Opinion
Rehearing Denied May 16, 1974.
Opinion on pages 159-164 omitted.
REHEARING GRANTED [*]
For Opinion on Hearing see, 117 Cal.Rptr. 9, 527 P.2d 361.
Roger W. Borrell, Oxnard, for defendant and respondent.
Richard S. Buckley, Public Defender, Los Angeles, Harold E. Shabo, Deputy Public Defender, Renzi & Kilbride and Fred Kilbride, Los Angeles, as amici curiae on behalf of defendant and respondent.
Evelle J. Younger, Atty. Gen., Howard J. Schwab, Deputy Atty. Gen., Woodruff J. Deem, Dist. Atty., and Nancy Sieh, Deputy Dist. Atty., for plaintiff and appellant.
McCOMB, Justice.
The People appeal from an order of the Ventura County Municipal Court suppressing evidence and dismissing a complaint (Pen.Code, § 1385) for misdemeanor drunk driving (Veh.Code, § 23102, subd. (a)).
Facts: On September 10, 1970, defendant was arrested on suspicion of drunk driving and given a breathalyzer test. Such a test involves the use of equipment designed to determine the alcoholic content of a breath sample introduced by the suspect's blowing into a tube. The sample, trapped in the machine, is allowed to bubble through a test ampoule. The ampoule is a glass phial containing three cubic centimeters of a .025 percent potassium dichromate in a 50 percent by volume sulphuric acid solution. If there is any alcohol in the breath sample, there will be a change in color and in the light transmissibility of [113 Cal.Rptr. 160] [520 P.2d 976] the solution correlative to the amount of alcohol present. The change in light transmissibility is registered on a meter, which calibrates the degree of alcohol in the circulatory system of the suspect.
The testing officer determines the amount of fluid in the test ampoule by reference to a 'go no go' gauge. The ampoule is not used if amount is inadequate. The testing officer calibrates the machine by use of a reference ampoule, one which is identical in specification with the test ampoule, but which remains intact, while the top of the test ampoule is broken to allow the breath sample to bubble through. Once calibrated, the breathalyzer is set by the officer so that when a reading is taken, a mark appears on graph paper.
The normal procedure was used in the test administered to defendant. The result showed a blood alcohol level of .20 milligrams percent blood alcohol. At the conclusion of the test, county officials discarded the test ampoule and its contents, pursuant to standard practice. Prior to trial, defendant moved to suppress the results of the test on the ground that the destruction of the test ampoule and its contents deprived him of due process. The trial court ruled that if defendant could show that preservation of the ampoule and its contents would have been of value to the defense, the intentional, although nonmalicious, destruction did deny him due process.
After extensive hearings, the trial court made detailed findings of fact, finding that although the original test can never be duplicated, it can be approximated and that a greatly varying second test could impeach the first. The court found that the quantity of solution in the test and reference ampoules, the total quantity of chromium metal present in the test ampoule during the test, and any optical defects in the ampoules are all critical to the test result and can be accurately determined on a retest. The court further found that, given the availability of the reference ampoule, another reference ampoule of the same ampoule lot, the test ampoule and its contents, and the bubbler tube, it is possible to retest the chemical change that occurred in the contents of the test ampoule during the test and obtained a rough check on the accuracy of the original test. It also found, however, that depending on the lapse of time and the manner in which the test amopule and the solution have been stored, gross changes can occur in the solution; that following the administration of a breathalyzer test, continued chemical changes in the contents of the test ampoule are inevitable due to the nature of the substances therein; and that all such changes upon retesting will show up as a higher blood alcohol level than was actually measured at the time of the test, the rate and the amount being unpredictable.
The trial court concluded, among other things, that preservation of the test ampoule, the contents thereof, the reference ampoule, and the bubbler tube would have provided information of value to both the prosecution and the defense and that the intentional, but nonmalicious, destruction of these items deprived defendant of due process of law by making valuable evidence unavailable. The court then granted defendant's motion to suppress the results of the breathalyzer test and ordered that the action be dismissed.
Questions: First. Did the trial court properly grant defendant's notion to suppress the results of the breathalyzer test?
Yes. Under section 13354, subdivision (c), of the Vehicle Code, upon the request of a person who has been arrested for drunk driving and given a blood, breath, or urine test at the direction of a peace officer, full information concerning the test must be made available to the person tested or his attorney. If a breath test is given, and it is established that preservation of the test ampoule and the contents thereof would have provided evidence of value to a defendant charged with drunk driving, in that they could possibly result in his exoneration, the destruction thereof, even though done nonmaliciously, deprives him of due process. (See People v. Noonan, 20 Cal.App.3d 862, 865-866(1, 2), 98 Cal.Rptr. 125; Van Halen v. Municipal [520 P.2d 977] Court, 3 Cal.App.3d 233, 236-237(1), 83 Cal.Rptr. 140.)
