         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 18, 2001 Session

            STATE OF TENNESSEE v. BRAD STEPHEN LUCKETT

                   Appeal from the Criminal Court for Rutherford County
                           No. M-47578    J. Steve Daniel, Judge



                        No. M2000-00528-CCA-R3-CD - March 8, 2001


The Defendant was convicted by a jury of driving under the influence of an intoxicant, second
offense. In this direct appeal, the Defendant contends that the trial court erred by admitting the
results of his breath-alcohol test. The Defendant argues that the State failed to prove that he was
continuously observed for twenty minutes prior to taking the test, and that one of the requirements
for the admissibility of the test results was therefore not satisfied. We affirm the judgment of the
trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

V. Michael Fox, Nashville, Tennessee, for the appellant, Brad Stephen Luckett.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General, and William A. Osborne, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        The Defendant, Brad S. Luckett, was convicted by a jury of driving under the influence of
an intoxicant (DUI), second offense, and sentenced to eleven months, twenty-nine days, to serve fifty
days, with the balance of the sentence to be served on probation. In this direct appeal, the Defendant
contends that the trial court erred in admitting the results of his breath-alcohol test.1 Upon our
review of the record and relevant legal authority, we affirm the judgment of the trial court.

         At approximately four o’clock on the morning of January 30, 1999, Officer Jeff Jones of the
Smyrna Police Department observed the Defendant run a red light. Officer Jones initiated his blue
lights and fell in behind the Defendant. The Defendant pulled over and stopped. Officer Jones
approached the Defendant and asked to see his license, which the Defendant produced. Officer
Jones noticed the odor of alcohol on the Defendant’s breath and asked him if he had been drinking.
The Defendant responded that he had had “a couple.” Officer Jones requested the Defendant to step
out of his vehicle and to perform some field sobriety tests. The Defendant performed the one-leg
stand; the heel-to-toe; and the finger-to-nose sobriety tests. The Defendant’s performance on these
tests, together with the odor of alcohol that Officer Jones noticed and the Defendant’s admission to
having had “a couple” of drinks, led Officer Jones to arrest him for DUI.

         Officer Jones took the Defendant to the police station and seated him at the side of his desk.
Officer Jones testified that the Defendant was within an arm’s length away. The two conversed for
the majority of a period of at least twenty minutes. During this time Officer Jones watched the
Defendant while he completed some paperwork. At one point Officer Jones rolled back in his chair,
turned to reach for some forms, and lost sight of the Defendant for approximately thirty seconds.
Officer Jones admitted that he did not maintain “eye to eye” contact with the Defendant for the entire
twenty minutes. However, Officer Jones testified that he was within reach of the Defendant for the
entire time; could hear the Defendant; and had him at least in his peripheral vision for the entire time
other than when he turned to get the forms. Officer Jones testified that the Defendant did not burp,
regurgitate, vomit, smoke or eat during this time. Officer Jones further testified that he did not think
that the Defendant had anything in his mouth during the twenty minute period or at the time he
administered the breath test to the Defendant. However, he also admitted that he did not ask the
Defendant if he had any foreign matter in his mouth prior to administering the test. The results of
the test indicated that the Defendant’s blood alcohol level was .19 percent.

        The Defendant contends on this appeal that, because Officer Jones did not maintain
uninterrupted eye contact with him for the entire twenty minute period and because he did not
confirm that the Defendant had no foreign material in his mouth, the trial court should have ruled
the results of the breath test inadmissible. We respectfully disagree.

        In State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), our supreme court set forth six elements
that the State must establish before the results of a breath-alcohol test may be admitted:



         1
           Prior to trial, the Defendant filed a motion to supp ress the results of his breath-alcohol test. The trial court
denied the motion after a hearing. The Defendant subsequently objected at trial to the admissibility of the test. We have
considered the relevant testimony offered at bo th the motion hearing and at trial in determining whether the trial court
erred in ruling the breath-alcohol test results admissib le. See State v. Henning, 975 S.W.2d 290 , 299 (Tenn. 1998) (“[I]n
evaluating the correctness of a trial court’s ruling on a pretrial motion to suppress, appellate courts may consider the
proof adduced both at the suppression hearing and at trial.”)

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               1. The test was performed in accordance with the standards and
               operating procedure promulgated by the forensic services division of
               the Tennessee Bureau of Investigation;

               2. The testing officer was properly certified in accordance with those
               standards;

               3. 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. The motorist was observed for twenty minutes prior to the test,
               and during this period, did not have foreign matter in his or her
               mouth, did not consume any alcoholic beverage, smoke, or
               regurgitate;

               5. The testing officer followed the prescribed operational procedure;
               and

               6. The testing officer identifies the printout record offered in
               evidence as the result of the test given to the person tested.

See id. at 416. It is the fourth of these requirements that the Defendant claims was not satisfied in
this case.

       The purpose of the fourth requirement 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.” State
v. Cook, 9 S.W.3d 98, 100-01 (Tenn. 1999). Thus, this Court has found that

       [t]he twenty minute observation requirement of Sensing carries with it two distinct
       elements. The first is that the State must demonstrate that the Defendant was
       observed for twenty minutes. An officer may not guess, estimate or approximate the
       amount of time the subject was under observation. The second element of the
       requirement is that 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.

State v. John H. Hackney, No 01C01-9704-CC-00152, 1998 WL 85287, at *2 (Tenn. Crim. App.,
Nashville, Feb. 20, 1998); State v. Harold E. Fields, No. 01C01-9412-CC-00438, 1996 WL 180706,
at *2 (Tenn. Crim. App., Nashville, Apr. 12, 1996). In this case, Officer Jones testified that he began
the observation period at 4:04 a.m. The test was administered at 4:32 a.m. Thus, the State
established that Officer Jones observed the Defendant for twenty minutes. However, the Defendant



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contends that the observation period was not continuous and that the State has thereby failed to
satisfy the second element of the observation requirement.

