Petition — California v. Trombetta

‘ | Office Supreme Court, U.S.

ve 3 -305 FILED

_ —AUE—29 1983

IN THE SUPREME COURT ieee STEVAS,

CLEFK

OF THE

UNITED STATES

_

OCTOBER TERM, 1983

__

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

Vv.

ALBERT WALTER TROMBETTA, et al.,

Respondents,

PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL,

FIRST APPELLATE DISTRICT

JOHN K. VAN DE KAMP,

Attorney Genera] ‘

WILLIAM D. STEIN

Chief Assistant Attorney

General--Criminal Divison

GLORIA F. DE HART

Deputy Attorney General

CHARLES R. B. KIRK

Deputy Attorney General

6000 State Building

San Francisco, CA 94102

Telephone: (415) 557-3944

Attorneys for Petitioner

QUESTIONS PRESENTED

(1) Does the duty to preserve evidence

(2)

under federal due process’ forbid

the use in a drunk driving case of a

breath testing machine which auto-

matically expels and thus destroys

the breath sample during the test

process?

Does the duty to preserve evidence

under federal due process compel

law enforcement to gather evidence

for use of the defendant?

PARTIES TO PROCEEDING

The California Court of Appeal con-

solidated four separate cases in this

proceeding, all of which involved drunk-

driving prosecutions. In addition to

respondent Trombetta (No. A016358), the

decision affects Michael Gene Cox (No.

A016374), Gregory Moller Ward (No.

AO17265), and Gale Bernell Berry (No.

A017266). The Cox case (No. A016374) was

itself a consolidated case which involved,

in addition to Cox, Thomas Nelson Muldoon,

Clinton James Brown, Densel Lee Furner,

Patricia Jane Keeffe, Herbert John

Berreyessa, and James kK. £Schneider.

Table of Contents

Opinions Below

Jurisdiction

Constitutional Provision

Involved

Statement of the Case

Procedural Background

Facts

Reasons for Granting the Writ

Argument

I. There Is No Preservation

Requirement Without Prac-

tical Physical Possession.

II. There Is No Requirement

To Gather Material For

The Accused, Especially

Where Of Speculative

Value.

Conclusion

Page

aq vu YO

12

15

18

29

ii.

Table of Cases

Baca v. Smith

(Ariz. 1980) 604 P.2d 617

Bergenthal v. Cady

(7th Cir. 1972) 466 F.2d 635

cert. den., 409 U.S. 1109

Brady v. Maryland

(1963) 373 U.S. 83

Fields v. Alaska

(9th Cir. 1975) 524 F.2d 259

Garcia v. Dist. Court,

2lst Jud. Dist.

(Colo. 1979) 589 P.2d 924

Giglio v. United States

(1971) 405 U.S. 150

Montoya v. Metropolitan Court

(N.M. 1982) 651 P.2d 1260

Moore v. Illinois

(1972) 408 U.S. 783

Norris v. Slayton

(4th Cir. 1976) 540 F.2d 1241

Partin v. State

(Ga. 1978) 232 S.E.2d 46

People v. Hitch

(1974) 12 Cal.3d 641

117 Cal.Rptr. 9

527 P.2d 361

17

18

iii.

Table of Cases (Cont.)

People v. Miller

(1975) 52 Cal.App.3d 666

125 Cal.Rptr. 341

People v. Reed

(Il1l.App. 1981) 416 N.E.2d 694

People v. Superior Court (Scott)

(1980) 112 Cal.App.3d 602

169 Cal.Rptr. 412

People v. Vick

(1970) 11 Cal.App.3d 1058

90 Cal.Rptr. 236

Riley v. Sigler

(8th Cir. 1971) 437 F.2d 258

South Dakota v. Neville

(1983) U.S. _

103 S.ct 516, 74 L.Ed. 748

State v. Carlson

(Minn. 1978) 267 N.W.2d 170

State v. Cloutier

(Me. 1973) 302 A.2d 84

State v. Cornelius

(N.H. 1982) 452 A.2d 464

State v. Larson

(N.D. 1981) 313 N.W.2d 750

State v. Lee

(Fla.App. 1982) 422 8.2d 76

State v. Lightle

(Kan. 1972) 502 P.2d 834

14

22

17

27

13

17

17

14

26

14

17

Table of Cases (Cont.)

State v.

iv.

Newton

(S.C. 1980) 262 S.E.2d 906

State v.

Phillipe

(Fla.App. 1981) 402 S.3d 33

State v.

Thomas

(Wash. 1969) 454 P.2d 203

State v.

Young

(Kan. 1980) 614 P.2d 441

United States v. Agurs

(1976) 427 U.S. 97

United States v. Bryant

(D.C. Cir. 1971) 439 F.2d 642

United States v. Love

(Sth Cir.

1973) 482 F.2d 213

18

17

Vv.

Texts, Statutes & Authorities

Title 28, United States Code

§ 1257(3)

Calif. Health & Safety Code

§ 436.50

§ 436.52

Calif. Vehicle Code

§ 13353 (a)

§ 13354 (b)

Advisory Committee on Alcohol

Determination, Department of

Health, Notes of Meeting of

August 31, 1982, p. 29

Page

26

No.

=

—__

— — _ — —

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1983

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

Vv.

ALBERT WALTER TROMBETTA, et al.,

Respondents.

_—

—_—_——

PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL,

FIRST APPELLATE DISTRICT

Petitioner, the People of the State

of California, respondent below,

respectfully petitions that a writ of

certiorari issue to the California Couit

of Appeal, First Appellate District, to

review the decision of that Court filed

on March 28, 1983, as modified on

@3e

April 27, 1983, and held that law enforce-

ment agencies must preserve a sample of

the breath of a suspect tested on suspi-

cion of drunken driving, or its equiva-

lent, to satisfy federal due process

standards.

OPINIONS BELOW

The opinion filed by the Court of

Appeal on March 28, 1983, is reported at

141 Cal.App.3d 400, 190 Cal.Rptr. 319.

[Appendix B.] This opinion was substan-

tially modified on April 27, 1983, and the

opinion as modified was ordered

republished in its entirety appearing at

142 Cal.App.3d 138, _ Cal.Rptr. __.

[Appendix A.]

JURISDICTION

On March 28, 1983, the California

Court of Appeal for the First Appellate

District filed its opinion dismissing

/

/

Jeo

appeals taken by two groups of defend-

ants2/ and granting writs of habeas cor-

pus as to two other groups; the opinion

also established a rule binding upon

future breath alcohol testing by agen-

cies enforcing California's drunk

driving laws. On April 27, 1983, a

petition for rehearing was denied, and a

substantially modified version of the

Original opinion was filed. On June 23,

1983, the California Supreme Court

Genied the People's petition for a

hearing.

On July 1, 1983, the Court of Appeal

issued an order staying issuance of the

remittitur through August 30, 1983, to

1. Although these appeals were dis-

missed on technical grounds, the deci-

sion is specifically applicable to the

defendants who brought the appeals, none

of whom have yet been tried on the drunk

Griving charges. As to these persons,

the decision amounts to an order sup-

pressing evidence. (See 142 Cal.App. 3d

-4-

permit the People to file a petition for

certiorari in this Court.

The jurisdiction of this Court is

invoked under Title 28, United States

Code, section 1257(3).

CONSTITUTIONAL PROVISION INVOLVED

The case involves interpretation of

the due process clause of section 1 of the

Fourteeneth Amendment to the Constitution,

which provides, insofar as pertinent,

that:

"No State shall make or enforce

any law which shall abridge the

privileges or immunities of

citizens of the United States;

nor shall any State deprive any

person of life, liberty, or

property, without due process of

law « « « ‘«"

-5-

STATEMENT OF THE CASE

Procedural Background

All of these cases involve efforts

by defendants charged with violation of

California's drunk driving laws to

suppress the results of breath alcohol

tests obtained on an Intoxilyzer

machine,

In the Trombetta and Cox group of

cases, the defendants made a pre-trial

motion to suppress the Intoxilyzer test

results, which motions were denied by

the Municipal Court. The defendants

then appealed to the Appellate Depart-

ment of the Superior Court, which

affirmed the Municipal Court, but certi-

fied the issue to the Court of Appeal.

