Court of Criminal Appeals of Tennessee, Nashville
Session December 13, 2016
from the Criminal Court for Davidson County No. 2015-C-1962
Amanda J. McClendon, Judge No. M2016-01325-CCA-R9-CD
granted this interlocutory appeal to review the trial
court's order granting the Defendant's motion to
suppress the results of a breath alcohol test. Prior to
trial, the Defendant filed a motion to suppress the results
of the breath alcohol test based upon a violation of
State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). The
trial court granted the Defendant's motion to suppress,
and the State filed for an interlocutory appeal. After review
of the record and applicable authority, we hold that the
trial court erred in suppressing the results of the blood
alcohol test because the State attempted to properly admit
them through expert testimony in accordance with Tennessee
Rules of Evidence 702 and 703.
R. App. P. 9 Interlocutory Appeal; Judgments of the Criminal
Court Reversed; Case Remanded.
Herbert H. Slatery III, Attorney General and Reporter;
Matthew Todd Ridley, Assistant Attorney General; Glenn R.
Funk, District Attorney General; Samantha Dotson, Assistant
District Attorney General, for the appellant, State of
T. Vaughn, Nashville, Tennessee, for the Defendant, Kelly
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Camille R. McMullen and J. Ross Dyer, JJ., joined.
KELLY THOMAS, JR., JUDGE
August 21, 2015, the Davidson County grand jury indicted the
Defendant for DUI and DUI per se. The Defendant subsequently
filed a motion to suppress the results of the blood alcohol
test based upon a violation of requirements set out in
Sensing, and a suppression hearing followed.
hearing, the arresting officer, Chris Roark, testified that
he was employed with the Belle Meade Police Department. He
testified that, on September 14, 2014, he observed the
Defendant driving fifty-five miles per hour ("mph")
in a forty mph speed zone. He stopped the Defendant and
noticed that she exhibited signs of physical impairment.
Officer Roark asked the Defendant to exit her vehicle. After
she complied, he asked her to perform a series of field
sobriety tests: "the horizontal gaze nystagmus, the walk
and turn[, ] and the one-leg stand." After she performed
poorly on the field sobriety tests, Officer Roark concluded
that the Defendant "was definitely impaired. She showed
definite signs of impairment." Officer Roark asked the
Defendant if she had had anything to drink, and
"[i]nitially, she said no." He asked the Defendant
if she would take a breath test at the station, and after
"she was read the implied consent advisement[, ] . . .
she volunteered to take a breath test."
arrival at the station, Officer Roark took the Defendant
"into the breathalyzer room." While the Defendant
was seated in the room, Officer Roark testified that he
"explained[ed] the process" of the breath test and
instructed her on how to properly blow into the machine.
Prior to beginning the test, Officer Roark claimed that he
observed the Defendant for "a little bit longer than
twenty minutes" and that during the twenty-minute
observation period, he "maintained visual contact"
with the Defendant. After the observation period, the
Defendant took the test. Officer Roark identified a document
containing the test results indicating that the
Defendant's blood alcohol content was ".274[,
]" and it was entered into evidence.
cross-examination, Officer Roark admitted that it was
possible he left the breathalyzer room during the
twenty-minute observation period to "tell [his] sergeant
what was going on[.]" Officer Roark insisted that he
"never lost visual contact with [the Defendant." He
explained that he was likely talking to his sergeant "in
the hallway[.]" He averred, however, that he "had
one eye on [the Defendant] and one eye [on the hallway], and
[he] was watching both[.]" According to Officer Roark,
"[he was] talking to [his] sergeant, but [he] had [his]
eye on [the Defendant] as well." He confirmed that the
dimensions of the breathalyzer room were "approximately
ten [feet] by twelve [feet], " and he agreed that he was
"probably eleven or twelve feet away from [the
Defendant]" while he was "standing at the
Roark testified that he was trained and certified by the
Tennessee Bureau of Investigation (TBI) to use the breath
test machine at the station. He identified the TBI
certificate certifying him to use the "ECIR II"
intoximeter machine, and it was admitted into evidence.
Officer Roark also testified that this breath test machine
was certified by the TBI, and the TBI ran "monthly
checks on it." Additionally, the machine would do
"its own calibration." Officer Roark identified
"certificates of instrument accuracy" regarding the
breath test machine, and these documents were entered into
evidence. He also agreed that if he had been talking to his
sergeant, he would have had "divided attention."
Officer Roark explained that the purpose of the twenty-minute
observation period was to "make sure [the Defendant]
d[i]dn't burp or regurgitate" and acknowledged that
"if a person even . . . gently burped[, ]" that
would "violate the twenty-minute observation[.]" He
agreed that it was possible that "there was a period of
time that [he] may not have heard a burp when [he] was
talking [to his sergeant] at the ...