Joint Appendix — California v. Trombetta

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Office - Supreme Caer Te

FILED

FEB 25

No. 83-305

Pd ee TWAS

In The CLOAW

“9

Supreme Court of the United States

October Term, 1983

“y

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

VS.

ALBERT WALTER TROMBETTA, et al.,

Respondents.

JOINT APPENDIX

va\

JOHN K. VAN DE KAMP JOHN F. DEMEO, ESQ.

Attornel General DeMeo & DeMeo and Asso-

ciates

WILLIAM D. STEIN 1022 Mendocino Avenue

Chief Assistant Attorney santa Rosa, California 95401

General—Criminal Division (707) 545-3232

GLORIA F. DE HART Attorney for Respondent

Deputy Attorney General “Albert W. ~ tear ese

CHARLES R. B. KIRK

Deputy Attorney General JOHN A. PETTIS, ESQ.

6000 State Building

San Francisco, California 94102 Levene gee Bo tl 94553

a a ttc (415) 229-0900

Attorneys for Petitioner Attorney for Respondent

Gale B. Berry

J. FREDERICK a" ESQ.

The Haley Building

1633 San Pablo Avenue Ligh a hua Patti

Oakland, California 94612 P.O. Box 1896

(415) 444-1881 Santa Rosa, California 95402

Attorney for Respondent (707) 575-7715

Gregory M. Ward

Attorney for Respondent

Michael Gene Cox, et al.

COCKLE PRINTING CO., 23:1 Douglas St, Omahs 68102

INDEX TO JOINT APPENDIX

Pages

I. RELEVANT DOCKET ENTRIES IN CALI-

FORNIA COURTS UP TO CONSOLIDATION

IN CALIFORNIA COURT OF APPEAL. .........

Il. RELEVANT PLEADINGS AND OPINIONS

(A) In Trobetta Case Before Consolidation

Request and Demand for Disclosure

and Inspection of Evidence, filed 4

March 1981 (Municipal Court) ..............

Points and Authorities in Opposition

to Defendant’s Motion for Disclosure

and Inspection of Evidence, filed 13

March 1981 (Municipal Court) ...............

Motion for Suppression as Evidence,

Motion in Limine and for Protective

Order, Points and Authorities, Sup-

porting Declarations and Offer to Stip-

ulate, filed 23 March 1981 senisitinia

Court)

Declaration of Jerry W. Curry, filed

23 March 1981 (Municipal Court) ........

Ruling on 1538.5 and Other Motions,

filed 7 May 1981 (Municipal Court) ....

Statement on Appeal, filed 11 June 1981

(Superior Court)

Decision Affirming Denial of Motion to

Suppress, filed 20 January 1982 (Su-

perior Court)

Order Denying Rehearing and Certify-

ing for Transfer to Court of Appeal,

filed 17 February 1982 (Superior

Court) . 7

Order of Transfer, filed 24 March 1982

(Court of Appeal) ...

INDEX TO JOINT APPENDIX—Continued

Pages

(B) In Cox Case Before Consolidation

Motion to Suppress Evidence, for Pro-

tective Order, Points and Authorities

and Declaration in Support Thereof,

filed 8 April 1981 (Municipal Court) —.

Declaration of Defendant Michael Gene

Cox in Support of Motion to Suppress,

filed 9 April 1981 (Municipal Court) .....

Declaration of Defendant Michael Gene

Cox in Support of Motion to Suppress,

filed 19 May 1981 (Municipal Court) ....

Supplemental Points and Authorities

in Support of Defendant’s Motion to

Suppress yeas filed June 25, 1981

(Municipal Court) . scsi

Proposed Settled iesathis of : Fests,

filed 31 August 1981 (Municipal Court)

Declaration of Jerry W. Curry, filed 16

October 1981 (Superior Court) .............

Decision Denying Motion to Suppress,

filed 20 January 1982 (Superior Court)

Petition for Rehearing and Applica-

tion for Certification, filed 9 February

1982 (Superior Court)

Order Denying Rehearing and Certify-

ing for Transfer to Court of Appeal,

filed 25 February 1982 es

Court) sin

Motion for Pre-Trial Discovery, Alter-

native Motion to Exclude Results of

Intoxilyzer Test, filed 26 February 1980

(Municipal Court) ......

