        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               November 17, 2009 Session

               STATE OF TENNESSEE v. CHAD NICHOLAS HALE

               Direct Appeal from the Circuit Court for Dickson County
                No. 22CC-2008-CR-536      Allen Wallace, Senior Judge




                No. M2009-00696-CCA-R3-CD - Filed November 2, 2010


Defendant, Chad Nicholas Hale, was convicted of driving under the influence (DUI) per se,
a Class A misdemeanor. He was sentenced to eleven months, twenty-nine days to serve 10
days by incarceration and the balance suspended and served on probation. On appeal,
Defendant contends that the trial court erred by failing to suppress the results of his breath
alcohol content test. After a thorough review of the record, we affirm the judgment of the
trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
C AMILLE R. M CM ULLEN, JJ., joined.

Timothy V. Potter and Lindsay C. Barrett, Dickson, Tennessee, (on appeal); and Mitchell B.
Dugan, Dickson, Tennessee, (at trial), for the appellant, Chad Nicholas Hale.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Dan M. Alsobrooks, District Attorney General; and Kelly Jackson, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                         OPINION

I. Background

       Trial

       On the evening of May 13, 2008, Deputy Randy Bruso of the Dickson County
Sheriff’s Department observed a 2006 Chevrolet Colorado, driven by Defendant, fail to stop
at a stop sign on Highway 48 North traveling toward Charlotte, Tennessee. Deputy Bruso
did not immediately activate his blue lights because there was no safe place to pull over;
however, he turned on the video equipment. Deputy Bruso followed Defendant, whose
driving was “[e]rratic,” and he observed Defendant’s vehicle cross the center line several
times into the oncoming lanes of traffic. He determined that Defendant was driving around
seventy miles per hour by pacing him, but he did not issue Defendant a speeding ticket
because he could not be sure of his speed. The posted speed limit is fifty-five miles per hour.
Once he and Defendant entered the Charlotte city limits, Deputy Bruso activated his blue
lights in an area where he could safely stop Defendant. After passing several parking lots,
Defendant finally pulled into the parking lot of the Murphy’s Cee Bee store.

        When Deputy Bruso approached Defendant’s vehicle, he immediately smelled an odor
of alcohol coming from the truck. Defendant told him that he had “drank six beers and had
one shot.” Deputy Bruso testified that Defendant also said that “[h]e had drank way too
much to be driving. . .” He then asked Defendant to perform several field sobriety tests.
Deputy Bruso testified that Defendant performed poorly on the heel to toe test because he
was “slightly unsteady on his feet, and he missed touching his heel to his toe numerous
times.” Defendant also performed poorly on the one-leg stand by touching his foot to the
ground on counts seven and sixteen. Deputy Bruso testified that he also asked Defendant to
recite the alphabet beginning with the letter E. He said that Defendant softly recited the
letters A through D, “then he began reciting E and went all the way up to Z.” At the
conclusion of the alphabet test, Deputy Bruso placed Defendant under arrest and transported
him to the Dickson Police Department. Defendant signed an implied consent form and
submitted to a breath alcohol test, which indicated that his blood alcohol level was 0.16
percent.

       Supression Hearing

        At the suppression hearing, Deputy Bruso testified that after he arrested Defendant
for DUI, he read the implied consent form to Defendant, and Defendant submitted to a breath
alcohol test. Deputy Bruso testified that he administered the test in accordance with
standards of the Tennessee Bureau of Investigation (TBI), and he was also certified in
accordance with those standards. He also said that the instrument was regularly tested and
certified. Deputy Bruso testified that he observed Defendant for twenty minutes prior to
administering the test, and he did not have any foreign matters in his mouth, and he did not
smoke, regurgitate, or drink any alcoholic beverage. He then followed the instrument’s
prescribed operation procedures and conducted the test in accordance with the way that he
had been trained. The instrument produced a printout, which Defendant signed.




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        On cross-examination, Deputy Bruso testified that he performed the testing procedures
according to the standards and operating procedures promulgated by the Forensic Services
Division of the TBI. He said, “ Basically the machine tells you everything to do.” Deputy
Bruso testified that he received instructions on how to operate the “Intoximeter E-C-I-R two”
at the Tennessee Law Enforcement Academy and in Montgomery County where he formerly
was a deputy sheriff. He also testified that the instruction manual was located with the
machine for reference if there were any questions about its operation. Deputy Bruso testified
that he was certified to operate the “Intoximeter E-C-I-R two” but he did not have any
documentation with him. Concerning his certification, the following exchange took place:

       Q:     So when were you specifically certified to operate the E-C-I-R two?