         During the observation period, the Defendant sat next to Officer Jones’ desk while Officer
Jones sat behind the desk. Jones described the distance between himself and the Defendant as “[a]
foot-and-a-half, within arm’s reach.” The two conversed and Officer Jones filled out the relevant
paperwork. Jones testified that he observed the Defendant for the twenty minutes required, and the
Defendant did not smoke or drink anything or put anything in his mouth during the observation
period. He testified that he “didn't notice anything during [their] conversation that would have led
[him] to believe [the Defendant] had anything in his mouth.” Officer Jones admitted that, when he
rolled his chair back to retrieve some forms, he lost eye contact with the Defendant for twenty to
thirty seconds. Jones was, however, within four feet of the Defendant during this brief interval, and
noticed nothing via his other senses to indicate that the Defendant quickly put anything in his mouth
from either an external or internal source.

        The Defendant argues that the officer’s failure to maintain a continuous, uninterrupted
“eyeball to eyeball” watch over him renders the observation period invalid and the breath-alcohol
test thereby inadmissible. The State disagrees, arguing that Sensing does not require “completely
uninterrupted eye contact with the suspect during the entire period.”

        We first note that “[t]he state must establish compliance with Sensing by a preponderance
of the evidence.” State v. Deloit, 964 S.W.2d 909, 916 (Tenn. Crim. App. 1997). This Court, in
turn, must presume that the trial court’s Sensing decision is correct unless the preponderance of the
evidence is to the contrary. See State v. Edison, 9 S.W.3d 75, 78 (Tenn. 1999).

        This Court has wrestled with this issue on numerous occasions. In State v. Richard
Korsakov, No. EI999-01530-CCA-R3-CD, 2000 WL 968812, at *6 (Tenn. Crim. App., Knoxville,
July 13, 2000), for instance, a panel of this Court held that Sensing does not require an “unblinking
gaze for twenty minutes.” We also stated in that case, however, that “the officer must be watching
the defendant rather than performing other tasks.” Id. In Korsakov, the trial court admitted the
breath test after finding that the officer had been directly facing the defendant and would have
detected the defendant’s movements through his peripheral vision while he completed his
paperwork. Id. at *4. This Court disagreed with the trial court and found that the test should not
have been admitted: “[the officer’s] belief that he would have heard or smelled anything he did not
see does not satisfy the prerequisite that the defendant must be observed for twenty minutes.” Id.
at *6.

        In Harold E. Fields, 1996 WL 180706, another panel of this Court affirmed the trial court’s
refusal to admit a breath test on the grounds that “the deputy’s times were mere estimates and the
deputy failed to keep the [defendant] in his view for twenty minutes.” Id. at *1. During the
observation period, the deputy filled out paperwork while he was in the same room with the
defendant. This Court noted its concern that, “[w]hile often a belch or regurgitation will produce
a noise capable of being heard by another person, this is not always the case.” Id. at *3.


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        In Deloit, 964 S.W.2d at 915-16, the trial court concluded that the twenty-minute observation
period included some minutes while the defendant sat in the back of the police car as the arresting
officer filled out paperwork in the front seat. The officer testified that, during this time in the car, he
was talking to the defendant and could see the defendant via his rearview mirror. Id. at 915. The trial
court admitted the breath test, and this Court found the admission to be error, noting that “[t]he officer
conceded that he could not observe the defendant while writing on the arrest report.” Id. at 916. The
Deloit panel relied on the Fields decision as “requir[ing] that the officer ‘continuously observe[ ] the
test subject, with his or her eyes, for the entire twenty-minute observational period.’” Id. at 916-17
(quoting Harold E. Fields, 1996 WL 180706, at *3).

        In State v. Gregory L. Parker, No. M1999-00209-CCA-R3CD, 1999 WL 1296018 (Tenn.
Crim. App., Nashville, Dec. 30, 1999), the twenty-minute observation period included the time during
which the defendant performed field sobriety tests. The arresting officer testified that, during this
period, the defendant “did not belch, regurgitate, smoke, drink, or put anything into his mouth.” Id.
at *1. The officer also conceded, however, “that the defendant could have belched while he had his
back turned as he walked to the patrol car, but that he saw no indication of that.” Id. The trial court
admitted the results of the breath test upon finding that the officer had been “‘[w]ithin arm’s reach
of the defendant, watching him’ and talking ‘face-to-face’” with the defendant. Id. This Court
affirmed the trial court’s admission of the test, finding that “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 rendering our decision in this case, we return to the reason for the twenty-minute
observation period: 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.” Cook, 9 S.W.3d at 101. Our supreme
court has found that, “[i]f credible proof establishes that the subject did not have foreign matter in the
mouth, did not consume any alcoholic beverage, and did not smoke or regurgitate, then the rule is
satisfied . . . .” State v. Hunter, 941 S.W.2d 56, 57-8 (Tenn. 1997). Thus, we do not think that an
unblinking gaze is necessary to establish the emptiness of the suspect’s mouth. Indeed, as was
discovered in Cook, an unblinking gaze would not discover a suspect’s dentures, even though such
might constitute foreign matter that would affect a breath-alcohol test. See Cook, 9 S.W.3d at 101.
An unblinking gaze might not reveal a small burp either, if the observing officer were not sufficiently
close to the suspect.

         We find that 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”


                                                   -5-
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. The trial court committed no
error in admitting the breath-alcohol test results, and this issue is therefore without merit.

       The judgment of the trial court is affirmed.

                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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