State v. Edison

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.

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