Although the Court of Appeal held that

an appeal to the Appellate Department

was not available (142 Cal.App.3d at

140-141; [A-3)), it nevertheless applied

its decision to Trombetta and Cox (142

~6-

Cal.App.3d at 144; [A-17]) who have not

yet been tried. The decision therefore

acts as an order suppressing evidence in

these two groups of cases.

In the Ward and Berry cases, the

Gefendants had already been convicted of

Grunken driving and brought writs of

habeas corpus in the Court of Appeals

challenging their convictions. The deci-

sion orders new trials for these defend-

ants at which trials evidence of the

breath-test results will be excluded (142

Cal.App.3d at 145; [A-18)).

Facts

Under California law, a drunk

driving suspect is given his choice of

submitting to a test of his blood,

breath, or urine. (Calif. Veh. Code,

§ 13353(a).) Each of these defendants,

after a lawful arrest on suspicion of

drunk driving, was given a breath test

upon an Intoxilyzer, an approved test

oJo

instrument, for the purpose of deter-

mining his blood alcohol level. The

legal issues turn upon the operation of

the instrument itself.

The following explanation of

Intoxilyzer operation is found in People

v. Miller (1975) 52 Cal.App.3d 666, 668-

669, 125 Cal.Rptr. 341, 342:2/

"The subject's breath is

captured in a metal chamber,

infrared energy of fixed inten-

sity and wave length is passed

through the chamber from one

2. People v. Miller provides what

is the clearest and most succinct of all

Intoxilyzer explanations. In the pres-

ent case, the Court of Appeal did not

quarrel with that explanation and in

fact cited it (142 Cal.App.3d at 14l-

142; [A-7)). Miller, however, found the

Intoxilyzer constitutional and rejected

the very argument successfully made in

Court of Appeal here (52 Cal.App.3d at

669-670, 125 Cal.Rptr. at 342-343). It

was this portion of piller with which

the Court of Appeal “fu tally dis-

[A-14].

side of a photo-electric cell on

the other side. Alcohol absorbs

light of the fixed wave length.

The device computes the loss of

energy, translates the result in

terms of the grams of alcohol

per 100 milliliters of blood,

and prints the result upon a

card. In the prescribed opera-

tion of the device, clean air is

first tested, then the breath of

the subject. The chamber is

then purged by blowing clear air

through it, the clear air is

tested, and all three results

appear upon the printed card,

The two tests of clear air con-

stitute a test of the machine,

and should show zero alcohol

content. It is apparent that no

test result, save the printout

-9-

card, was available for

preservation,"

The following facts concerning the

operation of the Intoxilyzer were found

by the Municipal Court judge in the

Trombetta case:2/

"It appears to this court that

from the testimony elicited and

from the evidence submitted,

that at best a state when using

the 40ll-W Intoxilyzer unit,

temporarily collects or gathers

breath of a tested individual.

The chamber which collects this

3. The only factual findings at the

trial level were made in the Trombetta

case. <A copy of Judge Antolini's find-

ings are included as Appendix C. The

Cox group of cases came from the same

county as Trombetta and were governed by

that finding. Wo factual findings were

made in Ward or Berry since the trial

court considered itself bound by the

decision in pects v. M (1975) 52

Cal. -3d 666, 5 Cal. &r 341, which

has already been quoted.

breath contains it only for a

period of time necessary to

conduct an analysis of this

breath. By the construction of

the machine itself, namely that

of having two or[i])fices, one

for introduction and one for

the expulsion of the sample, it

appears to the court that the

temporary control over’ the

breath makes the ultimate dis-

Sipation and destruction of the

sample an inherent and obvious

consequence of using that par-

ticular intoxilyzer unit. The

argument that the state is in

control of the breath and that

by choosing to purge that

sample, destroys it, is an

argument that in the court's

opinion is reductio ad absur-

dum. Mr. Murray, the defense

elie

witness, stated in substance,

that the intoxilyzer collects

breath but not for later analy-

sis and then must be purged in

order to be useable again,

Without an addition to the

present intoxilyzer unit it

appears to the court that it

would be impossible to exercise

permanent control resulting in

preservation of any sample.

Therefore, it would appear to

the court that the destruction

of any temporarily collected

sample would not be through the

actions or efforts of the

state, but rather through the

workings of the machine itself."

-12-

REASONS FOR GRANTING THE WRIT

Years ago in Brady v. Maryland

(1963) 373 U.S. 83, this Court estab-

lished a federal due process requirement

to preserve material evidence favorable

to the accused. Purporting to apply this

standard, the California Court of Appeal

held that use of a machine to test the

breath of a suspected drunken driver is

unconstitutional unless a sample of the

defendant's breath, or its equivalent, is

preserved. Since the machine is not

designed to preserve a sample, and in

fact automatically destroys the sample

tested by pumping it into the air after

the test is run, the decision forbids use

of that device which is the overwhelming

choice (82%) of California law enforce-

ment agencies. Furthermore, the decision

effectively condemns all California

breath-testing instruments, none of which

preserve breath samples, and hence the

1 3=

test method used in two-thirds of

California's drunk driving cases. As

this Court has recognized in South

Dakota v. Neville (1983) __ U.S. __,

__- 103 S.Ct 916, 920, 74 L.Ed. 748,

755, the importance of enforcing drunk

driving laws cannot be overemphasized.

This Court has not addressed the

evidence preservation requirement of

federal due process for many years, and

the Brady duty has received different

interpretations by state courts. In

California, an earlier appellate deci-

sion specifically approved the instru-

ment now condemned, rejecting the very

argument now adopted, (People v. Miller

(1975) 52 Cal.App.3d 666, 125 Cal.Rptr.

341.) The breath preservation require-

ment has similarly resulted in a split

of authority among other state courts.

(See Baca v. Smith (Ariz. 1980) 604 P.2d

617 (required); Garcia v. Dist. Court,

14.

21st Jud. Dist. (Colo. 1979) 589 P.2d 924

(required); State v. Lee (Fla.App. 1982)

422 S.2d 76 (rejected); People v. Reed

(I11.App. 1981) 416 N.E. 2d 694

(rejected); State v. Young (Kan. 1980)

614 P.2d 441 (rejected); Montoya vy.

Metropolitan Court (N.M. 1982) 651 P.2d

1260 (rejected); State v. Larson (N.D.

1981) (rejected); State v. Newton (S.C.

1980) 262 S.E.2d 906 (rejected); State v.

Cornelius (N.H. 1982) 452 A.2d 464, 465

(rejected). Only this Court can resolve

the dispute,

The decision below essentially

requires law enforcement agencies to

collect evidence for possible use by the

accused--an extension of the Brady doc-

trine with astounding consequence. We do

not believe that was ever intended by

Brady, and that a clear statement of the

parameters of the federal due process

-15-

preservation requirement from this Court

is needed.

I

THERE IS NO PRESERVATION

REQUIREMENT WITHOUT PRAC-

TICAL PHYSICAL POSSESSION.

The Intoxilyzer, as described in

People v. Miller (1975) 52 Cal.App. 3d

666, 668-€69, 125 Cal.Rptr. 341, 342,

and by Judge Antolini here, temporarily

holds a breath sample blown into it by a

drunk driving suspect, and then after

the infrared analysis is made, automati-

cally pumps the sample out into the room

air. This purging is necessary to run

the test itself since a sample of room

air is also tested on the machine to

insure that the machine is operating

accurately. It is also necessary to

pump out the air in order to use the

instrument again with other suspects.

