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State v. Cook12/20/1999
ng requirements regardless of whether the issue is raised prior to trial or whether an objection is made at trial. Cohen et al., § 401.24, at 131 ("Compliance with State v. Sensing is a `condition precedent' to the admissibility of the breath test.") (footnotes omitted). Accordingly, the State's comment that the defense counsel may engage in "sandbagging" by intentionally opting not to raise the matter prior to trial is dubious. Moreover, this Court should not require the defense to file a pretrial motion simply to advise the prosecution that it may have a defect in its proof or some problem in establishing the appropriate evidentiary foundation. The responsibility for establishing the Sensing requirements rests only with the prosecution, not the defense.
Finally, the State's concern for its right to appeal an adverse ruling is misplaced for two reasons. First, as we observed in Sensing:
t is a rare case in which the only evidence introduced to establish that a suspected offender is under the influence is either a breath or a blood test. In most cases there is the testimony of the arresting officer and others at the scene concerning the arrestee's driving pattern and their observations of the individual, including his speech, breath and eyes. Often a field sobriety test has been administered. Scientific tests are corroborative evidence and may serve to exonerate as well as to convict an accused in a close case.
Id. at 416-17 (emphasis in original). Second, the argument for preserving a possible appeal by the State would arguably apply to any evidentiary ruling made by the trial court that is adverse to the prosecution. If the position is carried to its logical conclusion, then a defendant would be required to seek pretrial suppression of each component of the prosecution's evidence--photographs, documents, physical evidence, proposed expert testimony--to avoid the penalty of waiver and to preserve a possible appeal by the State in the event the evidence is excluded. We have never given such a broad construction to Rule 12(b)(3).
CONCLUSION
We conclude that the dentures worn by Cook were not shown to have affected the result of the breath-alcohol test and that the evidence therefore does not preponderate against the trial court's ruling. We further hold that a defendant is not required to challenge a breath-alcohol test by filing a pretrial motion pursuant to Tenn. R. Crim. P. 12(b)(3), but rather, may make a timely objection at trial if the prosecution has failed to establish the Sensing requirements. Accordingly, the judgment of the Court of Criminal Appeals is affirmed. Costs are assessed against the appellant, Willard C. Cook, Sr.
Riley Anderson, Chief Justice
Concur: Drowota, Birch, and Holder, JJ. Barker, J., Not Participating
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