IN THE SUPREME COURT OF TENNESSEEFILED
AT KNOXVILLE
July 6, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE ) FOR PUBLICATION
)
Appellee ) FILED: JULY 6, 1999
)
v. ) JEFFERSON COUNTY
)
JERRY WAYNE EDISON ) HON. BEN W. HOOPER, II, JUDGE
)
Appellant ) NO. 03-S-01-9803-CC-00022
For Appellant: For Appellee:
LU ANN BALLEW JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
Dandridge, TN
MICHAEL E. MOORE
Solicitor General
MICHAEL J. FAHEY, II
Assistant Attorney General
Nashville, TN
AL C. SCHMUTZER, JR.
District Attorney General
JAMES L. GASS
Assistant District Attorney General
Sevierville, TN
OPINION
AFFIRMED BIRCH, J.
We granted this Tenn. R. App. P. 11 appeal to determine
the appropriate standard of review of a trial court’s decision to
admit a breath-alcohol test result under State v. Sensing, 843
S.W.2d 412 (Tenn. 1992). The Court of Criminal Appeals held that
the trial court had not abused its discretion in admitting the test
result of the defendant, Jerry Wayne Edison.1 We affirm the
judgment of the intermediate appellate court and conclude that a
trial court’s Sensing decision must be presumed correct on appeal
unless the preponderance of the evidence is to the contrary.
I
While on patrol during the early morning hours of
February 17, 1994, Officer Steve Manning of the Dandridge Police
Department observed a car stalled in the highway with an individual
attempting to push it out of the road. When Manning stopped to
offer assistance, he detected a strong odor of alcohol coming from
the defendant, who was in the driver’s seat of the car. Upon
questioning, the defendant admitted that he was returning home from
a country music bar in Knoxville when the alternator on his car
ceased to work. Manning then conducted three field sobriety tests;
the defendant failed each one. The defendant was arrested and
transported to the sheriff’s office.
1
The Court of Criminal Appeals explained that although some
court documents refer to the defendant as “Eidson,” its policy is
to list the defendant’s name as it appears on the indictment. In
this case, “Edison” is the name used in the indictment. Thus, to
reduce the probability of confusion, we will also refer to the
defendant as Jerry Wayne Edison.
2
At the sheriff’s office, the defendant was observed for
twenty minutes before undergoing breath-alcohol testing on an
Intoximeter 3000. Officer Merlin Foister, who was trained by the
Tennessee Bureau of Investigation, administered the test. The
defendant’s blood-alcohol content measured 0.12.2
II
In Sensing, this Court addressed the fundamental question
of the “foundation to be laid for the admission of evidentiary
breath tester results.” Sensing, 843 S.W.2d at 416. Prior to
Sensing, the certified operator of the test instrument was required
to know the scientific technology involved in the instrument’s
function. Id. But advances in scientific technology have now
facilitated the use of computerized instruments which are
thoroughly tested and monitored to ensure a greater degree of
accuracy.
2
“Blood alcohol concentration (BAC) is expressed in percent
weight by volume (%w/v) based upon grams of alcohol per 100 cubic
centimeters of blood or per 210 liters of breath. A BAC of 0.10%
w/v means 0.10 grams of alcohol per 100 cubic centimeters of blood
(0.01g/100cc) or 0.10 grams of alcohol per 210 liters of breath.
Alcohol concentrations in either breath or in air mixtures can also
be expressed in milligrams of alcohol per liter of air (mg/l); to
convert mg/l to units of percent weight by volume, multiply by
0.21. (Traffic Laws Anno., Sec. 11-002.1(a) (Supp. 1983)). The
conversion factor of 0.21 is a commonly used value recognized by
the Committee on Alcohol and Other Drugs of the National Safety
Council; that is 210 liters of deep lung air at 34/C contains
approximately the same quantity (mass) of ethanol [alcohol] as
100cc of pulmonary blood. See R.N. Harger, R.B. Forney and R.S.
Baker. ‘Estimates of the Level of Blood Alcohol from Analysis of
Breath.’ Quarterly Journal of Studies on Alcohol. 1-18 (1956).”
Sensing, 843 S.W.2d at 415 n.2.
3
In recognition of these scientific advances, this Court
determined that, in general, the average law enforcement officer
administering a breath-alcohol test need not possess the technical
background necessary to qualify as an expert. Id. Rather, we held
that the testing officer must be able simply to testify to the
following six prerequisites to admissibility:
(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.
Id.
Once the State has satisfied the six prerequisites, the
test result is admissible. Once admitted, a ratio of 0.10% or more
creates a rebuttable presumption of intoxication. Tenn. Code Ann.
§ 55-10-408(b) (1993)(currently codified at Tenn. Code Ann. § 55-
4
10-408(a) (1998));3 Sensing, 843 S.W.2d at 416. The defendant is
free “to challenge the accuracy of the particular machine, the
qualifications of the operator, and the degree to which established
testing procedures were followed.” Id. Such challenges, however,
go only to the weight of the evidence, as distinguished from its
admissibility.
Although Sensing prescribed the requisite criteria for
the admissibility of breath-alcohol test results, it did not
establish an appropriate standard of review to be applied to the
trial court’s decision on admissibility. Indeed, even during these
proceedings, the parties have argued for different standards of
review, including abuse of discretion, preponderance of the
evidence, and de novo. A majority of the Court of Criminal Appeals
determined that the abuse of discretion standard was the
appropriate standard to be applied.
The admissibility of evidence is generally within the
broad discretion of the trial court; absent an abuse of that
discretion, the trial court’s decision will not be reversed. State
v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). This standard has
been applied to decisions regarding the qualifications,
admissibility, relevancy, and competency of expert testimony.