This is how the machine was designed by

-16-

its manufacturer.4/

Whatever the preservation standard

of Brady v. Maryland (1963) 373 U.S. 83,

it does not extend to evidence which the

state did not possess in a form permit-

ting preservation as a practical manner.

What Brady requires is that once the

state has taken evidence into its posses-

sion, it cannot throw it away. This

duty cannot extend to something that the

state never had in the first place.

(People v. Miller (1975) 52 Cal.App.3d

666, 669-670, 125 Cal.Rptr. 341, 343;

State v. Young (Kan. 1980) 614 P.2d 441,

446.) As noted in Miller, supra, "The

test by intoxilyzer ... may have

‘gathered' evidence in the sense of

Placing the breath in the chamber, but

4. All hreath testing instruments

approved in California destroy’ the

sample. In the Breathalyzer, the sample

is chemically consumed; in the gas chro-

matograph devices, the sample is burned,

it was not evidence of which the govern-

ment could ‘take possession.'"

| Up until now, it has been held that

a test procedure which by its nature

destroys the material tested does not

violate federal due process. (See

People v. Vick (1970) 11 Cal.App.3d

1058, 1066, 90 Cal.Rptr. 236, 241-242

(autopsy; body destroyed); State v.

Lightle (Kan. 1972) 502 P.2d 834

(chemical test; pills destroyed); State

v. Carlson (Minn. 1978) 267 N.W.2d 170

(chemical test; bloodstain destroyed);

State v. Cloutier (Me. 1973) 302 A.2d 84

(chemical test; pill destroyed); Partin

v. State (Ga. 1978) 232 S.E.2d 46

(chemical test; cocaine destroyed);

United States v. Love (Sth Cir. 1973)

462 F.2d 213, 218-219 (chemical test;

gun powder residue destroyed); State v.

Thomas (Wash. 1969) 454 P.2d 203

(chemical test; marijuana sample

-18-

destroyed). In rejecting a Brady attack

on another breath testing instrument, the

Kansas Supreme Court was correct when it

concluded that "the prosecution cannot be

accused of failing or refusing to dis-

close exculpatory evidence which does not

exist." (State v. Young (Kan. 1980) 614

P.2d 441, 446.)

II

THERE IS NO REQUIREMENT TO

GATHER MATERIAL FOR THE

ACCUSED, ESPECIALLY WHERE

OF SPECULATIVE VALUE.

California's evidence preservation

requirement arises from People v. Hitch

(1974) 12 Cal.3d 641, 645-646, 650, 117

Cal.Rptr. 9, 12-13, 15, 527 P.2d 361,

364-365, 367, which found the federal

genesis in Giglio v. United States (1°71)

405 U.S. 150, 153-154; Brady v. Maryland

(1963) 373 U.S. 83, 87; and United States

v. Bryant (D.C. Cir. 1971) 439 F.2d 642,

651. In Moore v. Illinois (1972) 408

-19-

U.S. 783, 794-795, this Court explained

that:

"The heart of the holding

in Brady is the prosecution's

suppression of evidence, in the

face of a defense production

request, where the evidence is

favorable to the accused and is

material either to guilt or to

punishment. Important, then,

are (a) suppression by the

prosecution after a request by

the defense, (b) the evidence's

favorable character for’ the

defense, and (c) the material-

ity of the evidence." ,

Brady does not require the state to

take affirmative steps and gather evi-.

dence for the accused. Yet that is what

the California Court of Appeal insists

upon here. As noted in People v. Miller

(1975) 52 Cal.App.3d 666, 670, 125

-20-

Cal.Rptr. 341, 343, with the Intoxilyzer

"The only element reducible to possession

was the printout card, which has been

preserved." In finding the facts below,

Judge Antolini observed that "Without an

addition to the present intoxilyzer unit

+ « « it mould be impossible to exercise

permanent control resulting in preserva-

tion of any sample." Requiring the state

to develop some system for retaining a

breath sample represents affirmative

conduct for the sole benefit of the

accused--something never before required

as a Brady duty. The difficulty posed to

law enforcement by such an obligation is

apparent. As the court observed in

People v. Miller, supra,

"The unwarranted extension

+ « « could have strange and

unsettling results. If all

evidence which can be made

demonstrative must be so

@2ie

transformed, we shall encounter

problems with extrajudicial

declarations which, with fortu-

itous foresight, could have

been tape-recorded, and eye-

witness observations of events

which could have been photo-

graphed,"

In rejecting the claimed duty to pre-

serve breath in State v. Young (Kan.

1980) 614 P.2d 441, 446, and the opin-

ions of courts which required it, the

Kansas Supreme Court observed:

"The basis for this requirement

in this case is not well

defined. These courts seem to

be aware that other courts do

not require an extra sample.

They hold in a general way,

however, that it is incumbent

upon the state to employ regu-

lar procedures to preserve

~22=

evidence for the defendants.

They require a state agent, in

the regular performance of his

duties, to reasonably foresee

what evidence 'might be favor-

able to the accused' and to

obtain and preserve the same

for the defendant's use.

[Citation.]) The difficulty of

accepting this logic in the

present case is apparent. The

item in question here is merely

a sample of breath from the

accused himself, which he alone

can furnish for independent

testing by his own physician as

authorized by... [statute).”

Like Kansas, California law specifically

provides that a drunk-driving suspect has

an absolute right to have his own sample

collected and tested by his own expert.

(Cal. Veh. Code, § 13354(b).) Police

@23<

officers are forbidden from interfering

with that right. (See People v.

Superior Court (Scott) (1980) 112

Cal.App.3d 602, 605, 169 Cal.Rptr. 412,

413.) Due process does not require

more, (State v. Young, supra; State v.

Cornelius (N.H. 1982) 452 A.2d 464,

465.)

Nor could a Brady duty to preserve a

breath sample possibly arise unless it

were proven that a practical means of

preservation exists which permits a

reliable retest. As the Florida Court

of Appeal noted in State v. Lee

(Fla.App. 1982) 422 S.2d 76, 78:

"Although some courts have

held that failure by the state

to automatically preserve a

breath sample is tantamount to

suppression of evidence, those

holdings have comé where the

defendant has shown that the

-24-

preservation was scientifically

possible. ... We have found

no case which has considered

the defendant's due _ process

contention concerning the

state's failure to produce a

breath sample without evidence

and findings at the trial level

that it was scientifically pos-

Sible for the state to collect

and preserve such a sample."

(Accord, People v. Reed (I11.App. 1981)

416 N.E.2d 694, 697.) The trial court

below did not make such a finding. The

California Court of Appeal refused to

address the issue.

The Court of Appeal placed great

reliance on Garcia v. Dist. Court, 2lst

Jud, Dist, (Colo. 1979) 589 P.2d 924,

928-929, in which there was evidence that

samples could be preserved. In view of

the subsequent field experience with the

=25<

"Colorado method" outline in Montoya v.

Metropolitan Court (N.M. 1982) 651 P.24d

1260, 1261, in which the head of

Colorado's Department of Health testi-

fied that the retests were erroneous

80-90 percent of the time, it can hardly

be contended that a "preserved" breath

sample would yield material evidence for

the accused. Not only are there no

breath analysis instruments approved for

use in California2/ which themselves

capture and preserve a breath sample,

but there are no capturing devices

approved to attach to them. As a

5. Under California law, law

enforcement agencies may only use

instruments which have been tested and

evaluated by the state Department of

Health. (Calif. Health & Saf. Code.,

§ 436.52.) "The intoxilyzer has been

subjected to rigid scrutiny and testing

by a state agency qualified in this

technical field. It has been approved

for use under the detailed regulations

prescribed by that agency." (People v.

