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State v. Whittington11/10/2005
test." State v. Cook, 9 S.W.3d 98, 101 (Tenn. 1999).
Donald Fox, an officer in the Metro DUI Unit of the Shelby County Sheriff's Department, testified that he suspected the defendant of driving under the influence after stopping him for speeding. When the defendant consented to a breath test to determine his blood alcohol level, Officer Fox observed him for twenty minutes before administering the test. He testified that the defendant did not belch. Furthermore, the officer testified that had the defendant belched, the instrument he used to conduct the test would have indicated mouth alcohol and not yielded a result. The state introduced as evidence a videotape that recorded the twenty-minute waiting period. After reviewing the tape during the suppression hearing, the officer was unable to detect belching on the part of the defendant. On cross-examination, Officer Fox acknowledged that during the twenty-minute waiting period, he saw the defendant move his hand toward his mouth twice, stick his tongue out of his mouth once, and cough once in order to clear his voice. He testified, however, that he was unaware of any standard or instruction from the manufacturer of the testing instrument with regard to the suspect either coughing or clearing his throat during the waiting period.
The defendant claimed that he had belched three times and coughed once during the twenty-minute period. No other evidence was presented during the hearing.
At the conclusion of the hearing, the trial court determined that the videotape did not support the defendant's claim that he had belched. It ruled that there is no requirement prohibiting suspects from either coughing or clearing their throats during the waiting period. It concluded that because the requirements of Sensing were satisfied, the motion to suppress the results of the blood alcohol test should be overruled.
The evidence in the record does not preponderate against the finding of the trial court that the defendant did not belch during the waiting period. The trial court specifically accredited the testimony of the officer based upon its independent observations of the videotape. Because, on appeal, the prevailing party is entitled to the strongest legitimate view of the evidence, the judgment of the trial court is affirmed.
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