IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
August 15, 1997
APRIL 1995 SESSION
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellee, ) No. 01C01-9501-CC-00001
)
) Coffee County
v. )
) Honorable Gerald L. Ewell, Sr., Judge
)
WILLARD C. COOK, SR., ) (Driving Under the Influence)
)
Appellant. )
SEPARATE CONCURRING & DISSENTING OPINION
In accordance with Court procedure, I originally was assigned this case.
Upon completion, my colleagues agreed that the appellant’s conviction should be
affirmed. However, they both disagree with me that a pretrial motion to suppress
the results of the intoximeter test was required. Judge Tipton has eloquently and
persuasively stated the majority’s position. I, however, remain unswayed in my
belief that a pretrial motion to suppress is the required course of action to suppress
evidence of intoximeter results. I will succinctly explain my rationale below.
At trial, the appellant challenged the admissibility of the test results under
State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). In Sensing, the Court addressed
the necessary foundation that the state must establish to admit breathalyzer test
results. Id. at 416. One of the requirements is that the testing officer must be able
to testify that the motorist was observed for the requisite twenty minutes prior to the
test; and that during this period, he did not have foreign matter in his mouth, did not
consume any alcoholic beverage, smoke, or regurgitate. Id. The appellant claims
that the trial court improperly admitted the test results into evidence because he had
foreign matter in his mouth prior to and when the test was administered. The
appellant asserts that his dentures are foreign matter. The trial court held that he
waived the issue of admissibility because he failed to file a pretrial motion to
suppress the evidence. The court did not abuse its discretion in not granting relief
of such waiver.
Judge Tipton’s majority opinion makes a distinction between an issue
relating to sufficient foundation and the typical suppression motion involving
evidence “illegally obtained.” I am not persuaded as to the distinction. I believe we
should deal in substance, not form. The purposes of Rules 12(b)(3) and 12(f) are to
avoid unnecessary trial interruption and, more importantly, to assure that the state
may appeal an adverse ruling without double jeopardy consequences. See State v.
Braden, 874 S.W.2d 624, 625 (Tenn. Crim. App. 1993); State v. Randolph, 692
S.W.2d 37, 40 (Tenn. Crim. App. 1985). Allowing a defendant to pursue a
suppression issue like this one at the midpoint of a trial would destroy the state’s
case by giving the prosecution no appellate avenue if the ruling is adverse.
I believe that the trial court properly denied the appellant’s challenge to the
admissibility of the test results. A motion to suppress evidence must be raised prior
to trial. Tenn. R. Crim. P. 12(b)(3). Failure to do so constitutes a waiver of the
objection. Tenn. R. Crim. P. 12(f). Appellant’s counsel could have made a motion
to suppress the test results based on the state’s inability to lay the proper foundation
prior to trial. Therefore, I concur in the results affirming the conviction but dissent on
the suppression-waiver issue.
_____________________________
PAUL G. SUMMERS, Judge
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