# Petition — California v. Trombetta

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 479

## Text

‘ | 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0305%3A01. Public record. Not legal advice.