ITT,

IV.

ili

INDEX TO JOINT APPENDIX—Continued

Pages

2. Order Affirming Convictions, filed 4

December 1981 (Superior Court) ......... 108

3. Letter to Mr. Haley from Clerk, dated

14 May 1982 (Court of Appeal) 0... 110

(D) In Berry Case Before Consolidation

1, Motion for Discovery, filed 5 Septem-

ber 1980 (Municipal Court) 00000000000. 113

2. Motion to Exelude Results of Intoxi-

lyzer Test, filed 20 November 1980

(Municipal Court) .. picpinaibeisdiasitiiciins “I

3. Traverse/Denial to Return to Order to

Show Cause, filed 18 June 1982 (Court

ge, RR alo a ee ee . 126

(E) In Consolidated Case on Appeal

1. Traverse/Denial to Return to Order to

Show Cause L \alandaed filed 17 June

1982 . Per: aniebbihchiiniete adceaheinitcielcacneddas”

‘ oui filed 28 March 1983 00. 137

3. Letter to Clerk from Mr. De Bure

dated 4 April 1983 . fae . 148

DECISION IN QUESTION 150

OTHER PARTS OF RECORD IN TROM-

BETTA CASE

A. Transcript of Hearing in Municipal Court be-

fore Honorable Lawrence G. Antolini, April

30, 1981 162

B. Declaration of Jerry W. Curry [Hearing Ex-

hibit A)

C. Declaration of Albert W. Trombetta li

ing Exhibit C}

INDEX TO JOINT APPENDIX—Continued

Pages

D. Title 17, California Administrative Code,

Forensic Alcohol Analysis [Hearing Exhibit

i} pee ssdilaapdeinsldacetpapnacsedaia si eMistatsn bts 207

E. List of Instruments and Accessories Ap-

proved for Alcohol] Analysis in California

{Hearing Exhibit FE) ..... a wpe 238

F. Colorado Department of Health, “Notice of

Final Adoption—Rules and Regulations Re-

lating to Chemical Tests for Blood Alcohol

Implied Consent Law and Statutory Implied

Consent Statutes [Hearing Exhibit F] ....... 258

RELEVANT DOCKET ENTRIES IN CALIFORNIA

COURTS UP TO CONSOLIDATION IN

CALIFORNIA COURT OF APPEAL

The People of the State of California

vy. Albert Walter Trombetta

Sonoma County Municipal Court No. 78532 TCR

Sonoma County Superior Court No. 209-C

Court of Appeal (1st App. Dist., Div. 4) No. A016358

Sonoma County Municipal Court No. 78532 TCR

2 Feb 1981 Complaint Filed

11 Feb 1981 Plea Entered, “Not Guilty”

4 Mar 1981 Request & Demand for Disclosure &

Inspection of Evidence Filed

23 Mar 1981 Motion for Suppression as Evidence,

Motion in Limine, and for Protective

Order Filed

30 Mar 1981 Evidentiary Hearing [before Antolini]

7 May 1981 Ruling Denying 1538.5 and Other Motions

2 Jun 1981 Notice of Appeal Filed

Sonoma County Superior Court No. 209-C

20 Jan 1982 Decision Denying Motion to Suppress

26 Jan 1982 Petition for Rehearing and Application

for Certification Filed

17 Feb 1982 Order Denying Rehearing and

Certifying for Transfer to Court of Appeal

Court of Appeal (1st App. Dist., Div. 4) No. A016358

24 Mar 1982 Appeal Transferred

The People of the State of California

v. Michael Gene Cox

Sonoma County Municipal Court No. 77262 TCR

Sonoma County Superior Court No. 215-3

Court of Appeal (1st App. Dist., Div. 4) No. A016374

Sonoma County Municipal Court No. 77262 TCR

22 Dee 1980 Complaint Filed

11 Feb 1981 Plea Entered, “Not Guilty”

13 Apr 1981 Motion to Suppress Evidence, for

Protective Order, Points & Authorities &

Declarations in Support Thereof Filed

19 May 1981 Declaration of Michael Gene Cox in

Support of Motion to Suppress Filed

25 Jun 1981 Supplemental Points & Authorities in

Support of Defendant’s Motion to

Suppress Filed

10 Jul 1981 Motion Denied

30 Jul 1981 Notice of Appeal and Stipulation

[Trombetta Hearing Applies] Filed

Sonoma County Superior Court No. 215-3

20 Jan 1982 Decision Denying Motion to Suppress

9 Feb 1982 Petition for Rehearing and Application

for Certification Filed

25 Feb 1982 Order Denying Rehearing and

Certifying for Transfer to

Court of Appeal

Court of Appeal (1st App. Dist., Div. 4) No. A013674

24 Mar 1982 Appeal Transferred

The People of the State of California

v. Gregory Moller Ward

Contra Costa County Municipal Court

(Walnut Creek-Danville) No. 31381-7

Contra Costa County Municipal Court

(Walnut Creek-Danville) No. 32153-9

Contra Costa County Superior Court

Nos. 25717 & 25718 (Consolidated)

