State v. Cook

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE
FILED
December 20, 1999

Cecil Crowson, Jr.
FOR PUBLICATIONAppellate Court Clerk

Filed: December 20, 1999

STATE OF TENNESSEE, )
)
Appellee, )
) Coffee County
Vs. )
) Hon. Gerald L. Ewell, Sr., Judge
WILLARD C. COOK, SR., )
) No. M1995-00011-SC-R11-CD
Appellant. )

For the Appellant: For the Appellee:

Robert S. Peters John Knox Walkup
SWAFFORD, PETERS & PRIEST Attorney General and Reporter
Winchester, Tennessee
Michael E. Moore
Solicitor General

Peter M. Coughlan
Assistant Attorney General
Nashville, Tennessee

OPINION

AFFIRMED Anderson, C.J.
 We granted this appeal to determine whether dentures constitute “foreign matter”

requiring invalidation of a breath-alcohol test result and to consider whether the

admission of a breath-alcohol test result must be challenged by a pretrial motion under

Tenn. R. Crim. P. 12(b)(3) or whether an objection may be made at trial.

After a jury-out hearing, the trial court concluded that the presence of dentures

did not preclude admission of the breath-alcohol test result. The defendant was

thereafter convicted of driving under the influence of an intoxicant.

The Court of Criminal Appeals affirmed the conviction, holding that the record

was insufficient to explain what effect, if any, the presence of dentures had on the test

results and that the officer administering the test in this case was justified in relying on

the defendant’s response that he had no foreign matter in his mouth. A majority of the

court further stated that a defendant is not required to challenge the admissibility of

breath-alcohol test results prior to trial.

After reviewing the record and applicable authority, we agree with the lower courts

that the defendant’s dentures were not shown to have affected the breath-alcohol test

result in this case. We also hold that because the burden of establishing a foundation

for the admissibility of a breath-alcohol test lies with the prosecution, a defendant may

challenge its admissibility either before or during the trial.

BACKGROUND

The defendant, Willard C. Cook, Sr., was stopped in the early morning hours of

July 11, 1993, by a Tennessee Highway Patrolman. Cook’s car had been drifting from

lane to lane and was about to make an improper turn onto a one-way street. Cook had

an odor of alcohol on his breath and bloodshot eyes. Cook told the officer he had been

drinking, and he failed two field sobriety tests.

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 Cook was arrested for driving under the influence of an intoxicant and taken to

the Coffee County Jail. He agreed to take a breathalyzer test and signed the consent

form. Coffee County Jailer Charles Jones administered the test, which determined that

Cook’s blood alcohol content was .13%.

Prior to Jones’ testimony at trial, defense counsel objected to the admission of the

results of the breath-alcohol test. The trial court said that the objection should have

been made prior to trial pursuant to Tenn. R. Crim. P. 12(b)(3), but nonetheless held a

jury-out hearing. Jones testified in the hearing that he had asked whether Cook had any

foreign matter in his mouth prior to administering the test, and Cook replied that he “had

nothing.” Jones admitted that he was unaware that Cook was wearing dentures with a

cotton pad and that had he known, he would have had Cook remove them before taking

the test. Jones testified, however, that he had never been instructed that dentures affect

a test.

The trial judge ruled that the presence of dentures went to the weight of the test

results and not to their admissibility. After the trial resumed and in the jury’s presence,

Jones reiterated that he did not know that Cook had been wearing dentures. Had he

known, Jones would have asked Cook to remove the dentures because foreign matter

can affect a test result. Jones also testified, however, that the breathalyzer used, the

Intoximeter 3000, will abort a test if it reads alcohol from a mouth instead of from the

deep lung area, and will dispense a print-out stating “mouth alcohol.” Jones testified that

the machine did not do so in this case. The jury convicted Cook of driving under the

influence.

The Court of Criminal Appeals affirmed the conviction. The court determined that

there was no evidence in the record showing that the presence of dentures affected the

test results in this case. Although the court observed that other jurisdictions do not

consider dentures to be foreign matter that would bar admission of test results, it did not

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decide the issue. Finally, a majority of the court ruled that a defendant is not required to

file a pretrial motion to challenge the admissibility of breath alcohol test results.

We granted review to address these issues.

ANALYSIS

We begin our analysis by reviewing the prerequisites that must be established as

a foundation for the admission of breath-alcohol test results. First, the testing operator

must testify that the test used followed Tennessee Bureau of Investigation standards.

