State v. Mark Scisney

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH SESSION , 1997 October 16, 1997

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9605-CC-00209 ) Appellee, ) COFFEE COUNTY ) ) V. ) HON . GER ALD L. E WEL L, SR., ) JUDGE MARK T. SCISNEY ) ) (DUI WHILE DRIVING Appe llant. ) COMMERCIAL VEHICLE)

FOR THE APPELLANT: FOR THE APPELLEE:

ROBERT S. PETERS JOHN KNOX WALKUP Swafford, Peters & Priest Attorney General & Reporter 100 Firs t Avenu e, S.W . Win cheste r, TN 37 398 DEB ORAH A. TULL IS Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

C. MICHAEL LAYNE District Attorney General

STEP HEN E . WEITZ MAN Assistant District Attorney General 307 South Woodland P.O. Box 147 Manchester, TN 37355

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION

A Coffee County jury found Defendant guilty of driving under the influen ce wh ile ope rating a com merc ial mo tor veh icle in violation of Tennessee Code Annotated section 55-50-408. He appeals as of right pursuant to Rule 3, Tennessee Rules of Appellate Procedure. In a two (2) prong attack upon the sufficiency of the evidence, Defendant argues that the S tate failed to prove that his blood alcohol concentration was .04 or more, and also argues that the evidence was in sufficie nt as th e State prove d his “alcohol by weight” rather than his blood alcohol concentration as required by the statute. The judgment of the trial court is affirmed.

When an accused challenges the sufficiency of the convicting evidence, the standard is w hether, after reviewing the evidence in the light most favora ble to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reason able do ubt. Jack son v. V irginia, 443 U.S. 307, 31 9 (1979). Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, not this c ourt. State v. Pappas, 754 S.W .2d 620 , 623 (T enn. C rim. App .), perm. to appeal denied, id. (Tenn. 1987). Nor may this court re weigh o r reevalua te the evide nce. State v. Cabbage, 571 S.W .2d 832 , 835 (T enn. 19 78).

-2-

A jury verdict approved by the trial judg e acc redits th e State ’s witnesses and res olves all co nflicts in favor o f the State. State v. Grace, 493 S.W.2d 474, 47 6 (Ten n. 1973 ). On ap peal, the S tate is entitled to the strongest legitimate view of the evidence and all infere nces the refrom. Cabbage, 571 S.W.2d at 835 . Beca use a verdict o f guilt removes the presumption of innocence and replaces it with a pres umptio n of guilt, the accu sed h as the burde n in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493 S.W.2d at 476.

At approximately 1:00 a.m. on October 14, 1994, Defendant was operating an “18-wheeler” truck when he drove through the weigh station on the westbound side o f Intersta te 24 in Coffe e Cou nty. Tim Garner, an officer with the Tennessee Public Service Commission at the time, wa s on du ty and de cided to check Defendant for his driver’s license, log book, and medical certificate. According to Officer Garner, such random checks were a part of his duties and respo nsibilities. Defendant was given a signal to drive his truck around to the back of the checking area. After opening the door to Defendant’s vehicle, Garner imm ediate ly smelled the odo r of an intoxic ating bev erage. Garner requested his partner, Officer Slatton, to come and confirm the odor, and then to administer an alcohol breath test to Defendant using the Intoximeter 3000 machine located at the weigh station complex. Garner could not administer the test because he was not certified to do so, but Officer Slatton was properly certified to operate the Intoxime ter 3000 .

-3-

The record reflects that the Intoximeter 3000 test was properly administered pursua nt to the requ iremen ts of State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). The test result re gistered b y the ma chine w as .04. The only other proof of consum ption of alcohol by D efendant wa s the odor o f an intoxicant smelled by the o fficers a nd the Defe ndan t’s statement at the scene that he had consu med a couple o f “tall beers” in G eorgia “b efore he left.”