Court of Appeal (1st App. Dist., Div. 3) 1/Crim. No. 23780

Supreme Court Crim. No. 22560

Court of Appeal (1st App. Dist., Div. 4) No. A017265

Contra Costa County Municipal Court

(Walnut Creek-Danville) No. 31381-7

24 Jul 1980 Complaint Filed

13 Aug 1980 Plea Entered, “Not Guilty”

26 Feb 1981 Motion for Pre-Trial Discovery and

Alternative Motion to Exclude Results

of Intoxilyzer Filed

9 Jun 1981 Motion to Suppress Denied

Case Submitted on Police Report

Found Guilty

9 Jul 1981 Sentenced: 18 months probation, $355 fine,

$108 penalty, must participate in Drinking

Driver Program

21 Jul 1981 Notice of Appeal Filed

Contra Costa County Municipal Court

(Walnut Creek-Danville) No. 32153-9

9 Oct 1980 Complaint Filed

20 Oct 1980 Plea Entered, “Not Guilty”

18 Feb 1981 Motion for Pre-Trial Discovery and

Alternative Motion to Exclude Results of

Intoxilyzer Test Filed

9 Jun 1981 Motion to Suppress Denied

Case Submitted on Police Report

Found Guilty

9 Jul 1981 Sentenced: 18 months probation, 48 hours

county jail, $355 fine, $108 penalty, must

participate in Drinking Driver Program

21 Jul 1981 Notice of Appeal Filed

Contra Costa County Superior Court

Nos. 25717 & 25718 (Consolidated)

4 Dee 1981 Order of Conviction Affirmed, Certified to

Court of Appeal

Court of Appeal (1st App. Dist., Div. 3) 1/Crim. No. 23780

30 Dee 1981 Certification Denied

Supreme Court Crim. No. 22560

9 Apr 1982 Habeas Corpus Petition Filed

28 Apr 1982 Order to Show Cause Issued; Returnable in

Court of Appeal, Division 4

The People of the State of California

v. Gale Bernell Berry

Contra Costa County Municipal Court

(Walnut Creek-Danville) No. 29684-8

Contra Costa County Superior Court No. 25592

Court of Appeal (lst App. Dist., Div. 3) 1/Crim. No. 23780

Supreme Court Crim. No. 22517

Court of Appeal (1st App. Dist., Div. 4) No. A017266

Contra Costa County Municipal Court

(Walnut Creek-Danville) No. 29684-8

4 Feb 1980 Complaint Filed

20 Mar 1980 Plea Entered, “Not Guilty”

5 Sep 1980 Motion for Discovery, Memorandum of

Points & Authorities in Support of Motion

for Discovery, Declaration in Support of

Motion for Discovery Filed

20 Nov 1980 Motion to Exclude Results of an Intoxilyzer

Test & Points & Authorities in Support Filed

28 Apr 1981 Motion to Suppress Denied

Case Submitted on Police Report

Found Guilty

19 May 1981 Notice of Appeal Filed

Contra Costa County Superior Court No. 25592

4 Dec 1981 Order of Conviction Affirmed; Certified

to Court of Appeal

Court of Appeal (1st App. Dist., Div. 3) 1/Crim. No. 23780

30 Dee 1981 Certification Denied

28 Apr 1982 Order to Show Cause Issued; Returnable

in Court of Appeal, Division 4

DEMEO & DEMEO

Demeo Building - 1022 Mendocino Avenue

Santa Rosa, Celifornia 95401

(707) 545-3232

Attorneys for Defendant

MUNICIPAL COURT OF CALIFORNIA, COUNTY

OF SONOMA

No, 78532 TCR

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiffs,

ALBERT WALTER TROMBETTA,

Defendant.

REQUEST AND DEMAND FOR DISCLOSURE

AND INSPECTION OF EVIDENCE

(Filed March 4, 1981)

To GENE L. TUNNEY, District Attorney of Sonoma

County, California:

ALBERT WALTER TROMBETTA, Defendant here-

in, respectfully requests and demands that you disclose

to Defendant or his counsel, and permit them, or either of

them, to inspect, copy, hear, examine, and analyze, not

later than March 16, 1981, any and all evidence favorable

to said Defendant or relevant or material to the guilt,

innocence, or punishment of said Defendant, known to you

or which by the exercise of due diligence should be known

to you, and which is or are in your possession, custody,

or control or accessible to you or other law enforcement

officers or persons from you can obtain same.

The items so requested to be disclosed and inspected,

copied, heard, and examined include, but are not limited

to, the following:

See Exhibit ‘‘A’’ attached hereto and made a part

hereof.

This request and demand shall be deemed continuing

so as to require you to supply any further evidence rel-

evant or material to Defendant’s guilt, innocence, punish-

ment and items of a like nature as requested above, be-

tween the time you comply with this request and demand

until any sentence may be imposed on Defendant in this

proceeding.

If you do not comply with this request by the above-

stated time, a motion will be made to compel compliance

with this request and demand and for sanctions to be

imposed for non-compliance.

