Opinion
Docket No. 25182.
Decided January 17, 1977.
Appeal from Allegan, George R. Corsiglia, J. Submitted October 28, 1976, at Lansing. (Docket No. 25182.) Decided January 17, 1977.
Robert L. Stark was convicted of driving under the influence of intoxicating liquors. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Fred R. Hunter, III, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Thomas C. Nelson, Assistant Attorney General, of counsel), for the people. Kelly Oole, for defendant.
Before: QUINN, P.J., and R.B. BURNS and M.F. CAVANAGH, JJ.
This appeal presents an issue of first impression in this jurisdiction:
"Subsequent to the administration of a Breathalyzer test, does the routine practice, on the part of law enforcement officials, of discarding the non-reusable ampoules used in the test constitute a constitutionally impermissible suppression of evidence violative of due process of law?"
Defendant contends that the answer to this question is "yes", thus necessitating reversal of his third (felony) conviction of driving under the influence of intoxicating liquor. MCLA 257.625; MSA 9.2325. We disagree, and affirm the conviction.
A clear description of the operation of the Breathalyzer is given by the California Supreme Court in People v Hitch, 12 Cal.3d 641, 644; 117 Cal.Rptr. 9, 11; 527 P.2d 361, 363 (1974):
"The breathalyzer used in the test is an electrically powered apparatus designed to calculate the extent of alcohol in the suspect's circulatory system. The suspect blows into a tube and a sample of his breath is trapped inside the machine. The trapped sample is then permitted to bubble through a glass test ampoule containing three cubic centimeters of 0.025 percent potassium dichromate in a 50-percent-by-volume sulphuric acid solution which acts as a reagent to any alcohol suspended upon the suspect's breath. If alcohol is present in the sample, it produces a change in the color and the light transmissibility of the solution. Upon the passage of a light beam through the test ampoule, the relative light transmissibility of the solution is registered on a meter which calculates the percent of alcohol in the suspect's blood.
"The machine is calibrated so as to provide a reading by establishing a correlation between the test ampoule and a reference ampoule which is identical in specification."
Defendant-appellant Stark underwent two such tests upon his arrest, the results of which were .22 and .21 (percent by weight of alcohol in the blood) respectively. A level of .10 gives rise to the presumption of intoxication under MCLA 257.625a; MSA 9.2325(1).
Defendant's due process argument is based on Brady v Maryland, 373 U.S. 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), and on Hitch, supra. Brady enunciated the basic rule regarding criminal discovery and due process as follows:
"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 US at 87; 83 S Ct at 1196-1197; 10 L Ed 2d at 218. (Emphasis added.)
This due process requirement of disclosure applies to evidence which might lead a jury to entertain a reasonable doubt about a defendant's guilt, Giglio v United States, 405 U.S. 150; 92 S Ct 763; 31 L Ed 2d 104 (1972), and the test should be "liberally construed" whenever there is substantial room for doubt as to the effect disclosure might have. People v Eddington, 53 Mich. App. 200, 206; 218 N.W.2d 831, 834 (1974).
The relevance of the critical concepts of materiality and favorability in the context of the Breathalyzer was elaborated upon by the court in Hitch. As to materiality:
"[T]he results of the breathalyzer test by their very nature constitute material evidence on the issue of guilt or innocence upon a charge of drunk driving. * * * Thus * * * evidence substantially affecting the credibility [e.g., the test ampoules] of the results of the test would appear to be material and the suppression of such evidence would deny defendant a fair trial." 12 Cal. 3d at 647; 117 Cal Rptr at 13-14; 527 P.2d at 365-366. (Emphasis in original.)
As to favorability:
"[W]e are of the view that if, given the availability of the test ampoule and its contents, and the reference ampoule, there is a reasonable possibility that they would constitute favorable evidence on the issue of guilt or innocence, then such evidence must be disclosed." 12 Cal. 3d at 649; 117 Cal Rptr at 15; 527 P.2d at 367. (Emphasis added.)
The Hitch court then concluded that the findings of the lower court in that case were to the effect that preservation of the ampoules would yield a "reasonable possibility" that they might "impeach the accuracy and credibility of the results of the test", 12 Cal. 3d at 649; 117 Cal Rptr at 15; 527 P.2d at 367. The court then concurred with United States v Bryant, 142 US App DC 132, 141; 439 F.2d 642, 651 (1971), that "the duty of disclosure is operative as a duty of preservation", and held (prospectively), that "intentional but nonmalicious" destruction of the Breathalyzer ampoules would require that the results of the Breathalyzer test be excluded from evidence.
Defendant argues that the application of Brady enunciated by the California Supreme Court in Hitch should be adopted by this Court. However, other states have rejected Hitch.
In State v Bryan, 133 N.J. Super. 369, 374; 336 A.2d 511, 514 (1974), the Superior Court of New Jersey concluded that "[t]he State should not be forced to afford the defendant a second chance to check the workability of the machine when defendant has the opportunity under [the statute] to an independent test". Such an independent test is expressly provided for by MCLA 257.625a(3); MSA 9.2325(1)(3). This opportunity, which defendant did not exercise, renders his assertion of a due process violation less than persuasive. We are also cognizant that this defendant did in fact have two Breathalyzer tests (with different ampoules) with virtually identical results.
Both the Legislature and the courts of this state have determined the Breathalyzer to be a scientifically reliable device accurate for measuring blood alcohol content. People v Kozar, 54 Mich. App. 503; 221 N.W.2d 170 (1974). In this regard, the opinion of the Oklahoma Court of Criminal Appeals in Edwards v State, 544 P.2d 60 (1975), demonstrates the thrust and effect of defendant's reasoning:
"[W]e are not convinced as was the California court in Hitch that the evidence here in question [the ampoules] is actually material with respect to the issue of the guilt or innocence of the defendant. True, * * * we cannot do other than accept defendant's contention that the results of the breathalyzer test would constitute material evidence with a direct bearing upon defendant's guilt or innocence. [Citation omitted.] This is not to suggest, however, that a similar significance would automatically attach to each component in the breathalyzer machine simply because it contributes to the normal operation of the instrument. To adopt this line of reasoning would have the desired effect of exposing to continuous question any mechanical device or scientific method used by law enforcement officials in the performance of their duties." 544 P.2d at 62.
The Court concluded:
"Defendant's objection goes more properly to the weight to be assigned the test result in the lower court's evaluation of the facts as presented, than to its admissibility, given the strict adherence here in evidence to the rules and procedures established by the Board for the conduct of such examinations." 544 P.2d at 64.
The trial court in our case took extensive testimony on the attributes of the ampoules and on the accuracy of the Breathalyzer test. Defendant's own expert testified that only 2% of the 200 ampoule retestings that he had conducted revealed a significant variation in result. Plaintiff's expert, Dr. Edgar W. Kievela, systematically refuted this testimony to indicate that the chances of an inaccurate Breathalyzer result due to ampoule irregularity are minute upon testing by a competent operator. Dr. Kievela also testified as to the guarantees of accuracy gained from Michigan's ampoule spot-check system similar to that affirmed as sufficient in State v Bryan, supra.
The trial court found as a fact that in this case the ampoules would not be material evidence. The defendant waited 72 days to request the production of the used ampoules. Defendant's own expert testified that the used ampoules were of little value after 30 days.
We agree with the trial court that in this case the production of the ampoules when requested would not be material evidence.
Affirmed.