       A:     When I went through the Academy in 1996.

       Q.:    You were certified with this specific machine?

       A.:    It was one of the two; I don’t know which two [sic].

       Q.:    You don’t recall which two [sic]?

       A.:    No.

       Q.:    Was it possibly the 3000?

       A.:    It - - it may have been.

       Q.:    Okay.

       A.:    Uh, the people in Montgomery County, they, uh, did certify me on the
              number two one.

       Q.:    In Montgomery County?

       A.:    Yeah.

       Q.:    On the number two; that’s the machine that - - that the Dickson Police
              use?

       A.:    Same one.



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       Q.:     Same one. And who certified you on that one?

       A.:     It was the T-B-I [sic].

       Q.:     T-B-I [sic]. And do you have that certification with you, sir?

       A.:     No, I do not.

       Q.:     Okay. And when did you - - do you know when this happened; this
               transpired?

       A.:     Uh, I don’t recall that.

       Q.:     No - - no date?

       A.:     No.

       Deputy Bruso testified that to the best of his knowledge, Defendant did not have any
foreign matter in his mouth prior to the breathalyzer test, although he did not look directly
into Defendant’s mouth to see if he had anything in his mouth. Deputy Bruso testified that
he observed Defendant for twenty minutes prior to administering the test, and he knew that
Defendant had not consumed any alcohol or smoked while in his custody. He said that
Defendant sat in front of him for the entire twenty-minute period chained to a railing.
Deputy Bruso testified that he took a mouthpiece out of a drawer in front of the machine.
He said that Defendant was “standing there right next to me” when he placed the mouthpiece
on the machine. On redirect, Deputy Bruso testified that if he had not followed proper
operating procedure, the machine would have aborted itself, and in Defendant’s case, the
machine did not abort itself.

       Defendant testified that Deputy Bruso did not watch him for the entire twenty minutes
before administering the test. He claimed that Deputy Bruso was “doing paperwork when
I was chained to a railing” and was asking Defendant questions.

II. Analysis

       Defendant contends that the trial court in this case erred by denying his motion to
suppress the results of his breath-alcohol test because the State failed to satisfy the six
requirements set forth in State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). In that case, the
Tennessee Supreme Court established criteria for the admission into evidence of breath-
alcohol tests:

                                             -4-
       [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 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 printout record offered in evidence as the result of
       the test given to the person tested.

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

       At trial, the State must establish by a preponderance of the evidence that these six
requirements for admissibility were satisfied. State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999).
On appeal, a trial court's decision to admit a breath-alcohol test result under Sensing will be
presumed correct unless the evidence preponderates otherwise. Id.

        First, Defendant argues that the second and third requirements of Sensing were not
met because the State failed to show that (1) Deputy Bruso was properly certified in
accordance with TBI standards to operate the Intoximeter EC/IR II (2) the machine was
tested and certified by the TBI before use, installed pursuant to strict requirements, and
retested every ninety days for accuracy, and (3) the machine was working properly when
Defendant’s Breath test was performed. Deputy Bruso testified that while working as a
deputy in Montgomery County, he was certified by the TBI to operate the Intoximeter EC/IR
II. He was also certified on another machine when he went through the Law Enforcement
Training Academy in 1996. He further testified that he administered the breath-alcohol test
in accordance with TBI standards and with his training. Deputy Bruso further testified that
“[b]asically the machine tells you everything to do,” and he noted that the instruction manual
was located with the machine if there were any questions about its operation. He said that
the instrument was regularly tested and certified, and the State introduced copies of
documents to show that the TBI certified the machine and tested is accuracy on April 9,
2008, and on July 9, 2008. On both occasions, the machine was performing properly.
Deputy Bruso testified that if he had not followed proper operating procedure, the machine
would have aborted itself. In this case, Deputy Bruso identified the printout produced by the
machine with the results of the test conducted on Defendant. The printout contains the
following notations: “System Check: Passed” and “Test Status: Success.” The evidence in
this case is stronger than that offered in State v. Edison, 9 S.W.3d 75. In Edison the Supreme

                                              -5-
Court determined that the Sensing prerequisites were met and that proper procedures were
followed. Concerning the third prerequisite, the officer testified that the TBI “calibrated the
testing instrument every three months and that a document evidencing the instrument’s
certification was posted at the jail.” The Court held that although the officer “could not
specify the exact date of the last maintenance check performed, this lack of specificity does
not detract from his testimony.” Edison, 9 S.W.3d at 78. We also note that Defendant did
not provide any evidence that the breath test was inaccurate. Therefore, we conclude that the
evidence supports, by a preponderance of the evidence, that the second and third
requirements under Sensing were met.

