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State v. Henderson

Court of Criminal Appeals of Tennessee, Nashville

March 3, 2017

STATE OF TENNESSEE
v.
KELLY NICOLE HENDERSON

          Session December 13, 2016

         Appeal from the Criminal Court for Davidson County No. 2015-C-1962 Amanda J. McClendon, Judge No. M2016-01325-CCA-R9-CD

         We 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.

         Tenn. 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 Tennessee.

          Robert T. Vaughn, Nashville, Tennessee, for the Defendant, Kelly Nicole Henderson.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Camille R. McMullen and J. Ross Dyer, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         On 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.

         At the 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."

         Upon 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.

         On 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 door."

         Officer 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 ...


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