At trial, the State produced the testimony of William Heaney, Jr., and Officers Garner and Slatton. Defendant did not testify and o ffered no proof. Mr. Heaney was the supervisor of the breath alcohol program for the State of Tennessee through his employment in the Forensic Services Division of the Tennessee Bureau of Investigation. As part of his employment duties, Heaney was required to regularly check and monitor the accuracy of Intoximeter 3000 machines throughout the state which are monitored by the T.B.I., including the machine used to te st the De fendan t on the nig ht of his arre st. Accord ing to Heane y, each Intoxime ter 3000 m achine has a deviation rate of plus or minus .005 or plus or minus five (5%) percent, whichever is greater. In addition, Heaney noted that the m achine is program ed to automatically round downwa rd to the nea rest hundredth after it has interpreted the test. For instance, if the machine interprets a blood concentration by weig ht of .04 9999 , it would print out a result of .04.

Heaney testified that the particular machine which was used to test Defendant was checked on July 21, 1994 and again on October 25, 1994. The accuracy of the machine is tested by taking known standards and “blowing” them

-4-into the mach ine using “a simulator of known alcohol concentration.” During the July 21, 1994 test, a known sample of .025 was used and the machine was reading high and gave a result of .0253. On the same date, the machine was also read ing low wh en a kn own sa mple o f .100 gav e a resu lt of .0976.

During the October 25, 1994 test, the 0.025 standard was run through the machine and it gave th e resu lt of 0.0262. W hen the .100 standard was submitted to the machine on October 25, 1994, it gave a result of .0985. Therefore during the two re gular monitorings of the machine, before and after Defe ndan t’s arrest, the machine was reading both high and low, but within the accep table tolera nce of plu s or min us .005 .

From the proof in this record, we discern that a .04 reading on the Intoximeter 3000 c an resu lt from actual blood alcohol concentrations ranging from .035 to .054. We arrive at this co nclusion from the following a nalysis of th e evidence. If the machine is reading “high” .005, a .035 actual blood alcohol concentration would be interpreted and reported as a .04 by the Intoximeter 3000. If the mac hine we re readin g “low” .00 5, an actual blood alcohol concentration by weight of .054 would be interpreted by the machine as .049 and reported as a .04 after automatically rounding downward to the nearest hundredth. It is not clear at all in the record why the machine gives a result in the ten-thousandths when being monitored, but only in the hundredths when being used to test p erson s susp ected of bein g und er the in fluenc e of alc ohol.

-5-

Based on the record, it appears that, when carried to the thousandths, a .04 printout could be the result of twenty (20) different blood alcoho l concen trations. Five (5) of those (.035 - .03 59) wou ld be belo w .04.

Defendant alleges that based upon th e proof in th is record, th e State failed to prove beyond a reasonable doubt that he was guilty of the crime charged since there is a distin ct ma them atical possibility that his blood alcohol concentration was less tha n .04. T he issu e pres ented by De fenda nt is appa rently one of first impre ssion in T ennes see. Neithe r the S tate no r the D efend ant in this appeal have cited or relied upon any cases from other jurisdictions which address this precise issue.

Howeve r, we have been able to find cases from other jurisdictions which have dealt with the issue. Some of these cases have taken the position urged by Defendant. In State v. Boehmer, 1 Haw. App. 44, 613 P.2d 916 (1 980), two (2) separate cases were consolidated for appeal. In each case, the Defendant was arrested for driving under the influence and given a breathalyzer test. Defend ant Boe hmer’s test show ed .11 w eight of alcoh ol and Defendant Gog o’s test result w as .10 w eight of alcoh ol in the blood. In both cases, the undisputed proof w as tha t the pa rticular b reatha lyzer m achin e had a margin of error of 0.01 65. Th e statu te involv ed wa s not a “per se ” statute as fou nd in Tennessee Code Annotated section 55-50-408, bu t rather pro vided tha t if a defendant had .10 or m ore by weight o f alcohol in his or her blood, it created a presumption that the defendant was unde r the influence of intoxicating liquor. The Hawaii Co urt of Appeals recognized that it was apparent the trial judge relied

-6-upon the breathalyzer test as creating a presum ption of ea ch defe ndant’s s tate of intoxication. The court reversed and remanded both cases and spe cifically held:

The failure of the prosecution to establish beyond a re ason able doubt that the actual weight of alcohol in defe ndan t’s blood was at least .10% requ ired the trial judge to ignore the statutory presumption in its determination.