       Finally, Defendant asserts that the fourth requirement of Sensing was not met because
the twenty-minute observation period was not satisfied. The twenty-minute observation
requirement carries with it two distinct elements. First, the officer must have observed the
defendant for twenty-minutes. State v. Arnold, 80 S.W.3d 27, 29 (Tenn. Crim. App. 2002).
“An officer may not guess, estimate or approximate the amount of time the subject was under
observation.” Second, “the State must establish that the subject did not smoke, drink, eat,
chew gum, vomit, regurgitate, belch or hiccup during the twenty minutes prior to taking the
test.” Id. (citations omitted). The reason for the twenty-minute observation period is to
ensure that no foreign matter is present in the defendant's mouth that could retain alcohol and
potentially influence the results of the test. Sensing, 843 S.W.2d at 416.

        In State v. McCaslin, 894 S.W.2d 310 (Tenn. Crim. App. 1994), the officer testified
that he placed the defendant in the backseat of his patrol car and drove away from the arrest
scene at 2:20 a.m. The officer testified that the drive to the police station took approximately
ten minutes. The officer administered the breath-alcohol test at 2:46 a.m. Id. at 310.
Although the defendant was in the officer's presence for the entire twenty-minute period, the
officer continuously observed the defendant for only sixteen minutes at the police station
prior to administering the breath test. Id. at 311. This Court concluded that the officer could
not adequately observe the defendant in the patrol car while driving to the police station. Id.
at 312.

        In State v. Deloit, 964 S.W.2d 909 (Tenn. Crim. App. 1997), the officer observed the
defendant for fifteen minutes while conducting field sobriety tests. The officer then watched
defendant in the rearview mirror of the patrol car for an additional ten to thirteen minutes
while he completed paperwork in the front seat of the patrol car. The officer admitted that
he could not see the defendant while he was writing. Id. at 915. This Court held that the
officer did not satisfy the twenty-minute observation period because he did not continuously
observe the defendant for the requisite twenty minutes. Id. at 916.




                                              -6-
        In State v. Arnold, 80 S.W.3d 27 (Tenn. Crim. App. 2002), two officers transported
the defendant to the jail. Both officers sat in the front seat of the patrol car, and Defendant
sat handcuffed in the backseat of the patrol car. The testing officer testified that he did not
continuously observe the defendant during the drive to the jail. One of the officers testified
that he took his eyes off the defendant periodically during the drive and while exiting the
vehicle, but the defendant did not belch, regurgitate, or place anything in his mouth during
the twenty-minutes prior to the breath alcohol test. Id. at 28. This Court held that the State
failed to establish by a preponderance of the evidence that the officers complied with the
fourth Sensing requirement. The Court could not conclude that the twenty-minute
observation was satisfied because of evidence of distractions such as road noise and noise
from the police radio and the fact that the defendant was alone in the backseat of the patrol
car. Id. at 30-31.

       In State v. Korsakov, 34 S.W.3d 534 (Tenn. Crim. App. 2000), the officer testified that
he observed the defendant from the time they arrived at the jail at 2:45 a.m. until he
administered the test at 3:19 a.m. The officer stood across from the defendant and filled out
paperwork during that time period. The officer testified that he would have heard or smelled
anything that defendant did that could have corrupted the test results. Id. at 538. This Court
held that although Sensing does not require an “unblinking gaze for twenty minutes,” “the
officer must be watching the defendant rather than performing other tasks.” Id. at 541.

      In State v. Harold E. Fields, No. 01C01-9412-CC-00438, 1996 WL 180706 (Tenn.
Crim. App. 1996), no perm. to app. filed, this Court stated as follows:

       That an officer remained in the room with the defendant for twenty minutes
       prior to testing will not satisfy the requirements of Sensing. Sensing requires
       the State to establish that during those twenty minutes nothing occurred which
       would compromise the validity of the breath alcohol test. Where an officer
       can testify that he or she continuously observed the test subject, with his or her
       eyes, for the entire twenty-minute observational period, the State will in almost
       all cases be able to meet this requirement of Sensing.

