IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED FEBRUARY 1998 SESSION July 2, 1998 Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE ) ) NO. 01C01-9703-CR-00094 Appellee ) ) PICKETT COUNTY v. ) ) HON. JOHN A. TURNBULL DAVID L. HATHAWAY ) ) (D.U.I.)

Appellant. ) )

CONCURRING OPINION I concur in the result reached by Judge Barker in his thorough opinion.

Having concurred with Judge Wade in his opinion in State v. Jerry Wayne Edison, No. 03C01-9605-CC-00199 (Tenn. Crim. App., Knoxville, June 18, 1997) that an abuse of discretion standard applies to this court’s review of the trial court’s ruling on the admissibility of intoximeter results, I write separately to indicate that I favor the Edison standard of review as opposed to the standard of preponderance of the evidence to which Judge Barker adheres in this case. I agree that the trial court’s decision would be affirmed under either standard of review.

_________________________ CURWOOD WITT