Miller (1975) 52 cal.App.3d »» 670,

al.Rptr. 341, 343.)

=26-

matter of fact, the scientific body

which the California Legislature

established to advise the Department of

Health on matters of this sort (Calif.

Health & Saf. Code, § 436.50) has

recently concluded that no device

currently exists anywhere which would

permit a reliable retest of a breath

sample. (Advisory Committee on Alcohol

Determination, Department of Health,

Notes of Meeting of August 31, 1982,

p. 29.) This unreliability has prompted

a number of state courts to reject reten-

tion requirements. (See State v.

Phillipe (Fla.App. 1981) 402 S.3d 33, 34;

State v. Larson (N.D. 1981) 313 N.W.2d

750, 755-756; id.; State v. Newton (S.C.

1980) 262 S.E.2d 906, 909 n. 1.) Federal

courts have never found a Brady violation

where the destroyed evidence would not

tend to exculpate the defendant or had no

real evidentiary value. (See Norris v.

@279=

Slayton (4th Cir. 1976) 540 F.2d 1241,

1243-1244; Fields v. Alaska (9th Cir.

1975) 524 F.2d 259, 260-261; Bergenthal

v. Cady (7th Cir. 1972) 466 F.2d 635,

cert. den., 409 U.S. 1109; Riley v.

Sigler (8th Cir. 1971) 437 F.2d 258,

259-260; see also United States v. Agurs

(1976) 427 U.S. 97, 109 n. 16.) Brady

does not require preservation of “any

evidence which might conceivably aid the

defense in the preparation of its case."

(Williams v. Wolf (8th Cir. 1973) 473

F.2d 1049, 1054.) "This extension of the

Brady doctrine is not justified as a

mater of constitutional law." (Edwards

v. Oklahoma (D. Okla. 1976) 429 F.Supp.

668, 671, rev'd on other grounds, 577

F.2d 1119 (10th Cir. 1978).)

An even greater step beyond Brady

was made when the Court of Appeal

required the state to "preserve the cap-

tured evidence or its equivalent for

-28-

the use of the defendant." (142

Cal.App.3d at 144; emphasis added.) of

the devices approved in California, only

the Intoxilyzer is non-destructive; the

others physically consume the sample in

the test process. (See fn. 4, supra.)

This would mean that a completely dif-

ferent sample than even the police used

would have to be taken for the defend-

ant's testing. And in the case of the

Intoxilyzer, even the retention devices

used in Colorado do not preserve the

breath; they purport to capture the

alcohol portion of the breath with an

absorbant. In other words, there is no

device whatsoever which would permit the

defendant to retest--however unreliable--

the same sample in the same form as that

tested by the police.

/

/

/

-29-

CONCLUSION

Petitioner respectfully requests

this Court to grant certiorari to review

this significant federal issue and pro-

vide a clear exposition of the standard

which should guide the various state

courts.

DATED: August 22, 1983

JOHN K. VAN DE KAMP,

Attorney General

WILLIAM D. STEIN

Chief Assistant Attorney

General--Criminal Divison

GLORIA F. DE HART

Deputy Attorney General

CHARLES R. B. KIRK

Deputy Attorney General

Attorneys for Petitioner

CRBK:1d

APPENDIX A

A-1l

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, A016358

Plaintiff and Respondent,

Vv. (Sonoma Sup.

Ct. No.

ALBERT WALTER TROMBETTA, 209-C)

Defendant and Appellant.

/

THE PEOPLE, A016374

Plaintiff and Respondent,

Vv. (Sonoma Sup.

Ct. No.

MICHAEL GENE COX, et al., 215-3)

Defendants and Appellants.

/

In re GREGORY MOLLER WARD A0172€5

on Habeas Corpus. 1 Crim. 23779

/

In re GALE BERNELL BERRY A017265

on Habeas Corpus. 1 Crim 22517

/

These cases arise, in diverse proce-

Gural settings, from misdemeanor prosecu-

tions for driving under the influence of

intoxicating liquor (formerly Veh. Code

4‘ s

A-2

§§ 23101, subd. (a), or 23102, subd. (a);

now §§ 23153, subd. (a), or 23152, subd.

(a), respectively). The issue raised is

whether intoxilyzer breath results are

rendered inadmissible in a trial for

driving under the influence of intoxi-

cating liquor by virtue of the failure of

law enforcement officials to preserve a

retestable breath sample.

In each case the municipal court

Genied the defendant's common law motion

to suppress the evidence obtained fron an

intoxilyzer breath test. Each defendant

then appealed to the superior court which

affirmed the lower court order; the cases

were then certified for transfer to this

court. In the Trombetta and Cox groups

of cases this court accepted transfer.

It appears that Trombetta and its compan-

ion case have not proceeded to trial.

The record does not indicate whether the

cases in the Cox group have proceeded to

-

A-3

trial; no judgment was entered in these

cases.

An appeal may not be taken from a

pretrial order of the municipal court.

(Code Civ. Proc., § 904.2.) The correct

procedure in Trombetta and Cox would

therefore have been for the defendants

to wait until a judgment was entered in

the municipal court and then appeal that

judgment. Because no appealable order

was challenged in Trombetta and Cox

those appeals should have been dismissed

by the appellate department of the

superior court. (People v. Superior

Court (Scott) (1980) 112 Cal.App.3d 602,

606.)

In the Ward and Berry cases judg-

ments of conviction were followed by

superior court appeals; transfers to the

Court of Appeal were denied whereupon

those defendants petitioned the Supreme

Court for writs of habeas corpus. The

A-4

Supreme Court issued orders in Ward and

Berry to show cause before this court why

relief should not be granted.

Each defendant was arrested for

Griving under the influence of alcohol.

(Formerly Veh. Code §§ 23101, subd. (a),

Or 23102, subd. (a); now §§ 23153, subd.

(a), Or 23152, subd. (a), respectively).

Each was asked to select any one of three

blood alcohol level tests (breath, blood,

Or urine). Law enforcement officers

urged the defendants to select the breath

test and each did select that test. The

breath tests were conducted on an Omicrom

Intoxilyzer. Each defendant's breath

registered an alcohol level of at least

0.10. No defendant was told that a

breath sample would be saved.

The Legislature has established a

presumption that a driver whose blood

alcohol level is less than 0.05 percent

is not under the influence of an

A-5

alcoholic beverage. If the blood alco-

hol level is between 0.05 percent and

0.10 percent, no presumption arises.

(Veh. Code, § 23155, subd. (a).) How-

ever, another statute provides "It is

unlawful for any person who has a 0.10

percent or more, by weight, of alcohcl

in his or her blood to drive a vehicle

upon a highway or upon other than a

highway in areas which are open to the

general public. ..." (Veh. Code, §

23152, subd. (b).) Thus, the statute

establishes guilt where chemical blood

alcohol tests prove that the percent of

alcohol is 0.10 percent or more, without

any showing of actual impairment.

Given the importance of accurate

determination of blood alcohol levels,

and the greater convenience of breath

testing as opposed to testing of blood

or urine, the Legislature has directed

the State Department of Health Services

A-6

to establish by regulation, procedures to

be used by law enforcement agenices in

administering breath tests for the pur-

poses of determining the concentrations

of alcohol in a person's blood. (Health

& Saf. Code, § 436.52.) These regula-

tions are contained in title 17 of the

California Administrative Code, sections

1220 et seq. Three of the breath testing

devices which require discussion had been

approved by the Department of Health

Services as of December 20, 1979: the

intoxilyzer, the breathalyzer, and the

intoximeter field crimper-indium tube

encapsulation kit.