Second, the operator must be certified in accordance with those standards. Third, the

machine must be certified, tested regularly for accuracy, and working properly. Fourth,

the motorist must be personally observed for the requisite twenty minutes before taking

the test, during which time the defendant did not have foreign matter in his mouth,

consume alcohol, smoke, or regurgitate. Fifth, the operator must follow the instrument’s

prescribed operational procedure. Lastly, the operator must identify the test results

offered in evidence. State v. Sensing, 843 S.W.2d 412, 416 (Tenn. 1992).

The fourth Sensing requirement--that the prosecution establish that a defendant’s

mouth was free from foreign matter for twenty minutes prior to the administration of the

breath-alcohol test--ensures that no foreign matter is present in the defendant’s mouth

that could retain alcohol and potentially influence the results of the test. Id.; see also

People v. Witt, 630 N.E.2d 156, 158 (Ill. App. Ct. 1994) (stating that important

considerations are whether the defendant had any food or drink, smoked a cigarette, or

put anything in his mouth that would have tainted the results); Farr v. Director of

Revenue, 914 S.W.2d 38, 40 (Mo. Ct. App. 1996) (recognizing “oral intake” could taint

the result or prevent the operation of a breath-alcohol test). We did not in Sensing

attempt to delineate all possible items that may constitute foreign matter.

We therefore agree with the Court of Criminal Appeals that we need not

determine whether dentures, as a matter of law, constitute foreign matter that affect a

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breath-alcohol test and render the result inadmissible. The evidence in the record

establishes that Cook was observed for the requisite period of time in accordance with

Sensing, and nothing unusual was detected. Cook was asked if he had any foreign

matter and replied that he did not. Cook did not state or indicate that he was wearing

dentures. Although the administering officer testified he would have had Cook remove

the dentures, the officer could not opine as to the effect of the dentures, if any, on the

results of the test. The officer further testified, however, that the intoximeter used to

conduct the test would have shut down had it detected the presence of mouth alcohol

and would also have issued a print-out stating “mouth alcohol.” It did neither when it

was administered to Cook. Accordingly, we hold that the evidence does not

preponderate against the trial court’s decision to admit the results of the breath-alcohol

test in this case.

Pretrial Motion

We now turn to the issue of whether a defendant must challenge the admissibility

of breath-alcohol test results prior to trial. In general, a “motion to suppress evidence”

must be filed prior to trial. Tenn. R. Crim. P. 12(b)(3). The purpose of the rule

is not only to avoid the unnecessary interruption and inefficiency in
conducting jury trials caused by needlessly removing the jury from the
courtroom for protracted suppression hearings, but also to ensure the right
of the state to an appeal of an adverse ruling by the trial judge without
placing the defendant twice in jeopardy.

State v. Randolph, 692 S.W.2d 37, 40 (Tenn. Crim. App. 1985).

Neither the terms of Rule 12(b)(3) nor Tennessee case law specifies what

evidence must be challenged by means of a pretrial “motion to suppress.” However, the

comments to Rule 12(b)(3) state that the rule conforms to its federal counterpart. There

is a distinction between filing a “motion to suppress evidence” prior to trial on the basis

that evidence was obtained illegally, and objecting during trial where the prosecution has

failed to establish a sufficient foundation for the admission of evidence. The decision in

United States v. Barletta, 644 F.2d 50 (1st Cir. 1981) construes the federal counterpart

to Tennessee’s rule. The court explains:

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 At least as used in 12(b), “suppress” has a rather definite and limited
meaning, as explained by the Advisory Committee notes accompanying
the Rule. Motions to suppress are described as “objections to evidence on
the ground that it was illegally obtained”, including “evidence obtained as a
result of an illegal search” and “other forms of illegality such as the use of
unconstitutional means to obtain a confession.” Put generally, then,
suppression motions concern the “application of the exclusionary rule of
evidence’, or matters of “‘police conduct not immediately relevant to the
question of guilt’‘ . . . .

Id. at 54 (citations omitted); see also United States v. Gomez-Benabe, 985 F.2d 607 (1st

Cir. 1993) (motion to suppress must be made prior to trial; other motions to exclude

evidence may be made during the trial).