This request and demand is made pursuant to Brady

v. Maryland (1963) 373 US 83, 83 S.CT. 1194, 10 LEd2d

215, and other related cases, Joe Z. v. Superior Court

(1970) 3 C3d 797, 91 CR 594, 478 P2d 26, In re Ferguson

(1971) 5 C3d 525, 96 CR 594, 487 P2d 1234, People v.

Hitch (1974) 12C3d 641 and other pertinent cases.

Dated: March 4, 1981.

DEMEO & DEMEO

/3/ JOHN F. DEMEO

Attorney for Requesting

Defendant

People v. Trombetta

EXHIBIT ‘‘A’’

l. Arrest Investigation Report;

2. Results of breath test given to determine alcoholic

content in the blood of Defendant, including the read-out

print documenting the results thereof;

3. Any and all breath samples of Defendant taken

at or about the time the breath test was administered to

Defendant at the Sonoma County Jail on January 31,

1981;

4. All test ampules containing breath samples of

Defendant taken at or about the time the breath test was

administered on Defendant at the Sonoma County Jail

on January 31, 1981;

5. All simulator samples and solutions and com-

pounds used to calibrate the subject intoxilyzer machine

used by the County of Sonoma, on January 31, 1981;

6. All simulator samples and solutions and com-

pounds used to calibrate the intoxilyzer machine used by

the County of Sonoma, on January 31, 1981, January 30,

1981, and January 29, 1981;

7. Any and all records, documents, correspondence,

repair orders, and memorandum regarding the mainte-

nance, repairs and calibration of the intoxilyzer machine

used by the County of Sonoma to render the breath test

to Defendant, for the period November 1, 1980, through

January 31, 1981.

GENE L. TUNNEY, DISTRICT ATTORNEY

County of Sonoma

212J Hall of Justice

P.O. Box 1964

Santa Rosa, CA 95402

(707) 527-2311

JAMES T. LEE, Deputy

Attorney for The People

MUNICIPAL COURT OF THE STATE OF

CALIFORNIA, COUNTY OF SONOMA

COURT NO. 78532 TCR

D.A. NO. 40261

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

vs.

ALBERT WALTER TROMBETTA,

Defendant(s).

POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANT’S MOTION FOR DISCLOSURE AND

INSPECTION OF EVIDENCE.

(3/18/81 9:30 a.m. No.4)

(Filed March 13, 1981)

INTRODUCTION

All legally discoverable files, notes and memorandum

within the District Attorney's files have been in the past,

and are always now, open to the inspection of each de-

fense counsel in this matter who has in fact declared him-

self to be the general counsel of said defendant. All items

in physical evidence now in the possession or under the

control of the District Attorney’s Office are open for

inspection during office hours and arranged as mutually

convenient by the attorneys. Therefore, the People do

not oppose discovery relative to requests made, except

as stated herein.

The subjects of the defendant’s requests No. 3 and

No. 4 are nonexistent. When dealing with the Omicron

Intoxilyzer, neither the breath samples nor test ampules

are retrievable. Requests No. 5 and No. 6 should be lim-

ited to the available records of the County Crime Lab.

Request No. 7 is unduly burdensome and should be limited

to the available records, one week prior to the test and

two weeks subsequent.

ARGUMENT

The defendant may not seek discovery indiscrimin-

ately. He must show that it is useful or relevant to his

ease. Kelvin L. v. Superior Court (1976) 62 Cal.App.3d

823; Cadena v. Superior Court (1978) 79 Cal.App.3d 212.

Here the subject matter which the defendant seeks is

nonexistent in requests No. 3 and No. 4. The validity of

the use of the Omicron Intoxilyzer and the inability to

produce such samples was upheld in People v. Miller 52

Cal. App.3d 666.

The only element reducible to possession was the

printout card, which has been preserved. The ma-

chine itself remains available. It and the frequent

testings required by regulations of the Department of

Health are available for discovery and possible im-

peachment .. . 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. Substantial nwubers of the intoxilyzer have

been purchased by the State Department of Justice

and by many counties. People v. Miller (supra) at

page 670.

Requests No. 5 and No. 6 are overly burdensome. The

defendant seeks the actual samples, when the results of

tests on these samples are readily available. The extent

of a motion for discovery by a defendant rests in the

sound discretion of the trial court, which may order dis-

covery in the interests of justice. Hil v. Superior Court

(1974) 10 Cal.8d 812. The People make available all

records pertaining to the samples requested. There are

actual test results concerning these samples. These tests

measure the quality of the samples against their legal

requirements. These are available; the defendant has

shown no need for further testing!

Request No. 7 seeks production of an unreasonable

long period of records. A three month period is far be-

yond the material necessary. The People now, as always,

make available the maintenance and calibration records

for the period one week preceeding and two weeks subse-

quent to the subject test. Here again the People rely

on the discretion of the trial court as stated in Hill (su-

pra). The above-mentioned records are available as a

matter of standard procedure. The defendant’s request

goes beyond a feasible limit.