A brief description of the operation

of the intoxilyzer follows: Prior to any

test, the device is purged by pumping

Clean air through it until readings of

0.00 are obtained. The breath test

requires a sample of "“alveolar" (deep

lung) air (Cal. Admin. Code, tit. 17,

A-7

§ 1219.3); to assure that such a sample

is obtained, the subject is required to

blow air into the intoxilyzer at a con-

stant pressure for a period of several

seconds. A breath sample is captured in

the intoxilyzer's chamber and infrared

light is used to sense the alcohol

level. Two samples are taken, and the

result of each is indicated on a print-

out card, The two tests must register

within 0.02 of each other in order to be

admissible in court. After each test,

the chamber is purged with clean air and

then checked for a reading of zero

alcohol. (See People v. Miller (1975)

52 Cal.App.3d 666, 668-669.) The

machine is calibrated weekly, and the

calibration results, as well as a por-

tion of the calibration samples, are

available to the defendant.

The breathalyzer operates on a com-

pletely different principle. (See

A-8

People v. Hitch (1974) 12 Cal.3d 641,

644.) To conduct a breathalyzer test,

the breath sample is captured in a glass

ampoule containing exactly three cubic

centimeters of a chemical solution. If

alcohol is present, it changes the trans-

lucency of the solution. The alcoholic

content is then measured by shining a

beam of light through the solution. The

test ampoule and the test solution can

then be retained for retesting by the

defendant.

Finally, the operation of the intox-

imeter field crimper-indium tube encapsu-

lation kit must be considered. This

"kit" can be used in the field to collect

a breath sample which is separate from

the sample collected by the intoxilyzer.

The device is independent from the breath

testing devices and is in effect only a

breath collection as opposed to a breath

testing device. The subject blows into

A-9

an indium tube which captures the breath

sample. The indium tube is a soft metal

device used to capture and preserve a

breath specimen for later analysis. The

tube originally is in a single piece but

when the sample is blown into the tube,

it can be crimped to hold the breath

sample in three separate compartments.

These containers can then be placed in a

gas chromatograph (intoximeter) device

which will test the sample for blood

alcohol content. The gas chromatograph

is an approved device for blood alcohol

determination; the indium tube is

approved for use with the gas chromato-

graph if the sample is tested within 14

Gays of collection. (Instruments

Approved for Breath Alcohol Analysis,

Dept. of Health, Dec. 20, 1979.)

Defendants contend that there are

three grounds upon which this court

should require suppression of the

A-10

evidence obtained from the intoxilyzer

tests: the duty of the prosecution to

preserve evidence, equal protection, and

requirements of informed consent. We

deal only with the first ground.

The contention is that under People

v. Hitch, supra, 12 Cal.3d 641, the

failure of law enforcement personnel to

Capture and preserve a retestable breath

Sample violated due process and rendered

the intoxilyzer results inadmissible. In

Hitch, the Supreme Court held that a law

enforcement agency conducting a chemical

test for alcohol has a duty to preserve

and disclose all material evidence which

the agency has gathered. The court held

that a due process violation occurred

when the defendant's test specimen and

test solution from a breathalyzer test

were discarded. The defendant's eventual

attempts to utilize discovery to verify

independently the alcoholic content of

A-1l

the ampoule, to ascertain that exactly

three centimeters of the solution had

been used, and to examine the glass

ampoule itself for any defects which

would alter the alcohol reading were

thus unfairly frustrated, (Id., at

pp. 649-650.)

The Hitch court, in considering the

admissibility of “breathalzyer” results,

determined initially that the results of

the blood alcohol test “by their very

nature constitute material evidence on

the issue of guilt or innocence upon a

charge of drunk driving.” (Id., 12

Cal.3d at p. 647.) The court held that

the investigative agency involved in the

test has a duty not only to disclose

such material evidence but also to

preserve it. Accordingly, the court

stated that "where, as here, such evi-

dence cannot be disclosed because of its

intentional but nonmalicious destruction

A-12

by the investigative officials, sanctions

shall .. . be imposed for such nonpre-

servation and nondisclosure unless the

prosecution can show that the governmen-

tal agencies involved have established,

enforced and attempted in good faith to

adhere to rigorous and systematic

procedures designed to preserve’ the

[evidence]. The prosecution shall bear

the burden of demonstrating that such

duty to preserve the [evidence] has been

fulfilled." (Id., at pp. 652-653.) If

this burden is not met, the results of

the test are to be excluded at trial.

Since the Hitch rule implements a federal

due process standard, (id., at pp. 645,

646) it is unaffected by California

Constitution, article I, section 28, sub-

Givision (d). (See Brosnahan v. Brown

(1982) 32 Cal.3d 236.)

In the present case, it is conceded

that no effort was made to capture breath

A-13

specimens for later testing by the

defense. Defendants contend that the

intoxilyzer evidence should therefore

have been excluded from trial.

In denying many recent motions to

exclude intoxilyzer results, many lower

courts have relied on People v. Miller,

supra, 52 Cal.App.3d 666. In Miller,

the Court of Appeal examined "the ques-

tion [of] whether the recent decision of

the Supreme Court (People v. Hitch, 12

Cal.3d 641) should be extended to render

inadmissible the results of all chemical

tests of breath conducted by use of the

"Omicron Intoxilyzer.'" (People v.

Miller, supra, 52 Cal.App.3d at p. 668.)

The Miller court determined that “Hitch

merely holds that evicence which the

prosecution once possesses must be held.

The test by intoxilyzer ... may have

‘gathered' evidence in the sense of

placing the breath in the chamber, but

A-14

it was not evidence of which the govern-

ment could ‘take possession.' The only

element reducible to possession was the

printout card, which has been preserved,"

(Id., at pp. 669-670.)

We disagree fundamentally with the

Miller characterization of what happens

when a breath sample is taken. That is,

in our view, such a taking is the collec-

tion of evidence within the Hitcn ration-

ale. The question then is whether the

specimen may be exhausted in testing

without taking available steps to obtain

and preserve another specimen for

retesting.

A similar situation confronted the

Colorado Supreme Court in Garcia v.

Dist. Court, 21st Jud, Dist, (Colo. 1979)

589 P.2d 924. Colorado, like California,

uses urine, blood or breath tests for a

determination of alcohol level, and

A-15

samples of blood and urine "are custom-

arily preserved for the use of the

defense and to insure that the test is

accurate," (At. p. 926.) In further

Similarity to California, a presumption

of driving under the influence arises

from a certain level of alcohol in the

blood. (Ibid.)

Two fact situations were before the

Garcia court. In one, the breathalyzer

tests and ampoules were destroyed in

accordance with standard police proce-

dures; in the other, the defendant was

given a "Luckey Alco-Analyzer" breath

test, which could not preserve a sample

for testing. In both cases, the defend-

ants' motions to suppress the results of

the tests were denied.

Recognizing that in the first situ-

ation a sample of the defendant's breath

"could have been preserved", and in the

second other methods existed to preserve

A-16

the defendant's breath, the court con-

cluded: "The failure of the state to

collect and preserve evidence, when those

acts can be accomplished as a mere inci-

dent to a procedure routinely performed

by state agents, is tantamount to sup-

pression of that evidence." (At. pp.

929-930.) "We hold, therefore, that in

all cases where a defendant elects to

submit to a breath test to determine his

blood alcohol level, he must be given a

separate sample of his breath at the time

of the test or the alcoholic content of

his breath in a manner which will permit

scientifically reliable independent

testing by the defendant, if that test is

to be used as evidence. [Citations.)”"

(At. p. 930.)

We are persuaded that the reasoning

of the Colorado court -- parelleling the

Hitch rationale -- is sound and that the

same result should prevail in California.

A-17

Due process demands simply that where

evidence is collected by the state, as

it is with the intoxilyzer, or any other

breath testing device, law enforcement

agencies must establish and _ follow

rigorous and systematic procedures to

preserve the captured evidence or its

equivalent for the use of the defendant.