[113 Cal.Rptr. 161]There is a certain analogy between cases such as the present one, involving the destruction of exhibits, and the so-called 'loss of informant' cases. With respect to the latter, this court in Eleazer v. Superior Court, 1 Cal.3d 847, 83 Cal.Rptr. 586, 464 P.2d 42, and People v. Goliday, 8 Cal.3d 771, 106 Cal.Rptr. 113, 505 P.2d 537, made it clear that not only can the prosecution not withhold information which might assist the defense in efforts to locate and produce an informant who is a material witness to a crime, but that the police and the district attorney must make reasonable efforts in good faith to locate such a person, so that either party, or the court itself, could, if it is so desired, subpena him as a witness. The duty referred to does not arise unless the informant is shown to be a material witness. When such a showing is made, it becomes apparent that loss of the evidence could constitute a detriment to the defendant and hamper him in his defense. Since it is the police who generally have had the principal contact with the informant, a defendant may to a large extent be dependent upon the state for information respecting the informant's identity and whereabouts; and it is for this reason that the above mentioned duty is imposed when the informant is a material witness to the crime.
Similarly, in cases involving tests, such as the breathalyzer test, administered by the police, the state has control of the evidence; and the defendant is dependent on the state for its production. Accordingly, once a showing has been made that it is reasonably possible that evidence with respect to the test could assist the defense, due process requires that it be produced or the results of the test suppressed, unless it is shown that the items which were destroyed could not have been preserved without unreasonable effort.
In the present case, the trial court found that preservation of the test ampoule and its contents would have been of value to the defense; and there is substantial evidence in the record to support the trial court's finding. Its conclusion that the intentional, but nonmalicious, destruction of the items deprived defendant of due process of law by making valuable evidence unavailable is therefore warranted, the assumption being made that by its ruling the trial court impliedly found that the prosecuting agencies could, without unreasonable effort, have preserved the items which were destroyed.
In Covington v. Municipal Court, 273 Cal.App.2d 470, 78 Cal.Rptr. 563, it was held that there was no denial of due process where the defendant's pretrial discovery motion to examine chemical substances used by the police in administering a breath test following his arrest was denied, it appearing that the used ampoule had been destroyed in good faith after its use, that the defendant had not requested that it be preserved, that the evidence was devoid of any basis for concluding that the officer administering the test had any intention of suppressing evidence, and that there was no showing that the People would refuse to comply with a defense request for full information concerning the test. The Court of Appeal apparently considered, as did the trial court in that case, that the 'full information' to which the defendant is entitled under section 13354, subdivision (c), of the Vehicle Code must be interpreted to refer only to evidence which is available when requested. To the extent that Covington is inconsistent with the views expressed herein, it is disapproved.
Although in the present case the trial court found, supported by substantial evidence, that certain paraphernalia used in connection with the test and subsequently destroyed would have provided information of value to the defense, this court can visualize that from case to case the evidence and the result may vary. (See People v. Noonan, supra, 20 Cal.App.3d 862, 865-866(2), 98 Cal.Rptr. 125; Van Halen v. Municipal Court, supra, 3 Cal.App.3d 233, 236(1), 83 Cal.Rptr. 140.) Under the circumstances, it is to be hoped that [520 P.2d 978] the Legislature will make an appropriate study and, based upon proper expert opinion, [113 Cal.Rptr. 162] determine whether or not any of the items used in the breathalyzer test can, as a practical matter, be properly preserved, and, if so, enact statutory or administrative changes prescribing what items must be preserved and the minimum standards for effecting their preservation. If such legislative enactments meet constitutional requirements, it would become a simple matter to determine in each individual case whether the defendant had shown that evidence over which the state had control and could without unreasonable effort have preserved, and which would have been of value to him, was unavailable.
It is anticipated that 120,000 persons arrested for drunk driving during the coming year will subject themselves to breathalyzer tests.
Second. Did the trial court properly dismiss the complaint?
No. As stated in Van Halen v. Municipal Court, supra, 3 Cal.App.3d 233, 238(3, 2b), 83 Cal.Rptr. 140, 143: 'Evidence of a breathalyzer or other chemical test is not a necessary element of a prosecution for drunk driving. Many defendants were tried and convicted of that offense long before chemical tests were discovered or used; since petitioner here was arrested before the breathalyzer test was administered, there must necessarily exist evidence from the arresting officer tending to show the fact of his intoxication. If the evidence of the breathalyzer test is excluded, there is no reason why the People may not, if they desire, go forward with whatever other proof may be available.'
The order of the trial court is affirmed insofar as it suppresses the results of the breathalyzer test and is reversed insofar as it dismisses the complaint.
WRIGHT, C. J., and TOBRINER, MOSK, BURKE, SULLIVAN, and ROTH, JJ., concur.
Assigned by the Chairman of the Judicial Council.
Rehearing denied; CLARK, J., did not participate.
[*] See 12 Cal.3d 641 for subsequent opinion.
Sections 1219.1, subdivision (d), and 1219.2, subdivision (a), of title 17, California Administrative Code, which became operative shortly after defendant's arrest, require that portions of blood and urine samples taken in tests administered under section 13353 of the Vehicle Code be retained; but there is no requirement that any items used in the breathalyzer test be retained.