The People request that the defendant’s motion be

limited to the standards recited herein.

DATED: March, 1981.

Respectfully submitted,

GENE L. TUNNEY,

DISTRICT ATTORNEY

/s/ James T. Lee

Deputy District Attorney

DEMEO & DEMEO

DeMeo Building, 1022 Mendocino Avenue

Santa Rosa, California 95401 ae

(707) 545-3232

Attorneys for Defendant

MUNICIPAL COURT OF CALIFORNIA,

COUNTY OF SONOMA

No. 78532 TCR

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiffs,

vs.

ALBERT WALTER TROMBETTA,

Defendants.

NOTICE OF MOTION FOR SUPPRESSION AS EVI-

DENCE, MOTION IN LIMINE AND FOR PROTEC-

TIVE ORDER, POINTS AND AUTHORITIES, SUP-

PORTING DECLARATIONS AND OFFER TO

STIPULATE.

Date of Hearing: March 26, 1081

Time: 9:00 a.m., Department 3

(Filed March 23, 1981)

TO GENE L. TUNNEY, District Attorney of Sonoma

County, State of California:

Please take notice that on March 26, 1981 at 9:30

o’clock a.m., or as soon thereafter as the matter can be

heard, at the courtroom of Department No. 3 of the above

entitled Court, at the Hall of Justice in the City of Santa

Rosa, County of Sonoma, State of California, pursuant to

Section 1538.5 of the Penal Code of the State of California

and pursuant to all other provisions of law, defendant will,

and does hereby, move the Court for an order directing

that the test results of the Intoxilyzer breath test of de-

fendant be suppressed as evidence against defendant in

any further proceedings herein.

This motion is made on the grounds that:

1. The failure to provide the defendant with a test-

able sample of his breath is discriminatory and is a denial

of due process of law in contravention of the Fourth, Fifth

and Fourteenth Amendments to the United States Con-

stitution and Article I, Sections 7 and 13 of the California

Constitution.

2. That the failure to advise defendant that there

would be no breath sample preserved as evidence and/or

for retesting is discriminatory and is a denial of due pro-

cess of law in contravention of the Fourth, Fifth and

Fourteenth Amendments to the United States Constitution

and Article I, Sections 7 and 13 of the California

Constitution.

3. That the failure to preserve the simulator samples

and solutions and compounds used to calibrate the In-

toxilyzer machine used by the County of Sonoma on

January 31, 1981, before the defendant was administered

the test, is discrimnatory, and is a denial of due process of

law in contravention of the Fourth, Fifth and Fourteenth

Amendments to the United States Constitution and Article

I, Sections 7 and 13 of the California Constitution.

This motion is based on this notice, the pleadings,

records, and files in this proceeding, the attached memo-

randum of points and authorities, and the attached sup-

porting declarations of ALBERT WALTER TROM-

BETTA and JERRY W. CURRY and any other oral or

written evidence and declarations that may hereinafter be

offered herein, and the Offer to Stipulate.

DATED: March 20, 1981.

DeMEO & DeMEO

/s/ JOHN F. DeMEO

Attorneys for Defendant

ALBERT WALTER

TROMBETTA

(Caption Omitted)

POINTS AND AUTHORITIES IN SUPPORT OF

MOTION TO SUPPRESS, MOTION IN LIMINE AND

FOR PROTECTIVE ORDER

INTRODUCTION

In this case, which charges defendant with a violation

of a major misdemeanor with severe consequences if con-

victed, the people have conceded in a document entitled

“Points and Authorities in Opposition to Defendant’s

Motion for Disclosure and Inspection of Evidence” filed on

March 13, 1981, that they have no breath samples of de-

fendant nor do they have test ampoules containing samples

of defendant’s breath, and apparently do not have simula-

tor samples used to calibrate the Intoxilyzer machine,

although defendant submitted to a breath test on his

arrest on January 31,1981. Defendant has no opportunity

therefore to retest the prosecution’s chemical analysis.

The gist of this Motion to Suppress, Motion in Limine

and for Protective Order is, that since the legislature

requires the preservation of blood and urine samples for

retesting should the defendant request same, the failure

to similarly require preservation of and/or the actual

failure of law enforcement to preserve a breath sample

for retesting is discriminatory, denies equal protection of

law and denies due process of law, thereby denying a fair

trial to a defendant, accused of driving while under the

influence of intoxicating liquor in alleged violation of

Section 23102 (a) of the Vehicle Code, unless the breath

test results are suppressed.

