State v. John Hackney ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY SESSION, 1998 February 20, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9704-CC-00152
)
Appellee, )
) RUTHERFORD COU NTY
V. )
)
) HON . JAME S K. C LAYTO N, JR.,
JOHN H. HACKNEY, ) JUDGE
)
Appe llant. ) (DUI)
FOR THE APPELLANT: FOR THE APPELLEE:
L. GILB ERT ANGL IN JOHN KNOX WALKUP
8 Lincoln Sq uare Attorney General & Reporter
1535 West Northfield Blvd.
Murfreesboro, TN 37129 KAREN M. YACUZZO
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
WILLIAM C. WHITESELL
District Attorn ey Ge neral
JOH N W. P RICE , III
Assistant District Attorney General
303 Rutherford County Judicial Bldg.
Murfreesboro, TN 37130
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, John Harold Hackney, appeals as of right his conviction of first
offense DUI following a jury trial in the Circuit Court of Ru therford County. The trial
court senten ced De fendan t to eleven (1 1) mon ths and twenty-nin e (29) da ys, with
all but four (4) days suspended. In this appeal, Defendant argues that the trial court
erred in not suppressing the results of his Intoximeter 3000 test because he was not
observed for the requis ite twenty m inute per iod prior to a dministra tion of the te st.
We affirm the ju dgme nt of the trial co urt.
On January 12, 1995, Murfreesbo ro police officer Steve Teeters was on patrol
when he noticed a truck we aving ba ck and forth going southe ast on B road Stre et.
Officer Teete rs pulled th e truck ov er at 12:0 6 a.m. D efenda nt, who was driving, had
a passe nger, Ph ilip Rainey, w ith him in the truck. Office r Teete rs noted that
Defendant smelled of alcohol, had bloodshot eyes, slurred speech, and was
somewhat unstea dy on his fe et. Defendant told Officer Teeters that he had just
come from a bar. D efendant co nsented to p erform four fie ld sobriety tests, all of
which he failed. Specifically, Defendant was first asked to recite the alphabet, but
he could only get to the letter “p.” Next, Defendant was asked to perform the foot
balancing test which consisted of holding one leg straight out with the heel of the foot
about six inch es from the gro und, w hile counting from one to twenty. Officer Tee ters
testified that Defe ndant d id not pas s this test despite the fact that h e did not have
any physical problems that would have affected his performance. Defendant was
then asked to do the finger-to-nose test. De fenda nt’s body swayed from side to side
and he was unable to ever touc h his nos e. Finally, De fendan t was ask ed to perform
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the heel-to-toe test while co unting from zero to nin e and th en nine back do wn to
zero. Officer Teeters stated that Defendant could not walk heel-to-toe and was
unable to count fro m nine back to z ero.
Based on Defendant’s driving, appearance, and performance on these tests,
Officer Teeters concluded that Defendant was driving under the influence of an
intoxicant. Defendant was arrested, handcuffed, and taken to the police department
where, according to the time o n the vid eo ca mera locate d in Teeters’ patrol car, he
arrived at 1 2:37 a.m . The pa rties stipulate d to this time .
Defendant was taken to a room at the station where the Intoximeter 3000 was
located. He signed a consent form allowing the police to a dministe r the brea th test.
According to Officer Teeters, Defendant’s passenger, Rainey, was left in a larger
outer room. Officer T eeters testified that he was with the Defendant and observed
him for the requisite twenty m inute per iod prior to a dministe ring the bre ath test.
Using the Intoxim eter 300 0, Officer T eeters a dministe red a bre ath test at 1 2:56 a.m .,
according to the clock in the Intoximeter 3000, which resulted in a blood alcohol
reading of .19 perc ent.
The trial court denied Defendant’s Motion to Supp ress the b reath test results
and they were adm itted into evidence at trial over the objec tion of D efend ant’s
coun sel.
On appeal, Defendant argues the trial court erred by admitting the breath test
evidence, since the State failed to establish that all the prerequisites were met as
established in State v. Sensing, 843 S.W .2d 412 (Tenn. 19 92). Specifically,
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Defendant argues that the offic er did not observe Defendant for twenty minutes prior
to the administration of the breath te st. In Sensing, our supreme court set forth the
criteria for the admissibility of breath test results, holding that the testing officer must
be able to testify to the following:
(1) that the tes ts were pe rformed in accord ance w ith the standards and
operating procedure promulgated by the forensic services division of
the Tennessee Bureau of Investigation,
(2) that he w as prop erly certified in a ccorda nce 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,
smok e, or regurg itate,
(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.