       In the present case, Deputy Bruso testified that he observed Defendant for twenty
minutes prior to administering the breath test. To the best of his knowledge, although he did
not look directly into Defendant’s mouth, Defendant did not have any foreign matters in his
mouth prior to the test. Deputy Bruso specifically testified that Defendant did not smoke,
regurgitate, or drink any alcoholic beverage. He knew that Defendant had not consumed any
alcohol or smoked while in his custody. Deputy Bruso testified that Defendant was in front
of him for the entire twenty-minute period chained to a railing. Although there was
testimony that Deputy Bruso took a mouthpiece out of a drawer at some point and placed it

                                              -7-
on the machine, Deputy Bruso testified that Defendant was “right next to” him when he
performed this task. He also testified that it was the last task that he performed.

       As noted above, this Court had held that Sensing does not require an “unblinking gaze
for twenty minutes.” State v. Korsakov, 34 S.W.3d at 541. In State v. Gregory L. Parker,
No. M1999-0209-CCA-R3-CD, 1999 WL 1296018 (Tenn. Crim. App. Dec. 30, 1999) perm.
to appeal denied (Tenn. Oct. 23, 2000), the evidence demonstrated that the defendant
performed a field sobriety test for six minutes prior to a nineteen-minute observation period
before the breath test was administered. The officer testified that the defendant did not
“belch, regurgitate, smoke, drink, or put anything into his mouth” in the minutes before the
observation period began. On cross-examination, the officer conceded that the defendant
“could have belched while he had his back turned as he walked to the patrol car, but he saw
no indication of that.” Id. at 1. This Court held that the twenty-minute observation period
was satisfied “[b]ecause the officer was in close proximity of the defendant for a six-minute
interval preceding the nineteen-minute observation period and there was no indication of
regurgitation during the entire time.” Id. at 2. In State v. Brad Stephen Luckett, No. M2000-
00528-CCA-R3-CD, 2001 WL 227353 at *4 (Tenn. Crim. App. Mar. 8, 2001), this Court
found:

        We find the purpose of the observation period is satisfied where, as here, the
       officer remains in very close proximity to the defendant for the entire time,
       engages him or her in conversation (which would assist in determining the
       presence of foreign matter in the mouth), and loses direct eye contact for only
       brief intervals of time. In this case, Officer Jones testified that, during the
       twenty-minute observation period, he was within one and one-half feet of the
       defendant except for a twenty to thirty second interval when he was no more
       than four feet away. Officer Jones testified that, during this time, he neither
       saw nor heard anything to indicate that the defendant had any foreign matter
       in his mouth. We acknowledge the officer’s candid admission that, during the
       brief time he rolled back in his chair and turned to retrieve some forms, he
       could not be “100 percent” certain that the defendant did not put anything in
       his mouth. However, if a suspect so much as coughed or sneezed and
       simultaneously raised his hand to his mouth, the observing officer would
       similarly not be able to testify to “100 percent” certainty. In our view, Sensing
       does not require 100 percent certainty. Rather, the State must establish by a
       preponderance of the evidence that the defendant's mouth was free of foreign
       matter for a period of twenty minutes prior to his taking the breath-alcohol test.
       Here, the State succeeded in meeting that burden.




                                              -8-
See also State v. Stanley E. Chatman, No. M2002-02418-CCA-R3-CD, 2003 WL 22999438
(Tenn. Crim. App. Dec. 23, 2003) perm. to appeal denied (Tenn. June 7, 2004)(The fact that
the officer may have looked away from the defendant for a second to check his watch does
not invalidate the entire observation period).

        While a review of the evidence in this case indicates that at some point before
administering the breath test, Deputy Bruso entered information into the machine, and
reached into a drawer, and took out a mouthpiece, and placed it on the machine, it is unclear
when these took place. The computer printout with the results of Defendant’s breath test
indicates that the observation timer began at 21:02:43, and the test was administered at
21:24:08. As pointed out by the State, Deputy Bruso could have entered Defendant’s
information into the machine before the observation time began. Further, Deputy Bruso
testified that the last thing he did before administering the test was place the mouthpiece on
the machine. Deputy Bruso testified that he kept his eyes on Defendant for the entire twenty
minutes. Even if he reached in a drawer to remove a mouthpiece and place it on the machine
during the observation period, this does not invalidate the entire observation period because
Deputy Bruso was in close proximity to Defendant and would have lost eye contact with
Defendant for only brief intervals of time. The trial court clearly accredited the testimony
of Deputy Bruso that he observed Defendant for the entire twenty-minute period before
administering the breath alcohol test, and the evidence does not preponderate against the trial
court’s finding.

        After reviewing the facts of this case, we conclude that the State met its burden, and
the trial court properly admitted into evidence the breath-alcohol test. Defendant is not
entitled to relief in this appeal.

                                      CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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