(People v. Hitch, supra, 12 Cal.3d at

pp. 652-653.)

With the exception of the cases

reviewed in this decision (i.e.,

A016358, A016374, A017265, A017266) this

holding will apply prospectively only to

tests performed after this decision has

become final. Although we place primary

reliance upon People v. Hitch, supra, 12

Cal.3d 641, it may reasonably be pre-

sumed that law enforcement activities in

breath taking have been performed in

good faith reliance upon People v.

Miller, supra, 52 Cal.App.3d 666, which,

A-18

as we have noted, reached a conclusion

contrary to our holding today.

The Trombetta and Cox groups of

appeals are dismissed; in the Ward and

Berry proceedings, writs of habeas corpus

will issue granting new trials at which

the intoxilyzer evidence will be

excluded.

Certified for Publication.

Poche, J.

I concur:

Rattigan, Acting P.J.

People v. Trombettay (Cox, Ward & Berry)

8, A 7 A e A

A-19

People v. Trombetta, et al.

KOLE3SS, A016374, AOLI265, A017266

I concur fully in the judgment and

write separately only to emphasize that

by this decision we do not prescribe or

recommend any particular devices or pro-

cedures but hold simply that those

before us in these cases do not satisfy

the due process requirements of People

v. Hitch (1974) 12 Cal.3d 641. In each

case, the arresting officer urged the

defendant to choose the breath rather

than the blood or urine test but failed

to inform him that as a consequence of

this selection no sample would be

retained. In none did the officer

advise the driver of his right to pres-

ervation of a breath sample and obtain

from him a waiver of that right. The

Arizona Supreme Court has held that such

a procedure is constitutionally ade-

quate. (Baca v. Smith (1979) 604 P.2d

A-20

617, 618-620.) As no Griver here gave a

knowing and intelligent waiver of his

right to preservation of evidence, that

question is not reached here. Similarly,

we do not consider here a situation in

which police establish and diligently

follow rigorous and systematic procedures

for preservation of samples but circum-

stances beyond their control frustrate

retention of a sample in a particular

instance. As the majority opinion indi-

cates, the core requirement of Hitch is

establishment of and adherence to proce-

dures which ensure fairness in the admin-

istration of field tests. The responsi-

bility for designing those procedures

lies with the Legislature and with state

and local law enforcement agencies.

Christian, J.

APPENDIX B

B-1

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, A016358

Plaintiff and Respondent,

Vv. (Sonoma Sup.

Ct. No.

ALBERT WALTER TROMBETTA, 209-C)

Defendant and Appellant.

THE PEOPLE, A016374

Plaintiff and Respondent,

Vv. (Sonoma Sup.

Ct. No.

MICHAEL GENE COX, et al., 215-3)

Defendants and Appellants.

/

In re GREGORY MOLLER WARD A017265

on Habeas Corpus. 1 Crim. 23779

/

In re GALE BERNELL BERRY A017265

on Habeas Corpus. 1 Crim 22517

7

These cases arise, in diverse proce-

dural settings, from misdemeanor prosecu-

tions for criving under the influence of

intoxicating liquor (formerly Veh. Code

B-2

§§ 23101, subd. (a), or 23102, subd. (a);

now §§ 23153, subd. (a), Or 23152, subd,

(a), respectively). The issue raised is

whether intoxilyzer breath results are

rendered inadmissible in a drunk driving

trial by virtue of the failure of law

enforcement officials either (1, to pre-

serve a retestable breath sample although

a device which preserves breath samples

for retesting is available, or (2) to

inform the detained motorist that no

retestable specimen will be preserved if

he selects breath rather than blood or

urine as the test medium.

In each municipal court case the

Gefendant moved to suppress evidence

obtained from an intoxilyzer breath test.

(Pen. Code, § 1538.5.) These motions

were denied. Each defendant’ then

appealed to the superior court which

affirmed the lower court order; the cases

were then certified for transfer to this

B-3

court. In the Trombetta and Cox groups

of cases this court accepted transfer.

It appears that Trombetta and its com-

panion case have not proceeded to trial.

The record does not indicate whether the

cases in the Cox group have proceeded to

trial; no judgment was entered in these

cases.

An appeal may not be taken from a

pretrial order of the municipal court.

(Code. Civ. Proc., § 904.2.) The

correct procedure in Trombetta and Cox

would therefore have been for’ the

defendants to wait until a judaqment was

entered in the municipal court and then

appeal that judgment. Because no

appealable order was challenged in

Trombetta and Cox those appeals should

have been dismissed by the appellate

Gepartment of the superior court.

(People v. Superior Court (Scott) (1980)

112 Cal.App.3d 602, 606.)

B-4

In the Ward and Berry cases judg-

ments of conviction were followed by

superior court appeals; transfers to the

Court of Appeal were denied whereupon

those defendants petitioned the Supreme

Court for writs of habeas corpus. The

Supreme Court issued orders in Ward and

Berry to show cause before this court why

relief should not be granted.

Each defendant was arrested for

Griving under the influence of alcohol.

(Formerly Veh. Code §§ 23101, subd. (a),

Or 23102, subd. (a); now §§ 23153, subd.

(a), Or 23152, subd. (a), respectively).

Each was asked to select any one of three

blood alcohol level tests (breath, blood,

Or urine). Law enforcement officers

urged the defendants to select the breath

test and each did select that test. The

breath tests were conducted on an Omicrom

Intoxilyzer. Each defendant's breath

registered an alcohol level of at least

B-5

0.10. No defendant was told that a

breath sample would be saved.

The Legislature has established a

presumption that a driver whose blood

alcohol level is less than 0.05 percent

is not under the influence of an alcoho-

lic beverage. If the blood alcohol

level is between 0.05 percent and 0.10

percent, no presumption arises. (Veh,

Code, § 23155, subd. (a).) However,

another statute provides "It is unlawful

for any person who has a 0.10 percent or

more, by weight, of alcohol in his or

her blood to drive a vehicle upon a

highway or upon other than a highway in

areas which are open to the general

public. .. .®* (Veh. Code, § 23152,

subd. (b).) Thus, the statute

establishes guilt where chemical blood

alcohol tests prove that the percent of

alcohol is 0.10 percent or more, without

any showing of actual impairment.

B-6

Given the importance of accurate

determination of blood alcohol levels,

and the greater convenience of breath

testing as opposed to testing of blood or

urine, the Legislature has directed the

State Department of Health Services to

establish by regulation, procedures to be

used by law enforcement agenices in

administering breath tests for the pur-

poses of determining the concentrations

of alcohol in a person's blood. (Health

& Saf. Code, § 436.52.) These regula-

tions are contained in title 17 of the

California Administrative Code, sections

1220 et seq. Three of the breath testing

devices which require discussion were

approved by the Department of Health

Services as of December 20, 1979: the

intoxilyzer, the breathalyzer, and the

intoximeter field crimper-indium tube

encapsulation kit.

B-7

A brief description of the opera-

tion of the intoxilyzer follows: Prior

to any test, the device is purged by

pumping clean air through it until

readings of 0.00 are obtained. The

breath test requires a sample of

"alveolar" (deep lung) air (Cal. Admin.

Code, tit. 17, § 1219.3); to assure that

such a sample is obtained, the subject

is required to blow air into the intoxi-

lyzer at a constant pressure for a

period of several seconds. A breath

sample is captured in the intoxilyzer's

chamber and infrared light is used to

sense the alcohol level. Two samples

are taken, and the result of each is

indicated on a printout card. The two

tests must register within 0.02 of each

other in order to be admissible in

court. After each test, the chamber is

purged with clean air and then checked

for a reading of zero alcohol. (See

People v. Miller (1975) 52 Cal.App.3d

666, 668-669.) The machine is calibrated

weekly, and the calibration results, as

well as a portion of the calibration

samples, are available to the defendant.