Boehmer, 613 P.2d at 918.

In State v. Bjornsen, 201 Ne b. 709, 271 N.W.2d 839 (1978), the defendant appealed from his conviction of operating a motor vehicle while having .10 percent alcoh ol by we ight in th is blood. The Nebraska Supreme Court noted that there wa s no evide nce of the defend ant’s intoxica tion to sustain a conviction other than the res ults of the blood test. The arresting officer observed that the defendant had an odor of alcohol on his breath and that there was a partially filled wine bottle found at the scen e. The re sults of the defendant’s blood test was .10 percent of alco hol by weig ht. Th e expe rt who te stified a t trial state d that th is result was accurate “within five thousandths [.005] of a percent.” The Supreme Court of Nebraska reversed the conviction and dismissed the case. In doing so, the court held:

W hile the Legislature has the acknowledged right to prescribe acce ptable methods of testing for alcohol content in body fluids and perhaps even the right to prescribe that su ch evid ence is adm issible in a court of law, it is a judicial dete rmina tion as to whe ther this evidence is sufficie nt to su stain a convic tion, if the evid ence is believed. The Legislature has selected a particular percent of alcohol to be a criminal offense if present in a person operating a

-7-

motor vehicle. It is not unreaso nable to re quire tha t the test, designed to show that percent, do so outside of any error or tolerance inherent in the testing process.

Bjornsen, 271 N.W.2d at 710-11.

In Hayne s v. State, D epartment o f Public S afety, 865 P.2d 753 (Alaska 1993), the Appellant Haynes’ driver’s license was revoked under Alaska law because follo wing his arrest for driving while intoxicated, the result of an Intoximeter 3000 test sho wed a read ing of .106 gram s of alcohol per 2 10 liters of breath. Alaska statutes permitted revocation of a driver’s license upon a chemical test producing a result of .10 or more. In that case, the testimony at trial was that the Intoximeter 3000 had a recognized margin of error of .01 grams per 210 liters of breath. The Alas ka Suprem e Court revers ed the revoca tion of Mr. Haynes’ driver’s license. That court held that based upon the Alaska Constitution, it was a violation of due process to re voke a perso n’s drive r’s license when the inherent margin of error of the testing device was no t applied in favor of the person subject to license re vocation . Haynes, 865 P.2d at 756.

Other jurisdictions have held that a similar margin of error does not require a conviction to be reversed based upon insufficienc y of eviden ce. In State v. Lentini, 240 N.J.Su per. 330, 573 A.2d 464 (1990), the Superior Court of New Jersey, Appellate Division, addressed the issue wherein the defendant was given two (2) breatha lyzer tests, w here bo th readin gs were exactly .10. In New Jersey at the time , the defen dant wa s convicte d unde r a statute w hich m ade it a criminal offense to operate “a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant’s blood . . . .” Both the

-8-defen dant’s expert witness and the trooper who arrested the defendant testified that the breathalyze r had an acc uracy of plus or m inus 0.01% . The court noted that the reading of 0.1 0 reflected a bloo d alcohol con centration anyw here between .09 and .11 percent. The New Jersey Court stated that the precise issue was whether the .10 reading from the properly operated and functioning machine was sufficient to support a conviction under the ap plicab le statute in light of the 0.01% tolerance. That court deemed the issue to present a question of legislative intent. It analyzed several statutes in New Jersey which a re similar to Tennessee Code Annotated section 55-10-408 (inference which can be raised by .10 percent by weight of alcohol in blood), Tennessee Code Annotated section 55-10-406 (implied consent law), and Tennessee Code Annotated section 55-10-405 (chemical test for alcohol content may include specimen of blood, urine, or breath). The New Jersey Court rejected the defendant’s argument that the inherent margin of error of the breathalyzer machine, where the result reported was .10, prevented the State from proving the offense beyond a reaso nable doubt. The New Jersey Court held:

In the present case, defendant seeks to blunt the Legislature’s resolve by giving new vigor to th e probative value of expert testimony in the interest of eliminating a possible deviation of 1/100 of a perc ent. If de fenda nt’s conte ntion is adopted, the presumptions established by N.J.S.A. 39:450.1(1) and (2), (see footnote one, supra) as well as the per se bright line of 0.10% would have to be adjusted in derogation of the statutes’ objective standards. The adjustment would have to be mad e on a case -by-ca se ba sis depending on the expert testimony introduced in each case. No expert is bound by the opinion evidence in the present case regarding any breathalyzer’s margin of deviation. Thus, the carefully construed regulatory scheme will in many cases again become a battle of the experts. As Tischio [State v. Tisch io, 107 N.J. 504, 527 A.2d 388 (1 987)] d emo nstrate d, that w ould be incon sistent with the Leg islature’s inte nt.

-9-

Moreover, if it cannot be determined, as appears to be the case, whether the tolerance is to be added to or subtracted from the breathalyzer reading, then, contrary to the statute, a 0.11% reading will be required to establish the per se violation.

Lentini, 573 A.2d at 467.

In King v. Commonwealth , 875 S.W.2d 902 (Ky. App. 1993), the defendant was convicted for a “per se DUI.” The Intoxilyzer 5000 machine was used to test the defendant’s blood alcohol concentration and gave a result of .100. There was uncontradicted evidence at trial that th e partic ular m achin e’s marg in of error was plus or minus .005. In the appeal, the defendant alleged that his rights to due process of law were violated when he was denied a directed verdict for acquittal given the fact that the results ad mitted into evidenc e were within the m argin of err or.

The Kentucky Court of Appeals stated the issue to be:

[I]s an Intoxilyze r 5000 re ading o f .100 sufficie nt, probative evidence to prove beyond a reasonable doubt that a person has an ‘alcohol concentration in his blood or breath of .10 or more’ as required by KRS 189A.010(1)(a) when the intoxilyzer machine in question has a margin of error of plus/minus .005? We think th at it is and affirm the Circu it Court.

King, 875 S.W.2d at 902.

The Kentucky Court of Appeals noted that in our imperfect world, any mac hine, in cludin g intoxily zers, w ould have a margin of error. The court then addressed the question of how much of a margin of error would be tolerated before a reading would no longer be credib le or be of any p robativ e value . Wh ile

-10-agreeing that the margin of error of the mac hine sho uld be cons idered in determining the probative value of the machine’s results, the court noted that the admis sibility of the evidence based upon the reliability of the machine was an issue for the trial judge. In reaching its conclusion, the Kentucky Court of Appeals held,

The .005 margin of error leaves the possibility of the absolute true reading to fall within the range o f .095 to .10 5. That is a possibility of five thousa ndths a bove or b elow a tru e readin g. Where the Legislature speaks in terms of an alcohol concentration of .10, they merely went into the hundredths . . . . To exclude a readin g with a poss ible error of five thousandths would be requiring the Com monw ealth to prove in the realm of beyond “any” doubt [as oppos ed to pro ving beyo nd a rea sonab le doub t].

King, 875 S.W .2d at 903 (em phasis add ed).

In State v. Rucker, 297 A.2d 400 (Del. Super. Ct. 1972), the trial court in Delaware reversed the dismissal of the defendant’s DUI case by the Delaware Court of Common Pleas. The pertinent statute, as quoted in the opinion states as follows:

Any person who drive s, operates, or has in actual physical control a motor vehic le while such person’s blood has reached a blood alcohol concentration of 1/10 of 1% or more, by weight, as shown by a chem ical an alysis of a blood, breath , or urine sam ple tak en with in four (4) hours of the a lleged offens e, sha ll be gu ilty unde r this section.