Further, that the failure to advise a defedant who

has chosen to take a breath test, before the test is ad-

ministered, that no breath test sample is being preserved

for retesting, so as to allow him to either waive the preser-

vation of a sample of his breath, or to allow him a true and

informed choice of a blood or urine test in lieu of a breath

test, is likewise discriminatory and denies such a defend-

ant equal protection and due process of law unless the

results of said test are suppressed.

THE WITHIN MOTION IS FOUNDED NOT ONLY

ON PENAL CODE SECTION 1538.5 BUT ALSO

SAID MOTION IS SANCTIONED BY THE COM-

MON LAW,

The very recent case of People vs. Superior Court

(Scott) (1980) 112 C.A. 3d 602, clearly sanctions a com-

mon law pre-trial motion to suppress. Thus, the moving

party herein has several alternative bases for this motion,

i.e. Penal Code Section 1538.5 and the common law sup-

pression motion. In addition, Section 352 of the Evidence

Code gives this honorable Court wide latitude in the exer-

cise of diseretion to exclude evidence,

TWO LANDMARK DECISIONS OF THE CALI-

FORNIA SUPREME COURT REQUIRE THE

SUPPRESSION OF THE RESULTS OF THE

BREATH TEST IN THi* CASE,

In People vs. Hitch (1974) 12 C. 3d 641, the California

Supreme Court held that where the test ampoule and

reference ampoule and bubbler tube of a Breathalyzer test

taken of the defendant in a case charging violation of

Vehiele Code Section 23102(a), were discarded, the result

of the test would be excluded from evidence, “. . . 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 test ampoule and its contents and

the reference ampoule used in such chemical test. The

prosecution shall bear the burden of demonstrating that

such a duty to preserve the ampoules and their contents

has been fulfilled.” (at Page 652-653) (Emphasis supplied)

Hitch (supra) goes on to hold that a failure to meet

that burden requires the results of the test to be excluded

from evidence.

In the case at bar there was no effort, no intention to

collect, or any attempt to collect breath samples of defend-

ant for preservation for retesting, nor was there any effort

to retain the simulator samples and/or solutions and com-

pounds used to calibrate the subject Intoxilyzer machine

used by the County of Sonoma on January 31, 1981 prior

to testing this defendant on that same date. Also, no

attempt or effort was made to advise defendant that no

sample of his breath was being retained and thus as a

result of these failures the spirit of Hitch (supra) has been

violated and thereby dictates suppression of the test and

its results,

The second of the landmark decisions by the California

Supreme Court which compels suppression of the breath

test results herein is People vs, Nation, (1980) 26 Cal.3d

169, which made the following rulings and clarifications of

Hitch (supra):

1, “Yet it is well established that the suppression

by the State of evidence favorable to an accused after

a request therefor, violates due process, irrespective

of the good faith of the proseeution Brady vs. Mary-

land (1963) 373 U.S, 83, 87, (10 L, Ed, 2d 215, 218, 83

8. Ct. 1194],).” At page 175,

2. “In People vs. Hitch (174) 12 Cal. 3d 641, 650

[117 Cal. Rptr. 9, 527 P. 2d 361], we held that the ob-

ligation to disclose the existence of material evidence

places on the state a correlative duty to preserve

such evidence even without a request therefor, and

directed that in the future law enforcement agencies

take reasonable measures to ensure its adequate

preservation.” (Emphasis supplied)

Foot Note 1. “The present case is typical of the

problem covered by /Zitch, in that defendant here was

not charged at the time the police physician obtained

the semen sample. Jf a request were a condition to

the duty to preserve, the duty might not arise until it

became impossible of performance.” At page 175.

(Emphasis supplied)

3. “As in Hitch, we are not in a position to

examine the suppressed evidence to decide whether or

not it is material. However, evidence lost to the

defense because of its destruction by the authorities

will be deemed material for the purpose of triggering

the due process concerns of Hitch if there is a reason-

able possibility that it would be favorable to the de-

fendant on the issue of guilt or innocence. (12 Cal. 3d

at P, 649.) Contrary to the prosteeution’s conten-

tion, the rationale of Hitch is thus not limited to cir-

cumstances in which the destroyed evidence proves a

necessary element of the erime.” At Page 176.

(Emphasis supplied)

Nation (supra) imposes a duty to preserve any body

fluid, body vapor, or other substance taken from a de-,

fendant, for retesting purposes, for the obvious reason that

the preservation would admit of retesting by an accused

defendant’s own experts, The results of such retesting

could be used to impeach the prosecutions witnesses and

could possibly completely exonerate the defendant.

In the instant case the prosecution took the breath

sample and although it could have inexpensively preserved

a sample for retesting, 1! did not do so and the defendant

was not informed that no sample would be preserved and

the defendant thereby lost any opportunity to counter the

devastating evidence of the results of the breath test

which under the Vehicle Code would give rise to a pre-

sumption of guilt of the charge of 23102(a), if the result

of the test is at or exceeds a reading of .10 percent by

weight of aleohol in the person’s blood. The results of

the tests in this case trigger the presumption of guilt. The

results of the tests herein were .18, .19.