The breathalyzer operates on a com-

pletely different principle. (See People

v. Hitch (1974) 12 Cal.3d 641, 644.) To

conduct a breathalyzer test, the breath

sample is captured in a glass ampoule

containing exactly three cubic’ cen-

timeters of a chemical solution. If

alcohol is present, it changes the trans-

lucency of the solution. The alcoholic

content is then measured by shining a

beam of light through the solution. The

test ampoule and the test solution can

then be retained for retesting by the

defendant.

Finally, the operation of the intox-

imeter field crimper-indium tube encapsu-

lation kit must be considered. This

B-9

"kit" can be used in the field to

collect a breath sample which is

separate from the sample collected by

the intoxilyzer. The device is indepen-

dent from the breath testing devices and

is in effect only a breath collection as

opposed to a breath testing device. The

subject blows into an indium tube which

captures the breath sample. The indium

tube is a soft metal device used to cap-

ture and preserve a breath specimen for

later analysis. The tube originally is

in a single piece but when the sample is

blown into the tube, it can be crimped

to hold the breath sample in three

separate compartments. These containers

can then be placed in a gas chroma-

tograph (intoximeter) device which will

test the sample for blood alcohol con-

tent. The gas chromatograph is an

approved device for:' blood alcohol

determination; the indium tube is

B-10

approved for use with the gas chromato-

graph if the sample is tested within 14

days of collection. (Instruments

Approved for Breath Alcohol Analysis,

Dept. of Health, Dec. 20, 1979.)

Defendants contend that there are

three grounds upon which this court

should require suppression of the evi-

dence obtained from the _ intoxilyzer

tests: the duty of the prosecution to

preserve evidence, equal protection, and

requirements of informed consent. we

deal only with the first ground.

The contention is that under People

v. Hitch, supra, 12 Cal.3d 641, the

failure of law enforcement personnel to

Capture and preserve a retestable breath

sample violated due process and rendered

the intoxilyzer results inadmissible. In

Hitch, the Supreme Court held that a law

enforcement agency conducting a chemical

test for alcohol has a duty to preserve

B-11

and disclose all material evidence which

the agency has gathered. The court held

that a due process violation occurred

when the defendant's test specimen and

test solution from a breathalyzer test

were discarded. The defendant's even-

tual attempts to utilize discovery to

verify independently the alcoholic con-

tent of the ampoule, to ascertain that

exactly three centimeters of the solu-

tion had been used, and to examine the

glass ampoule itself for any defects

which would alter the alcohol reading

were thus unfairly frustrated, (Id., at

pp. 649-650.)

The Hitch court, in considering the

admissibility of "breathalzyer" results,

determined initially that the results of

the blood alcohol test “by their very

nature constitute material evidence on

the issue of guilt or innocence upon a

charge of drunk driving." (Id., 12

B-12

Cal.3d at p. 647.) The court held that

the investigative agency involved in the

test has a duty not only to disclose such

material evidence but also to preserve

it. Accordingly, the court stated that

“where, as here, such evidence cannot be

Gisclosed because of its intentional but

nonmalicious destruction by the investi-

gative officials, sanctions shall...

be imposed for such nonpreservation and

nondisclosure unless the prosecution can

show that the governmental agencies

involved have established, enforced and

attempted in good faith to adhere to

rigorous and systematic procedures

designed to preserve the [evidence]. The

prosecution shall bear the burden of

demonstrating that such duty to preserve

the [evidence] has been fulfilled."

(Id., at pp. 652-653.) If this burden is

not met, the results of the test are to

be excluded at trial. Since the Hitch

B-13

rule implements a federal due process

Standard, (id., at pp. 645, 646) it is

unaffected by California Constitution,

article I, section 28, subdivision (d).

(See Brosnahan v. Brown (1982) 32 Cal.3d

236.)

In the present case, it is conceded

that no effort was made to capture

breath specimens for later testing by

the defense despite the availability of

the indium tube encapsulation kit.

Petitioners contend that the intoxilyzer

evidence should therefore have _ been

excluded from trial.

In denying many recent motions to

exclude intoxilyzer results, many lower

courts have relied on People v. Miller,

supra, 52 Cal.App.3d 666. In Miller,

the Court of Appeal examined “the ques-

tion [of] whether the recent decision of

the Supreme Court (People v. Hitch, 12

Cal.3d 641) should be extended to render

B-14

inadmissible the results of all chemical

tests of breath conducted by use of the

"Omicron Intoxilyzer.'* (People v.

Miller, supra, 52 Cal.App.3d at p. 668.)

The Miller court determined that "Hitch

merely holds that evidence which the

prosecution once possesses must be held.

The test by intoxilyzer ... may have

‘gathered' evidence in the sense of

Placing the breath in the chamber, but

it was not evidence of which the govern-

ment could ‘take possession.' The only

element reducible to possession was the

printout card, which has been preserved."

(Id., at pp. 669-670.) Miller may be

factually distinguished in that there, no

means had been shown by which to preserve

a breath sample; the technology has now

evolved so that such preservation is

possible by use of the indium tube

encapsulation kit. A new analysis is

therefore in order.

B-15

Here, where the evidence has already

been "collected" by the prosecution, the

question is whether the specimen may be

exhausted in testing without’ taking

available steps to obtain and preserve

another specimen for retesting.

The Colorado Supreme Court, con-

fronted with a record that was, like

ours, “replete with evidence that a

sample of the defendant's breath could

have been preserved inexpensively and

expediently" held that the “failure of

the state to collect and preserve evi-

dence, when those acts can be accom-

plished as a mere incident to a proce-

dure routinely performed by state

agents, is tantamount to suppression of

that evidence. It is incumbent upon the

state to employ regular procedures to

preserve evidence which a state agent,

in the regular performance of his

duties, could reasonably foresee "might"

B-16

be “favorable” to the accused.'" (Garcia

Vv. Dist. Court, 2lst Jud. Dist. (Colo.

1979) 589 P.2d 924, 928, 929-930.) We

are persuaded that the reasoning of the

Colorado court is sound and that the same

result should prevail in California.

In breath testing by means of the

devices presently approved for use in

California, the specimen actually tested

cannot be retained. The indium tube, an

approved device, can, however, be uti-

lized to capture a contemporanous speci-

men and preserve it for later testing.

When an intoxilyzer is used, the law

enforcement agency must employ rigorous

and systematic procedures to ensure the

preservation of the captured breath

sample, or a contemporaneous’ similar

sample, for testing by the defense unless

there is a knowing waiver of that right.

As with Ritch, however, this holding will

apply only prospectively to tests

B-17

performed after this decision has become

final with the exception that it will

also be applicable to the cases now

under review, including those not yet

tried in which the present appeals must

be dismissed.

It has been suggested that tech-

nology exists in the form of a device

called “silica gel tubes" whereby the

actual breath exhaled into the intoxi-

lyzer could be retained, (See People v.

Riggs (Colo. 1981) 635 P.2d 556, 558.)

This attachment does not, however,

appear on the list of breath testing

instruments approved for use in

California. Were this device to be

approved by the Department of Health

Services, it would, of course, provide

another alternative method of complying

with the Hitch requirements of evidence

preservation. Law enforcement agencies

are free to use their discretion to

B-18

utilize whatever devices are available to

meet this duty. Due process does not

require the use of any particular instru-

ments. It demands eimply . at where evi-

dence is collected by the state, as it is

with the intoxilyzer, the agencies must

establish and follow rigorous and system-

atic procedures to preserve the captured

evidence or its equivalent for the use of

the defendant. (People v. Hitch, supra,

12 Cal.3d at pp. 652-653.)

The Trombetta and Cox groups of

appeals are dismissed; in the Ward and

Berry proceedings, writs of habeas corpus

will issue granting new trials at which

the intoxilyzer evidence will be

excluded.