State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993); see also State
v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994). To guide the trial
court’s discretion with respect to the admission of expert or
3
If the defendant has previously been convicted of driving
under the influence of an intoxicant, then a result of 0.08% or
more creates a rebuttable presumption of intoxication. Tenn. Code
Ann. § 55-10-408(b) (1998).
5
scientific testimony, we have recognized the following factors
which may be considered:
(1) whether scientific evidence has
been tested and the methodology
with which it has been tested;
(2) whether the evidence has been
subjected to peer review or
publication;
(3) whether a potential rate of
error is known;
(4) whether . . . the evidence is
generally accepted in the
scientific community; and
(5) whether the expert’s research
in the field has been conducted
independent of litigation.
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997).
With specific regard to breath-alcohol test results,
Sensing removed the discretion which would have ordinarily
accompanied the admission of scientific evidence. See State v.
Bobo, 909 S.W.2d 788, 790 (Tenn. 1995) (“Sensing established the
prerequisites for threshold admissibility of breath alcohol test
results.”). For example, as noted previously, the person
administering the test need not be an expert. He or she must
simply have been trained by the Tennessee Bureau of Investigation
in the administration of such tests and must demonstrate that the
test was performed according to that training.
Thus, instead of having to determine whether the
proffered test result “will substantially assist the trier of fact
to understand the evidence or to determine a fact in issue,”4 the
trial court must determine only whether the Sensing prerequisites
4
Tenn. R. Evid. 702.
6
have been met. In this sense, the prerequisites are essentially
preliminary facts underlying the admission of the test result.
Once they are proven by a preponderance of the evidence, see State
v. Stamper, 863 S.W.2d 404, 406 (Tenn. 1993), the trial court
should admit the result.
This leads us to agree with Judge Joseph M. Tipton’s
analysis in his concurring opinion in the Court of Criminal
Appeals:
[T]he matters of discretion relative
to expert witness testimony and
scientific test reliability for
breath test results from an
Intoximeter 3000 were essentially
resolved in Sensing for DUI trials.
. . . In this respect, the [abuse of
discretion standard] would have us
defer to a discretion that the trial
court does not possess.
Under the preponderance standard, the trial court remains
responsible for determining whether the Sensing prerequisites have
been proven. Therefore, the trial court’s finding in regard to the
Sensing prerequisites is the ultimate measure of test result
admissibility. We will presume that finding is correct, and we
will overturn it only if the evidence preponderates otherwise. See
State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996) (trial court’s
findings of fact on suppression issues are upheld unless the
evidence preponderates otherwise).
III
The defendant argues that the State failed to satisfy two
of the Sensing prerequisites and, thus, that the breath-alcohol
7
test result should not have been admitted. Specifically, the
defendant contends that the State failed to satisfy the third
prerequisite5 and the fifth prerequisite.6 For the reasons set
forth below, we cannot hold that the evidence preponderates against
the trial court’s findings.
Regarding the third prerequisite, Foister testified that
the Tennessee Bureau of Investigation calibrated the testing
instrument every three months and that a document evidencing the
instrument’s certification was posted at the jail. Although he
could not specify the exact date of the last maintenance check
performed, this lack of specificity does not detract from his
testimony. Accordingly, we cannot say that the evidence
preponderates against the trial court’s determination that this
prerequisite was satisfied.
The evidence, however, is not as clear with regard to the
fifth prerequisite. On direct examination, Foister responded in
the affirmative to several questions about following the proper
procedures in testing the defendant. Because these questions and
answers were of a general nature, the trial court made the
following observation:
[I]t may be that Item #5, that he
followed the prescribed operation
procedure, it’s kind of close. It
5
This prerequisite requires evidence “that the evidentiary
breath testing instrument used . . . was tested regularly for
accuracy and was working properly when the breath test was
performed.” Sensing, 843 S.W.2d at 416.
6
This prerequisite requires “evidence that [the testing
officer] followed the prescribed operational procedure.” Id.
8
may be that you could make that more
specific.
To address the trial court’s concern about specificity,
the State asked Foister the following question:
What did you do to get the machine
to operate properly? What steps did
you take with the defendant?
In response, Foister testified to the following procedures taken:
(1) observed the defendant for
twenty minutes;
(2) input the required information
into the machine;
(3) allowed the machine to purge
itself of dust or any other
substances;
(4) waited for the machine’s
direction to blow;
(5) had the defendant blow into the
machine; and
(6) obtained a printout of the
results.
The printout confirms that the required information was entered and
that Foister tested a blank against a standard and then a blank
against the defendant’s sample.
Defense counsel was permitted to cross-examine Foister
regarding satisfaction of the Sensing prerequisites. During this
examination, the following exchange took place:
Q: Can you recall or can you
remember whether you followed
those procedures that night
with Mr. Eidson?
A. Well, I’m sure I followed the
procedures, but I can’t
remember. It’s just certain
procedures you have to follow
to run the test.
9
Based on this statement, the defendant argues that the trial court
erred in admitting the test result.
Foister testified that he followed the proper procedures,
notwithstanding his failure to recall the specifics of the night in
question. Although he admitted during cross-examination that he
could not “remember” following the procedures, his testimony, as a
whole, supports the trial court’s determination that he had. Thus,
we cannot say that the evidence preponderates against the trial
court’s finding that the Sensing prerequisites were met.
IV
To summarize, we conclude that a trial court’s decision
to admit breath-alcohol test results under Sensing will not be
overturned unless the preponderance of the evidence is otherwise.
Applying this standard to the facts of this case, we cannot say
that the trial court erred in admitting the defendant’s breath-
alcohol test result. Accordingly, the judgment of the Court of
Criminal Appeals is affirmed. Costs shall be assessed against the
defendant.
______________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, C.J.
Drowota, Holder, Barker, JJ.
10