IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
June 29, 2010 Session
STATE OF TENNESSEE v. TERRY O’NEIL GREENE
Appeal from the Criminal Court for Hamblen County
No. 09CR151 John F. Dugger, Jr., Judge
No. E2009-02616-CCA-R3-CD - Filed October 15, 2010
The Defendant, Terry O’Neil Greene, was convicted by a jury of driving under the influence
of an intoxicant, second offense. In this appeal as of right, the Defendant contends that the
trial court erred in admitting the results of his breath-alcohol test. Following our review, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Criminal Court Affirmed.
D. K ELLY T HOMAS, J R. J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J. and N ORMA M CG EE O GLE, J., joined.
Jonathan M. Holcomb, Morristown, Tennessee, for the appellant, Terry O’Neil Greene.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Kimberly Morrison,
Assistant District Attorney General for the appellee, State of Tennessee.
OPINION
Hamblen County Sheriff’s Deputy Bobby Tharp testified that around 7:00 p.m. on
April 19, 2008, he was off-duty and about to leave his apartment complex when he saw the
Defendant’s pickup truck strike a parked car. The Defendant backed up and continued
driving to a dumpster located in the apartment complex. Deputy Tharp followed him and
observed the Defendant make a wide left turn followed by a wide right turn. The Defendant
nearly hit a fence which caused him to overcorrect and hit the curb. Deputy Tharp reported
the Defendant’s erratic driving to dispatch and followed the Defendant as he parked in
another section of the apartment complex. Deputy Tharp approached the Defendant’s truck
and asked him if everything was okay. Deputy Tharp noticed that the Defendant smelled like
alcohol and that he was very unsteady when he stepped out of the vehicle. Deputy Tharp
asked the Defendant to get back in his vehicle, and a few minutes later Officer Christopher
Bagby of the Morristown Police Department arrived on the scene. Deputy Tharp informed
Officer Bagby of his observations and then stepped away to allow Officer Bagby to conduct
his investigation.
Officer Bagby testified that when he arrived on the scene, the Defendant was sitting
in the driver’s seat of his vehicle and was slouching forward. Officer Bagby also noticed the
smell of alcohol and asked the Defendant if he had anything to drink. The Defendant
responded that he had, and Officer Bagby asked if he would agree to take some field sobriety
tests. The Defendant responded that he would not attempt the tests because he had consumed
ten beers. Officer Bagby then asked the Defendant if he would consent to a breath-alcohol
test, and the Defendant agreed. As the Defendant exited his vehicle, Officer Bagby noticed
that “he leaned up against the vehicle so as not to stand on his own.” Officer Bagby then
placed the Defendant in his patrol car and took him to the Morristown Police Department to
administer the breath-alcohol test.
After arriving at the Morristown Police Department, Officer Bagby took the
Defendant to the basement where the department’s Intoximeter II was located. Officer
Bagby testified that he had been trained on how to use the machine and that he was certified
to use it. Officer Bagby was familiar with the department’s intoximeter and had used it
before. Officer Bagby also testified that to his knowledge the intoximeter had been certified
by the Tennessee Bureau of Investigation and had been tested regularly for accuracy. Officer
Bagby testified that the intoximeter was in good working order that night and that there were
no error messages during the Defendant’s breath-alcohol test.
Officer Bagby reviewed the department’s Implied Consent Form with the Defendant
before the Defendant signed the form. Officer Bagby then entered the Defendant’s
information into the intoximeter, and the machine began a twenty minute countdown.
Officer Bagby testified that he observed the Defendant for twenty-one minutes while the
Defendant was sitting across from him and that the Defendant did not eat, drink, chew, or
smoke anything nor did he regurgitate or belch during that time. On cross-examination,
Officer Bagby testified that he did not look in the Defendant’s mouth to see if there was any
foreign matter but that based upon his speaking with the Defendant, he did not believe the
Defendant had anything in his mouth. Officer Bagby testified further that the intoximeter
would produce an error message if there was foreign matter in the Defendant’s mouth.
Officer Bagby also testified that while he observed the Defendant, he did not work on any
paperwork or take any notes and that he watched the Defendant for the full twenty-one
minutes. After the twenty-one minutes expired, Officer Bagby had the Defendant take the
breath-alcohol test. The intoximeter produced a printout showing the Defendant had a blood
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alcohol level of .27.
After the State had put on its proof, defense counsel objected to the admission of the
breath-alcohol test results. Defense counsel argued that because Officer Bagby did not look
into the Defendant’s mouth and relied on the intoximeter to insure there was no foreign
matter in the Defendant’s mouth, the test results were inadmissible. The State responded that
the officer was only required to observe the Defendant and that Officer Bagby did not have
to look into the Defendant’s mouth to ensure there was no foreign matter. The trial court
overruled the Defendant’s objection because Officer Bagby testified that he observed the
Defendant for twenty-one minutes and did not believe there was anything in the Defendant’s
mouth.