The failure to collect a sample of breath for retesting,

makes it legally impossible for this defendant to rebut the

presumption created by law that he was guilty. Yet, had

defendant chosen a blood or urine test, the law requires

the preservation of a sample for retesting. This is blatant

discriminatory legislation on its face. There can be no

reasonable or rational distinction between the blood, urine

and breath tests, and why samples for retesting are re-

quired in two of the three tests available to a defendant,

but not for the breath test.

The chemical analysis of any of the three tests gives

rise to the same presumptions under Vehicle Code Section

23126 and therefore that which is fair as to two of the tests

must apply to all to escape constitutional infirmity.

As will be seen by the evidence to be presented on this

motion, the state of the art was, at the time of defendant's

arrest, and had been for several years, that samples of a

defendant’s breath, taken at the time a blood alcohol

breath test is given, can be preserved and can be so pre-

served at a nominal cost, In fact the cost of taking breath

samples for retesting is less costly than is required to

preserve urine or blood samples for retesting.

In fact, in this very county, prior to the advent of the

State crime lab concept, certain law enforcement agencies

had followed the procedure of collection of samples of

breath for submission for testing by a private contractor

lab and for retesting at the defendant's behest.

THE EVIDENCE WILL SHOW THAT THE

STATE DEPARTMENT O FHEALTH SERVICES

HAD APPROVED AN INEXPENSIVE, EASY TO

OPERATE UNCOMPLICATED INSTRUMENT IN

1973 WHICH WAS AND IS DESIGNED FOR USE

INDEPENDENTLY OF ANY OTHER MACHINE,

FOR BREATH ALCOHOL COLLECTION AND

ANALSIS, WHICH MACHINE ALLOWED THE

COLLECTION OF SAMPLES FOR LATER TEST-

ING AND ANALYSIS.

Section 1221.3(¢) of the Regulations relating to

Forensic Aleohol Analysis and Breath Aleohol Analysis,

contained in Title 17 of the California Admunistrative

Code provides that only such instruments as have been

approved by the California State Department of Health

Services shall be used for breath alcohol analysis in this

State.

As early as 1973 the California State Department of

Health Services approved a device known as an “Intoxi-

meter Field Crimper — Indium Tube Encapsulation Kit.”

The device allows the collection of breath samples for

breath alcohol analysis at a later time than the time of

collection,

This device was, is, and has been available at a reason-

able cost for several years. It is simple to operate and

would give a defendant the Constitutional right he or she

may be entitled to, to wit: retesting.

There are other simple, inexpensive methods which

would allow the taking of samples of a persons breath for

later breath alcohol analysis which can be used in conjune-

tion with the Intoxilyzer machine used by the County of

Sonoma.

The evidence will amply illustrate that the samples

collected by several available means can be tested at a

subsequent time and that the results of the later tests are

reliable.

THE PROSECUTION IN SONOMA COUNTY HAS

IN EFFECT “SUPPRESSED” MATERIAL EVI-

DENCE BY ITS FAILURE TO PRESERVE

BREATH SAMPLES FOR LATER ANALYSIS.

It is axiomatic that samples of blood, breath, or urine,

are material to the proof of drunk driving charges. As

pointed out hereinabove certain presumptions arise at cer-

tain blood alcohol levels. (See Vehicle Code § 23126).

The test results, if admissible, trigger certain presump-

tions relating to guilt.

When one looks at simple analogies it becomes ob-

vious that the failure to preserve breath samples is tanta-

mount to supression of evidence by law enforcement, which

is, contrary to concepts of due process or as others have

spoken of it, contrary to fair play

Take the following three examples:

1, Let us suppose that a bullet is removed from a

murder victim, analyzed by the governmental crime lab for

the purpose of connecting it up to the defendant’s gun and

then thrown away or destroyed before defendant can have

it analyzed.

2. Suppose again that fingerprints found at a burg-

lary scene are rotied and put on a ecard, analyzed and com-

pared with defendants and after comparison the card is

thrown away before the defendant has an opportunity to

have. them analyzed.

3. Suppose that a defendant is accused of murder by

poison and the liquid is retrieved and analyzed and found

by the prosecution to be poison and the substance is thrown

away before allowing an analysis by the defendant.

In each of the above situations, one can readily say

the defendant has been denied due process. Hitch (supra)

and Nation (supra) tell us that there is something in-

herently unfair and wrong about the non-preservation of

material evidence.

In the instant case, law enforcement has deliberately,

consciously, and voluntarily chosen to conduct their own

breath test on an Intoxilyzer, knowing that it does not

preserve the breath sample taken and in spite of this

knowledge has made no effort, although easy and iner-

pensive to do so, to preserve breath samples for retesting.