We also think that requiring a pretrial motion is inconsistent with established

Tennessee case law. In Sensing we said that the prosecution must meet six

requirements to establish a foundation for the admissibility of breath test results: first,

the testing operator must testify that the test used followed Tennessee Bureau of

Investigation standards; second, the operator must be certified in accordance with those

standards; third, the machine must be certified, tested regularly for accuracy, and

working properly; fourth, the motorist must be personally observed for the requisite

minutes before taking the test; fifth, the operator must follow the instrument’s prescribed

operational procedure; and sixth, the operator must identify the test results offered in

evidence. Id. at 416. The prosecution’s inability to meet one of these requirements

means it has failed to establish a foundation for the admission of the breath test results.

It does not mean that the evidence was illegally obtained by the State. Moreover,

nowhere in Sensing did we state that a defendant must challenge these requirements

prior to trial under Rule 12(b)(3). Indeed, the defendant in Sensing preserved the issue

by objecting at trial.

The State’s arguments for requiring a pretrial motion in all cases are

unconvincing. First, a pretrial hearing is not required simply because it may reduce

disruption or delay of the trial. Although pretrial procedures certainly have that

advantage, the rules of evidence provide for other means by which to conduct a hearing

“out of the hearing of the jury.” Tenn. R. Evid. 104(c). In fact, trial courts have great

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discretion in implementing a procedure by which to rule on evidentiary matters outside

the jury’s hearing. E.g., Neil P. Cohen et al., Tennessee Law of Evidence, § 104.3, at

27-28 (3d ed. 1995). The trial court did so in the present case.

Second, the prosecution must establish the Sensing requirements regardless of

whether the issue is raised prior to trial or whether an objection is made at trial. Cohen

et al., § 401.24, at 131 (“Compliance with State v. Sensing is a ‘condition precedent’ to

the admissibility of the breath test.”) (footnotes omitted). Accordingly, the State’s

comment that the defense counsel may engage in “sandbagging” by intentionally opting

not to raise the matter prior to trial is dubious. Moreover, this Court should not require

the defense to file a pretrial motion simply to advise the prosecution that it may have a

defect in its proof or some problem in establishing the appropriate evidentiary

foundation. The responsibility for establishing the Sensing requirements rests only with

the prosecution, not the defense.

Finally, the State’s concern for its right to appeal an adverse ruling is misplaced

for two reasons. First, as we observed in Sensing:

[I]t is a rare case in which the only evidence introduced to establish that a
suspected offender is under the influence is either a breath or a blood test.
In most cases there is the testimony of the arresting officer and others at
the scene concerning the arrestee’s driving pattern and their observations
of the individual, including his speech, breath and eyes. Often a field
sobriety test has been administered. Scientific tests are corroborative
evidence and may serve to exonerate as well as to convict an accused in a
close case.

Id. at 416-17 (emphasis in original). Second, the argument for preserving a possible

appeal by the State would arguably apply to any evidentiary ruling made by the trial

court that is adverse to the prosecution. If the position is carried to its logical conclusion,

then a defendant would be required to seek pretrial suppression of each component of

the prosecution’s evidence--photographs, documents, physical evidence, proposed

expert testimony--to avoid the penalty of waiver and to preserve a possible appeal by the

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State in the event the evidence is excluded.1 We have never given such a broad

construction to Rule 12(b)(3).

CONCLUSION

We conclude that the dentures worn by Cook were not shown to have affected

the result of the breath-alcohol test and that the evidence therefore does not

preponderate against the trial court’s ruling. We further hold that a defendant is not

required to challenge a breath-alcohol test by filing a pretrial motion pursuant to Tenn. R.

Crim. P. 12(b)(3), but rather, may make a timely objection at trial if the prosecution has

failed to establish the Sensing requirements. Accordingly, the judgment of the Court of

Criminal Appeals is affirmed. Costs are assessed against the appellant, Willard C.

Cook, Sr.

_______________________________
Riley Anderson, Chief Justice

Concur:

Drowota, Birch, and Holder, JJ.

Barker, J., Not Participating

1
For example, the State’s position could be interpreted as requiring a defendant to file a pretrial
motion to suppress fingerprint evidence, ballistics evidence, and other matters, even though the burden of
establish ing the fou ndation, re levance , qualifications , and othe r requirem ents for a dmis sibility rests with
the prosecution. Moreover, where the prosecution has failed to establish a foundation for the admission of
evidenc e, an obje ction at trial has traditionally been deem ed suff icient to pres erve the is sue.

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