Rucker, 297 A.2 d at 402 .

The Delaw are C ourt of C omm on Ple as fou nd tha t the D efend ant’s reading from the “Mobat” machine was 0.104. With a margin of error of as much as 0.0 09, the poss ibility was that the Defe ndan t had a n actu al bloo d alco hol

-11-concentration of 0.095. O n this bas is, the lowe r court dism issed the case. In reversing, the trial court in Delaware held:

Under the terms of the statute, the trier of fact must determine whether the test res ults show the require d perc entag e of alc ohol in the blood. The trier o f fact is not free to disrega rd the mandate of the statute or to question the wisdom of the Gen eral As sem bly in provid ing that test res ults cons titute proof o f that elem ent of the crime.

The possible variance in results between various types of tests and the possible variances in readings between tests taken while the accused was driving and those taken afterwards may be an inherent weakness of the statutory provisions. The General Asse mbly could have c onsid ered th ese p ossib le varian ces w hen it enacted the legis lation, but the legislation is s o worde d as to preclud e these factors from being co nsidere d as issu es of fact.

Rucker, 297 A.2d at 402-03 (emphasis added)

Tennessee Code Annotated section 55-50-408 provides as follows:

Driving under the influence -- For purposes of this chapter and § 55-10-401, any person who drives, operates or exercises physical control of a commercial motor vehicle with a blood alcohol concentration of point zero four (.04) or more commits the offense of driving while under the influence of alcohol, in violation of § 55- 50-405.

Tennessee Code Anno tated s ection 55-10 -406( a)(1) p rovide s in part, “[a]ny person who drives any motor vehicle in the State of Ten ness ee sh all be deemed to have given consent to a test for the purpose o f determining the alcoh olic or drug content of that person’s blood;” Tennessee Code Annotated section 55-10-405(5) provides that “‘[t]est’ means any chemical test desig ned to determine the alcoholic or drug content of the blood. The specimen to be used for such te st shall inclu de bloo d, urine or b reath.”

-12-

In State v. Snyder, 835 S.W.2d 30 (Tenn. Crim. App. 1992), the defendant was convicted of a violation of Tennessee Code Annotated section 55-50-408. He was operating a tractor trailer rig and was stopped by an officer of the Tennessee Public Service Commission for a routine safety inspection. Detecting an odor of alcohol and bloodshot eyes, as well as two (2) empty beer cans and a partially full can of beer in the cab of the truck (a passenger was also inside), the officer administered an Intoximeter 3000 te st on the d efenda nt. The test was g iven twic e and each time re gistere d .04. A ll witnesses concurred that the defendan t’s ability to drive was not visibly impaired. In fact, that case reflects that the Public Service Commission officer ordered the defendant to drive from the scene of the inspection to the Carter County Courthouse for administration of the intoxim eter test. In overruling the de fendant’s issue that the trial court erred by not charging the jury that it had to find him actually physically under the influence of an intoxicant to return a guilty verdict, our court held:

By enacting T.C.A. § 55-50-408, the legislature mad e it a crime to operate a commercial motor vehicle with a blood alcohol conce ntration of p oint zero fo ur (.04) or m ore. Neith er the ne ed to prove impairment nor the rebuttable presumption contained in T.C.A. § 55-10-408 applies in such cases. The language of the statute is clear and references to the other DUI provisions in the code indicate that the legislature intended to create a higher standard of care for those who drive commercial motor vehicles.

Snyder, 835 S.W.2d at 32.

