State vs/ John Farris Hunter, III , 1997 Tenn. LEXIS 139 ( 1997 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE ) FOR PUBLICATION
)
) FILED: MARCH 24, 1997
Appellee )
) MARSHALL COUNTY
V. )
) HON. WILLIAM CHARLES LEE,
JOHN FARRIS HUNTER, III ) JUDGE
)
Appellant ) NO. 01-S-01-9605-CC-00083
For Appellant: For Appellee:
WILLIAM C. BARNES, JR. JOHN KNOX WALKUP
Columbia, TN Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
FILED WILLIAM DAVID BRIDGERS
Assistant Attorney General
March 24, 1997 Nashville, TN
Cecil W. Crowson WILLIAM MICHAEL MCCOWN
Appellate Court Clerk District Attorney General
WEAKLEY E. BARNARD
Assistant District Attorney
Lewisburg, TN
OPINION
AFFIRMED BIRCH, C.J.
The Circuit Court of Marshall County entered judgment
upon a jury verdict convicting John Farris Hunter, III,1 the
defendant, of driving while under the influence of an intoxicant
(fourth offense).2 The trial court sentenced him to a nine-month
workhouse term and ordered the conditional forfeiture of his
automobile. Additionally, the trial court pronounced judgment on
a jury-assessed fine of $5,000. The Court of Criminal Appeals
affirmed.
We granted Hunter’s application for review in order to
clarify whether State v. McCaslin, 894 S.W.2d 310 (Tenn. Crim. App.
1994), modified the Sensing3 rule, which requires a twenty-minute
period of observation prior to the administration of a breath-
alcohol test. After careful consideration, we conclude that
McCaslin did not modify Sensing and that the requirements of
Sensing were met in this case. Therefore, the judgment of the
Court of Criminal Appeals is affirmed.
In State v. Sensing, 843 S.W.2d 412, 416 (Tenn. 1992),
we established the prerequisites that must be met before the
results of a breath-alcohol test may be admitted. Under Sensing,
the State must establish that the subject was observed for twenty
minutes prior to the test and that during this period the subject
1
The appellant is referenced in the record as both
“John F. Hunter” and “Farris John Hunter.” We will refer to him as
he is described in the indictment: John Farris Hunter, III.
2
Tenn. Code Ann. § 55-10-401, -403.
3
S t a t e v . S e n s i n g , 8 4 3 S . W . 2 d 4 1 2 ( T e n n . 1 9 9 2 ) .
2
did not have foreign matter in his or her mouth, did not consume
any alcoholic beverage, smoke, or regurgitate. Id.
In McCaslin, the intermediate court applied the “twenty-
minute observation” rule and concluded that the requirement had not
been met. McCaslin, 894 S.W.2d at 311-312. The State argued that
the observation by the transporting officer in the patrol car
should be considered in addition to the station-house observation.
If allowed, the time would have exceeded the twenty-minute
requirement. In McCaslin, however, the transporting officer could
not testify with certainty regarding the defendant’s conduct while
in the patrol car. Id. Thus, the Court of Criminal Appeals
appropriately held that the State had not sufficiently established
the basis for the admission of the evidence under Sensing.
In the absence of a verbatim transcript, the case before
us has been submitted on a statement of evidence. That statement
indicates, in pertinent part, that the arresting officer observed
the defendant “for thirty minutes (30) prior to the administering
to [sic, of] the breath test to insure that the Defendant had not
regurgitated, belched, etc.” A different officer administered the
test.
Obviously, the rationale of the observation rule is to
ensure an accurate test result. If credible proof establishes that
the subject did not have foreign matter in the mouth, did not
consume any alcoholic beverage, and did not smoke or regurgitate,
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then the rule is satisfied regardless of whether the observer also
administers the test.
We find this rule was satisfied in this case.
Accordingly, the judgment of the Court of Criminal Appeals is
affirmed.
________________________________________
ADOLPHO A. BIRCH, JR., Chief Justice
CONCUR:
Drowota, Anderson, Reid, JJ.
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