Certified for Publication.

Poche, J.

B-19

I concur:

Rattigan, Acting P.J.

peeere Vv. Wet sou Ward & Berry)

8, A ’ ’

B-20

People v. Trombetta, et al.

AOLETES, A016374, AOl?265, A017266

I concur fully in the judgment and

write separately only to emphasize that

by this decision we do not prescribe or

recommend any particular devices or pro-

cedures but hold simply that those before

us in these cases do not satisfy the due

process requirements of People v. Hitch

(1974) 12 Cal.3d 641. In each case, the

arresting officer urged the defendant to

choose the breath rather than the blood

Or urine test but failed to inform him

that as a consequence of this selection

no sample would be retained. In none did

the officer advise the driver of his

right to preservation of a breath sample

and obtain from him a waiver of that

right. The Arizona Supreme Court has

held that such a procedure is constitu-

tionally adequate. (Baca v. Smith (1979)

604 P.2d 617, 618-620.) As no driver

B-21

here gave a knowing and intelligent

waiver of his right to preservation of

evidence, that question is not reached

here. Similarly, we do not consider

here a situation in which police

establish and diligently follow rigorous

and systematic procedures for preser-

vation of samples but circumstances

beyond their control frustrate retention

of a sample in a particular instance.

As the majority opinion indicates, the

core requirement of Hitch is establish-

ment of and adherence to procedures

which ensure fairness in the admin-

istration of field tests. The responsi-

bility for designing those procedures

lies with the Legislature and with state

and local law enforcement agencies.

Christian, J.

APPENDIX C

C-1

JUDGE LAWRENCE G. ANTOLINI

Municipal Court - Department Three

Hall of Justice

600 Administration Drive

Santa Rosa, CA 95401

Telephone: (707) 527-2571

MUNCIPAL COURT FOR THE COUNTY OF SONOMA

STATE OF CALIFORNIA

THE PEOPLE OF THE STATE

OF CALIFORNIA,

Plaintiff, NO. 78532 TCR

NO. 78402 TCR

vs.

MELINDA PIERSON BERTRAM, :

ALBERT WALTER TROMBETTA, an

OTHER

MOTIONS

)

)

)

)

)

) RULING ON

) 1538.5

)

)

Defendants. )

)

The court hereby denies the 1538.5

and stipulated 402 motion in the above-

entitled cases. The court's decision is

based upon the evidence and testimony

admitted before it and also based upon

the briefs and all cases cited by both

the people and the defense. I therefore

will not be reiterating all the above

C=-2

mentioned arguments and cases. I will

comment, however, upon the most prevalent

of the many issues presented. The first

of these is a factual as well as a legal

issue that must be addressed namely

whether or not the breath sample

"collected" comes under the auspices of

the Hitch and Nation mandates. fThe art

of semantics for many years has been the

subject matter of courses taught at many

of the outstanding universities in the

world. Indeed then, the interpretation

and or interpolation of words can only be

considered to be accurate, when taken in

the light of all the surrounding circum-

stances of a particular situation. The

verb "collect" or "gather together" may

be either of a temporary or permanent

nature. It appears to this court that

from the testimony elecited and from the

evidence submitted, that at best a state

when using the 4011-W Intoxilizer unit,

C-3

temporarily collects or gathers breath

of a tested individual. The chamber

which collects this breath contains it

only for a period of time necessary to

conduct an analysis on this breath. By

the construction of the machine itself,

namely that of having two or[i)fices,

one for introduction and one for the

expulsion of the sample, it appears to

the court that the temporary control

over the breath makes the ultimate dis-

sipation and destruction of the sample

an inherent and obvious consequence of

using that particular intoxilizer unit.

The argument that the state is in

control of the breath and that by

choosing to purge the sample, destroys

it, is an argument that in the court's

opinion is reductio ad absurdum. Mr.

Murray, the defense witness, stated in

substance, that the intoxilizer collects

breath but not for later analysis and

C-4

then must be purged in order to be usable

again. Without an addition to the pres-

ent intoxilizer unit it appears to the

court that it would be impossible to

exercise permanent control resulting in

preservation of any sample. Therefore,

it would appear to the court that the

destruction of any temporarily collected

sample would not be through the actions

or efforts of the state, but rather

through the workings of the machine

itself. Therefore, the court finds the

cases of the Hitch and Nation are not

violated where the state uses the above-

described intoxilizer unit in that the

state never had permanent possession of

the sample, therefore had no election to

make since on that unit permanent reten-

tion is impossible without modifications.

The above referred to intoxilizer unit

was approved by the State of California

in 1973; further there have been

C-5

improvements upon the basic unit until

the present AW series. The court finds

that the intent of the Legislature is

therefore to accept the machine as it

exists without any attachments which

would permanently preserve the tempor-

arily collected samples of breath, since

these attachments have been available

and yet there has not been withdrawal or

qualification of the state approval of

the intoxilizer.

Addressing now the question of

whether the defendant has the right to

be advised that if she takes the breath

tests as presently given in Sonoma

County, that she will not have a sample

preserved. The court find that §13353

of the Vehicle Code and subsequent

sections are not constitutionally

guaranteed, rather they are administra-

tive policy with the immediate purpose

to obtain the best evidence of the blood

C-6

alcohol content of a person believed to

be driving while under the influence of

an alcoholic beverage. Further, the pur-

pose of the above sections are to avoid

the possible violence which could erupt

if forcible tests were made upon a recal-

catrant and belligerent inebriate in

order to obtain the best evidence.

§1219.3 of Article 5, Title 17 CAC

does not provide for a breath sample

although 1219.1 and 1219.2 provide for

the retention of blood and urine samples

respectively. It has been argued by the

defense that at the time of the regula-

tions it was not possible to retain the

breath. It appears to this court that in

the time that has passed, the Legislature

has had more than ample opportunity to

ammend this particular area of the law

and yet the Legislature has knowingly and

purposefully chosen not to mandate the

retention of breath samples.

C-7

In summary the court then finds that

the state in this case did not possess

the breath sample in the sense and or

context of the Hitch and Nation deci-

sions and further that there is no con-

stitutional requirement that defendant

be advised of the fact that only two of

the three tests have samples that are

statutorily required to be preserved.

DATED: May 7th, 1981

LAWRENCE G. ANTOLINI

UDGE OF THE NICIPAL COURT

CERTIFICATE OF SERVICE BY MAIL

CHARLES R. B. KIRK, a member of the

Bar of the United States Supreme Court,

hereby certifies that on August 22,

1983, a copy of the annexed Petition for

Certiorari was served by mail upon the

counsel of record for each of the

parties respondent by depositing a copy

in the United States Mail at the United

States Post Office in the Federal

Building, 455 Golden Gate Avenue, San

Francisco, California, with first-class

postage prepaid, and properly addressed

as follows:

JOHN F. DE MEO

1022 Mendocino Avenue

Santa Rosa, CA 95401

Attorney for Albert W. Trombetta

FREDERICK J. HALEY

1 Kaiser Plaza

Oakland, CA 94612

Attorney for Gregory M. Ward

THOMAS R. KENNEY

200 E. Street

P.O. Box 1896

Santa Rosa, CA 95402

Attorney for Michael G. Cox,

Thomas N. Muldoon, Clinton J.

Brown, Densel L. Furner,

Patricia L. Keeffe, Herbert J.

Berryessa, and James K.

Schneider

JOHN A. PETTIS

1034 Court Street

Martinez, CA 94612

Attorney for Gale B. Berry

DATED: August 22, 1983, at

San Francisco, California.