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State v. Clark10/30/2001
t." State v. Cook, 9 S.W.3d 98, 100-01 (Tenn. 1999). This court has discussed on many occasions the issue of whether eye to eye contact for the entire twenty minute period is necessary in order to meet the fourth requirement of Sensing. In State v. Luckett, No. M2000-00528-CCA-R3-CD (Tenn. Crim. App. at Nashville, Mar. 8, 2001), this court held that the purpose of the observation period is satisfied where the officer remains in very close proximity to the defendant for the entire time, engages him or her in conversation, and loses direct eye contact for only brief intervals of time. Similarly, in State v. Gregory L. Parker, No. M1999-00209-CCA-R3CD (Tenn. Crim. App. at Nashville, Dec. 30, 1999), perm. to appeal denied, (Tenn., Oct. 23, 2000), this court affirmed the trial court's admission of the defendant's breath test results based upon the officer being within close proximity of the defendant during the waiting period. But see State v. Korsakov, 34 S.W.3d 534 (Tenn. Crim. App. 2000)(evidence preponderates against the trial court's finding that the twenty minute requirement was satisfied where the officer was looking at paperwork during the waiting period); State v. Harold E. Fields, No. 01C01-9412-CC-00438 (Tenn. Crim. App. at Nashville, Apr. 12, 1996) (trial court erred in admitting results of breathalyzer test where deputy filled out paperwork during twenty minute time period and failed to keep the defendant in view entire twenty minutes); State v. Deloit, 964 S.W.2d 909 (Tenn. Crim. App. 1997)(trial court erred in admitting the results of defendant's breathalyzer test where officer filled out paperwork in the front seat of his vehicle while the defendant was in the back seat).
In the present case, Officer Wiley arrived at the sheriff's office at 12:49 a.m. Once inside, the Appellant also met with Deputy Lewis. Deputy Lewis testified that he observed the Appellant for a period of twenty minutes before the test was administered at 1:15 a.m. Deputy Lewis admitted that he did not have "eyeball to eyeball" contact with the Appellant the entire twenty minutes because he had to look down to enter the Appellant's data into the machine. Nonetheless, he testified that the Appellant was eight feet from him the entire time and that he did not observe the Appellant eat, drink, chew gum, smoke, regurgitate, vomit or belch prior to taking the test. Officer Wiley also remained with the Appellant until the test was administered. Officer Wiley testified that he sat and looked at the Appellant uninterruptedly for twenty minutes and that he was within "arm's length" of the Appellant the entire time. The State must establish, by a preponderance of the evidence, that the Appellant's mouth was free of foreign matter for a period of twenty minutes prior to his taking the breathalyzer test. We conclude that the State has met this burden.
CONCLUSION
After review, we find that the State established the six requirements set forth in Sensing by a preponderance of the evidence. Accordingly, the Appellant's conviction for DUI is affirmed. As previously noted in footnote 1 of this opinion, this case is remanded to the trial court for entry of a judgment of conviction.
DAVID G. HAYES, JUDGE
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