at 416.

       While noting the fact that Shelby and Davidson Counties do not subscribe

to the TBI program, the Sensing court did not endeavor to establish the standards




admissible in evidence. The court shall disallow testimony in the form of an opinion or
inference if the underlying facts or data indicate lack of trustworthiness.

                                            4
needed to create a presumption of admissibility in those counties. However, the

Tennessee Supreme Court in Bobo, a case out of Shelby County concerning the

Alcomat, held that “[t]he prerequisites to admissibility in Sensing are just that:

prerequisites to admissibility. They are not factors for determining the weight of the

evidence.” Bobo, 909 S.W.2d at 790. Intimating that the Sensing requirements

were necessary for the admissibility of breath alcohol test results under any and all

circumstances, the court referred to the prerequisites as “unambiguous threshold

admissibility requirements.” Id. at 789.

       A panel of this court recently interpreted the Bobo language to mean that the

state must comply with the six Sensing prerequisites when it “seeks to admit the test

results through the testimony of [a] non-expert testing officer.” Deloit, 964 S.W.2d

at 914. However, this “would not prevent the state from establishing the more

stringent foundation for admission of test results as set out in Tenn. R. Evid. 702

and 703.” Id. The court concluded that the state has the option to proceed under

either Sensing or Tenn. R. Evid. 702 and 703. Id.

       These decisions are dispositive on the issue. There are two ways to procure

the admission of breath alcohol test results into evidence: (1) prove that the

Sensing requirements are met; or (2) lay a proper foundation for admission by

meeting the requirements of Rules 702 and 703 relating to expert testimony.

       In this instance, the state met neither standard. Hence, the test result was

admitted erroneously.




                         HARMLESS ERROR ANALYSIS



       A thorough review of the remaining evidence does not convince us that the

admission of the test result was harmless. Other than the breath alcohol test result,



                                           5
there was testimony from the two officers who made the initial stop, Lawrence

Evans and Michael McCollum. Evans testified that, at approximately 11:45 p.m.,

he and his partner observed defendant’s car swerving from side to side in its lane.

It then straddled two lanes for a short distance before they pulled defendant over.

       As they approached the car, defendant got out. He was unsteady on his

feet, had bloodshot eyes, and a strong odor of an intoxicant about his body.

Defendant admitted having two drinks at a nearby bar and agreed to submit to a

field sobriety test.

       Evans administered several field sobriety tests but only recalled details about

the Horizontal Gaze Nystagmus (HGN).3 However, in Evans’ opinion, defendant did

poorly enough on all the tests to warrant calling a Metro DUI Unit to the scene for

a more thorough evaluation of defendant’s condition.

       McCollum testified defendant had a strong odor of alcohol about him, and his

speech seemed slurred. In combination with the field sobriety tests conducted by

Evans, McCollum agreed that a Metro DUI Unit should be called to the scene.

       When Officer Harold Stabe arrived, Evans and McCollum turned defendant

over to him. Officer Stabe’s interaction with defendant was videotaped. The tape

was introduced into evidence at trial and is part of the record. It shows defendant

completing another series of field sobriety tests; some successfully, but not others.

       Based upon this evidence, we are unable to conclude that the admission of

the breath alcohol test result was harmless error. Whether defendant was in

violation of T.C.A. § 55-10-401 is an issue for a jury to determine with proper

evidence.



                                    SENTENCING



       As a result of defendant’s conviction for driving under the influence, the trial

court ordered him to pay a $600 fine and sentenced him to 45 days of incarceration,



       3
       This evidence will be inadmissible upon a retrial. See State v. Murphy, 953
S.W.2d 200 (Tenn. 1997).

                                           6
all but 48 hours suspended, followed by 11 months and 29 days of probation.

       The statutes in effect at the time of this offense established 11 months and

29 days as the maximum sentence allowed for anyone convicted of DUI. Tenn.

Code Ann. § 55-10-403(a)(1). Subsection (c) provides that DUI offenders be

“required to serve the difference between the time actually served and the maximum

sentence on probation.”

       A panel of this court in State v. Combs, 945 S.W.2d 770 (Tenn. Crim. App.

1996), concluded that § 55-10-403(c) “in effect, mandates a maximum sentence for

DUI, with the only function of the trial court being to determine what period above

the minimum period of incarceration established by statute, if any, is to be

suspended.” Combs, 945 S.W.2d at 774 (emphasis added). Another panel of this

court, citing Combs, reached a simlar result. State v. David Moss, C.C.A. No.

02C01-9610-CC-00365, Lauderdale County (Tenn. Crim. App. filed November 18,

1997, at Jackson).

       We conclude that the sentence imposed in this case was improper. Trial

courts must sentence defendants found guilty of misdemeanor DUI to 11 months

and 29 days.4 Discretion may then be used to suspend whatever non-mandatory

time is appropriate. The balance shall be served on probation.




                                   CONCLUSION



       Based upon the foregoing, the judgment of the trial court is reversed and this

matter remanded for a new trial.




       4
        A fourth or subsequent DUI is a Class E felony. Tenn. Code Ann. § 55-10-
403(a)(1).

                                          7
                                   ____________________________
                                    JOE G. RILEY, JUDGE




CONCUR:




____________________________
PAUL G. SUMMERS, JUDGE




____________________________
DAVID H. WELLES, JUDGE




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