After the trial court overruled the Defendant’s objection, the Defendant testified that
he and his manager had an argument that morning at work. The Defendant returned home
around noon and spent the afternoon drinking beer, having about ten beers between noon and
seven. Defendant testified that he was taking his garbage to the dumpster when Deputy
Tharp saw him driving through the parking lot. The Defendant testified that he was not
intoxicated, that he did not strike a parked car, and that he was not driving erratically.
Instead, the Defendant testified that he had a long truck that had trouble navigating the
narrow roads in the apartment complex. The Defendant also testified that before Officer
Bagby arrived, he got a piece of chewing gum from his truck and that no one ever asked him
about the gum or asked him to spit the gum out. The Defendant testified that he was still
chewing the gum when Officer Bagby administered the breathalyzer test.
ANALYSIS
The Defendant contends that the trial court erred in admitting the breath-alcohol test
results because the State failed to satisfy the requirements of State v. Sensing, 843 S.W.2d
412 (Tenn. 1992) when Officer Bagby did not visually inspect the Defendant’s mouth or
specifically ask him if he had anything in his mouth before administering the breath-alcohol
test. Specifically, the Defendant alleges that the State failed to establish the fourth
requirement of Sensing, which requires the officer to observe the defendant for twenty
minutes prior to the test and ensure that “during this period, he did not have foreign matter
in his mouth, did not consume any alcoholic beverage, smoke, or regurgitate.” Id. at 416.
The State responds that Sensing does not require the administering officer to visually inspect
a suspect’s mouth and that the record does not contain any proof that the Defendant had
foreign matter in his mouth at the time the breath test was administered.
In Sensing, our supreme court established six elements that the State must prove
before the results of a breath-alcohol test may be admitted:
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(1) 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 [the officer] 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 [the officer] followed the prescribed operational procedures, [and] (6) [the
officer must] identify the printout record offered in evidence as the result of
the test given to the person tested.
843 S.W.2d at 415. The State must establish compliance with these elements by a mere
preponderance of the evidence. State v. Arnold, 80 S.W.3d 27, 29 (Tenn. Crim. App. 2002).
This court will “presume that the trial court’s Sensing decision is correct unless the
preponderance of the evidence is to the contrary.” Id.
The purpose of the fourth Sensing 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, 101 (Tenn. 1999). This requirement has two
distinct elements: first the State “must demonstrate that the Defendant was observed for
twenty minutes” and 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.” Arnold, 80 S.W.3d at 29 (quoting State v. John H. Hackney, No 01C01-9704-CC-
00152, 1998 WL 85287, at *2 (Tenn. Crim. App. Feb. 20, 1998), perm. app. denied (Tenn.
Nov. 9, 1998)). If the State presents “credible proof establish[ing] 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, 57-58
(Tenn. 1997).
As this court has stated previously, “Sensing does not require 100 percent certainty[;]”
however, “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.” State v. Brad Stephen Luckett, No. M2000-00528-CCA-R3-CD, 2001 WL
227353, at *4 (Tenn. Crim. App. March 8, 2001). For example, our supreme court has held
that the fact that a defendant was wearing dentures at the time of his breath-alcohol test did
not preclude the admission of the test results. Cook, 9 S.W.3d at 101. The court found that
where the defendant was observed for the requisite period of time and nothing unusual was
detected, the defendant was asked if he had any foreign matter in his mouth and replied that
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he did not, and the intoximeter would have shut down had it detected the presence of mouth
alcohol, the evidence did not “preponderate against the trial court’s decision to admit the
results of the breath-alcohol test . . . .” Id. Similarly, this court has held that the State
satisfied the fourth Sensing requirement even though the officer did not ask the defendant
if he had any foreign matter in his mouth prior to administering the test and did not confirm
there was no foreign matter by visually inspecting the defendant’s mouth. Luckett, 2001 WL
227353 at *1-2, 4. This court upheld the admission of the breath-alcohol test results because
the administering officer did not observe anything unusual during the twenty minute
observation period and because the officer did not notice anything during his conversation
with the defendant that would have caused him to believe the defendant had any foreign
matter in his mouth. Id. at *2, 4.
Officer Bagby testified that he observed the Defendant for twenty-one minutes
without interruption and that the Defendant did not eat, drink, chew, or smoke anything nor
did the Defendant regurgitate or belch during that time. Contrary to the Defendant’s
assertion that he was chewing gum, Officer Bagby testified that the Defendant did not chew
anything during the twenty-one minutes Officer Bagby observed the Defendant. Officer
Bagby also testified that he did not believe the Defendant had anything in his mouth based
on his conversations with the Defendant before he entered the Defendant’s information into
the intoximeter. Furthermore, Officer Bagby testified that the intoximeter used, like the
machine used in Cook, would produce an error message if it detected foreign matter in the
Defendant’s mouth. As this court has stated previously, Sensing does not require the State
to prove the absence of foreign matter in the Defendant’s mouth with 100 percent certainty.
Accordingly, we conclude that the trial court did not err in admitting the results of the
Defendant’s breath-alcohol test.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.
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D. KELLY THOMAS, JR., JUDGE
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