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State v. Cook12/20/1999
AFFIRMED
We granted this appeal to determine whether dentures constitute "foreign matter" requiring invalidation of a breath-alcohol test result and to consider whether the admission of a breath-alcohol test result must be challenged by a pretrial motion under Tenn. R. Crim. P. 12(b)(3) or whether an objection may be made at trial.
After a jury-out hearing, the trial court concluded that the presence of dentures did not preclude admission of the breath-alcohol test result. The defendant was thereafter convicted of driving under the influence of an intoxicant.
The Court of Criminal Appeals affirmed the conviction, holding that the record was insufficient to explain what effect, if any, the presence of dentures had on the test results and that the officer administering the test in this case was justified in relying on the defendant's response that he had no foreign matter in his mouth. A majority of the court further stated that a defendant is not required to challenge the admissibility of breath-alcohol test results prior to trial.
After reviewing the record and applicable authority, we agree with the lower courts that the defendant's dentures were not shown to have affected the breath-alcohol test result in this case. We also hold that because the burden of establishing a foundation for the admissibility of a breath-alcohol test lies with the prosecution, a defendant may challenge its admissibility either before or during the trial.
BACKGROUND
The defendant, Willard C. Cook, Sr., was stopped in the early morning hours of July 11, 1993, by a Tennessee Highway Patrolman. Cook's car had been drifting from lane to lane and was about to make an improper turn onto a one-way street. Cook had an odor of alcohol on his breath and bloodshot eyes. Cook told the officer he had been drinking, and he failed two field sobriety tests.
Cook was arrested for driving under the influence of an intoxicant and taken to the Coffee County Jail. He agreed to take a breathalyzer test and signed the consent form. Coffee County Jailer Charles Jones administered the test, which determined that Cook's blood alcohol content was .13%.
Prior to Jones' testimony at trial, defense counsel objected to the admission of the results of the breath-alcohol test. The trial court said that the objection should have been made prior to trial pursuant to Tenn. R. Crim. P. 12(b)(3), but nonetheless held a jury-out hearing. Jones testified in the hearing that he had asked whether Cook had any foreign matter in his mouth prior to administering the test, and Cook replied that he "had nothing." Jones admitted that he was unaware that Cook was wearing dentures with a cotton pad and that had he known, he would have had Cook remove them before taking the test. Jones testified, however, that he had never been instructed that dentures affect a test.
The trial judge ruled that the presence of dentures went to the weight of the test results and not to their admissibility. After the trial resumed and in the jury's presence, Jones reiterated that he did not know that Cook had been wearing dentures. Had he known, Jones would have asked Cook to remove the dentures because foreign matter can affect a test result. Jones also testified, however, that the breathalyzer used, the Intoximeter 3000, will abort a test if it reads alcohol from a mouth instead of from the deep lung area, and will dispense a print-out stating "mouth alcohol." Jones testified that the machine did not do so in this case. The jury convicted Cook of driving under the influence .
The Court of Criminal Appeals affirmed the conviction. The court determined that there w
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