Id. at 416 (em phasis a dded).
The six requirements in Sensing are mandatory and must be “scrupulously
followed.” State v. Harold E. Fields, C.C.A. No. 01C01-9412-CC-00438, slip op. at
3, William son Co unty (Te nn. Crim. App., Nashville, Apr. 12, 1996) (no Rule 11
application filed). “The prerequisites to admissibility in Sensing are just tha t:
prerequisites to admissibility. They are not factors for determining the weight of the
evidenc e.” State v. Bobo, 909 S.W.2d 788, 790 (Tenn. 1995). Further, it is the
State ’s burden to establish compliance with each of the requirements. The
Defendant does not be ar any burde n to sh ow no n-com pliance. See State v.
McC aslin, 894 S.W .2d 310 , 312 (T enn. C rim. App . 1994).
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The twenty m inute obs ervation re quirem ent 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
approxim ate the amount of time the subject was under observation. The second
element of the requ iremen t is that the S tate must establish that the subject did not
smoke, drink, eat, chew gum, vomit, regurgitate, belch or hiccup during the twenty
minute s prior to tak ing the tes t. See Sensing, 843 S.W.2d at 417.
According to the vid eo ca mera clock in the patrol car, Defendant arrived at the
station at 12:37 a.m. and according to the Intoximeter 3000 clock, the breath test
was administered at 12:56 a .m. However, Officer Teeters testified that there is no
effort to synchronize the times betw een the pa trol car camera clocks, the police
station clocks, the internal Intoximeter clock or even his own wristwatch. Officer
Teeters testified he observed Defendant for the requisite twenty minute period, as
required , before a dministe ring the bre ath test.
Officer Teeters also testified that Defendant did not place any subs tance s in
his mouth or regurgitate during the observation period. Furthermore, Officer Teeters
noted that if an individua l regurgitate s and the conten ts from the stomach go into the
perso n’s mouth before the test is ad minis tered, th e Intoxim eter wo uld au toma tically
abort the test.
Defendant testified at the suppre ssion he aring an d motio n for new trial
hearing. He asserted that he was handcuffed to a water pipe at the police station,
and that while he was handcuffed Officer Teeters left the room to take Phillip Rainey
outside to the patrol car before the twenty minute observation period was over and
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before the breath test was administered. Defendant also testified that without Officer
Teeters’ knowledge, he vomited into a garbage can and used one drop of a mint
breath freshener d uring Officer Te eters’ absenc e. Defenda nt claimed he suffers
from ulcers, making it common for him to vomit several times a day. Defendant
asserted that he was unaware that these actions could affect the breatha lyzer test.
Defendant stated that he was later informe d by som eone w ith the Dis trict Atto rney’s
Office that because he regurgitated, he should not ha ve been given a breathalyzer
test, but a blood test instead.
Defendant relies on this Court’s opinion in State v. McC aslin. How ever, in
McC aslin, both parties admitted that the defendant was only observed for sixteen
minutes before the breath test was administered, thus failing to meet requirement
(4) in Sens ing. McCas lin, 894 S.W .2d at 311 ; Sensing, 843 S.W .2d at 416 . In
McC aslin, it was und isputed th at the twenty minute observation period was not
followed, and the refore, su ppress ion was approp riate. How ever, in the case sub
judice, the offic er testifie d that h e did observe the Defendant for twenty minutes prior
to the test. An officer’s testimony is sufficient to admit the test results into evidence.
W e conclude that O fficer Tee ters’ testim ony prov ided a su fficient basis to
allow the results of the breath alcohol test to be admitted. Obviously, the trial judge
is in a better position than we are to assess the officer’s credibility. Once the trial
court has determined threshold admissibility, the submission of the brea th test res ult
into evidence is un condition al. The ju ry, as the trier o f fact, has the right then to
consider all of the evidence presented and to determine its relative worth. As
Sensing indicates, the admission of the test results do not foreclose the defense
from calling the re sults into question befo re the jury, whether by cross-examination,
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presentation of witnesses, or jury argument. 843 S.W.2d at 416. The defense in the
instant case vigoro usly cro ss-exa mine d Offic er Te eters, th ereby prope rly submitting
its argument of improper testing to the jury. The trial court even instructed the jury
on the required ob servation period, g iving the jury the option of rejecting Officer
Teete rs’ testimo ny.
In light of all the evidence, we find that the trial court did not err by admitting
into eviden ce the Into ximeter 3 000 tes t results.
Accordingly, the judgment of the trial court is affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
DAVID H. WELLES , Judge
___________________________________
JERRY L. SMITH, Judge
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