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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