In State v. Sensing, 843 S.W .2d 412 (Tenn. 1992), our supreme court set forth new standards for a breath test to be admissible in court. In doing so, the court specifically discussed the Intoximeter 3000 and noted that it had a systematic error of plus or minus five (5%) percent or 0.005 percent weight to

-13-volume, whichever is grea ter. Wh ile acknowledging in the context of DUI cases (which are not “per se” DUI cases) that the scientific tests are co rroborative evidence which may exonerate as well as convict an accused person in a close case, the supreme court further stated,

Indeed the purpose of all the testing is to pro vide ob jective s cientific data to eliminate guesswork and speculation and to supplement the fallible observations of humans.

Sensing, 843 S.W.2d at 417.

I am inclined to accept the reasoning of the courts in State v. Lentini, 240 N.J.Super. 330, 573 A.2d 46 4 (1990 ), King v. C omm onwea lth, 875 S.W.2d 902 (Ky. App. 1993), and State v. Rucker, 297 A.2d 40 0 (Del. Supe r. Ct. 1972), in light of the above-quoted provisions of our statutory law and under the reason ing expre ssed in th e Ten nesse e case s of Sensing and Snyder.

Similar to New Jersey, our legislature has enacted statutes which reflect the impo rtance p laced up on curb ing the problem of drivers operating vehicles while und er the influe nce of into xicants. Spec ifically, an y driver in Tennessee has g iven his or her implied consent to be tested by blood, urine, or breath specimen when suspected o f operating a vehicle under the influence of intoxicants. Tenn. Code Ann. §§ 55-10-405 - 406. Tennessee Code Annotated section 55-50-408 is a “per se” driving und er the influe nce statu te similar to the statutes in New Jersey, Kentucky, and Delaware. Our supreme court in Sensing has approve d the ad missibility into evidence of the Intoximeter 3000 result when a proper found ation has bee n laid. Our court in Snyder has already recognized

-14-the legislative intent to create a high er standard o f care for those wh o drive commercial motor vehicle s. As in Kentucky, our legislature has spoken in terms of an alcohol concentration in the hundredths, rather than in the thousandths. Similar to the situation addressed by the Kentucky Court of Appeals in King, the marg in of error of the Intoxime ter 3000 is in the thousandths rather than the hundredths. When read in pari mate ria, our statutes show a legislative intent that the properly ta ken test re sults of a sp ecime n of brea th constitute proof of the necessa ry elem ent of b lood a lcoho l conce ntration . Ther efore, in this case there was sufficient evidence to susta in Defendant’s conviction upon an Intoximeter 3000 re ading o f .04. This is sue is with out me rit.

In his other attack upon the sufficiency of the evidence, Defendant argues that the convic tion sh ould b e reve rsed b ecau se the statute spea ks in terms of bloo d alco hol co ncen tration of .04 or more, and the Intoximeter 3000 machine gives th e resu lt by “weight of alcohol for every 100 cc’s or 100 milliliters of blood.” Mr. Heaney, the supervisor of the blood alcohol program for Tennessee, testified that the Intoximeter 3000 measures the weight of alcoh ol in the subject’s blood, i.e. it is the weight of alcoh ol for every 100 cu bic centimete rs of blood. He further testified that “blood alcohol concentration” is a general term that can m ean e ither vo lume of alco hol in the blood or weight of alcohol in the blood.

In a footnote to Sensing, our supreme court recognized that the term blood alcohol concentration is expressed in a percentage of weight by volume based upon th e gram s of alcoh ol per 10 0 cubic c entime ters of bloo d.

-15-Specifically, the cour t stated “a B AC (blo od alcoh ol conce ntration) of 0 .10% w /v means 0.10 grams of alcohol per 100 cubic centimeters of blood or 0.10 grams of alcohol per eve ry 210 liters of breath.” Sensing, 843 S.W.2d at 415, n. 2.

Under Sensing, the Defendant’s argument that this case should be dismissed becau se there was no t proof of “blood alcohol concentration” is without merit.

Having found Defendant’s issues to be without merit, we affirm the judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JOE G. RILEY, Judge

-16-