It is inherently wrong, unfair and patently and facially

unconstitutional to allow the prosecution to use the results

of a test performed on body fluid or vapor to trigger cer-

tain presumptions of guilt without the most basic of safe-

guards, viz, the preservation of a sample of that fluid or

vapor for retesting by defendant to verify or refute the

test results contended for by the prosecution.

The evidence will show in this case that the Intoxilyzer

machine used by the prosecution to perform the breath

test in this case is far from foolproof. It is woefully non-

specific, i.e, reacts false positively to a number of sub-

stances which are not ethanol. The Intoxilyzer can also

be inadvertently or advertently tampered with, and can be

improperly calibrated, all of which shortcomings are the

fundamental and basic reasons why the test results on

such a machine must be suppressed in the absence of a

retestable preserved breath sample.

THE HONORABLE JOSEPH R. LONGACRF, JR.,

JUDGE OF THE MUNICIAL COURT OF CONTRA

COSTA COUNTY HAS RULED THAT THE FAIL-

URE TO PROVIDE THE DEFENDANT WITH A

SAMPLE OF HIS BREATH FOR PURPOSES OF

RETESTING AS IS DONE IN THE CASE OF

BLOOD AND URINE, DISCRIMINATES AND

DENIES THE DEFENDANT A FAIR TRIAL

PREVENTING HIM FROM ENJOYING THE DUE

PROCESS OF LAW HE IS GUARANTEED.

Although this Court is not bound by another Municipal

Court Judge’s decision, it is submitted that Judge Long-

acre’s decision is what Hitch (supra) and Nation (supra)

are all about.

A complete copy of Judge Longacre’s decision is

marked Exhibit “A” and is attached hereto for the con-

venience of the Court and counsel. It is patently clear

that Judge Longacre’s analysis of the problem presented

herein is a sound one and his decision should be foilowed.

That another trial judge’s opinion may be properly

cited to a Court in an unrelated case for its persuasive

value is axiomatic. See 6 Witkin California Procedure

(1971) Section 659, 4574-4575.

THE SUPREME COURT OF COLORADO RELY-

ING ON PEOPLE V. HITCH (SUPRA) HAS COR-

RECTLY RULED 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 IF THAT TEST IS TO BE

USED AS EVIDENCE.

In the case of Garcia vs. The District Court (1979)

589 P.2d 924 the Colorado Supreme Court had before it

the precise question posed in the instant case. Colorado

has a statutory scheme identical to that in California, in

that the same chemical tests are available to a defendant;

the identical presumptions apply given certain levels of

alcohol in the blood as analyzed by blood, urine or breath

tests and the regulations pertinent to chemical analysis

provided for preservation of blood and urine samples for

the defendant but did not provide for preservation of

breath samples.

In Garcia (supra) as here no breath sample was pre-

served and the simulator samples were unavailable. There,

as here, there was no requirement to retain breath samples

under Colorado State Board of Health Regulations, but

there was such a requirement as to blood and urine.

The full text of the Garcia (supra) case is attached

hereto marked Exhibit “B” and made a part hereof by

reference.

Several holdings were made by the Colorado Court

which it is respectfully submitted apply to this case. They

are as follows:

1. “Preservation of the blood, urine, or breath which

formed the basis for the conclusion that a person was

operating a vehicle while under the influence of intoxica-

ting liquors is essential in view of the presumption that

arises from the test.” At Page 926;

2. “. .. procedures exist wh permit the preserva-

tion of a Breathalyzer sample for use by the defense.” At

Page 926;

3. “The breath samples requested by the defendants

are obviously material to the proof of the drunk driving

charges.” At Page 929;

4. “It is not necessary for a defendant to demon-

strate that the evidence he seeks to discover, but which is

no longer available for examination by the Court, would

have been favorable to him, People vs. Harmes 38 Colo.

App. 378, 560 P. 2d 470 (1976), so long as that evidence is

not merely ‘incidental’ to the prosecution’s case or to the

defendant’s affirmative defense. People vs. Bynum, 192

Colo. 60, 556 P.2d 469 (1976). It is sufficient that the

material requested ‘might’ be ‘favorable’ to the accused.’

United States vs. Bryant, 142 U.S. App. D.C. 132, 142 N.

21, 439 F. 2d 642, 652 N. 21 (D.C. Cir. 1971).” At Page 929.

5. “The failure of the State to collect and preserve

evidence, when those acts can be accomplished as a mere

incident to a procedure 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 be’ ‘favorable’ to the accused.” At Pages 929-930.

(Emphasis supplied)

Basically, Garcia (supra) holds as does Hitch (supra)

and Nation (supra).

In California, (like Colorado), Vehic’e Code Section

23126 imposes certain presumptions based upon chemical

analysis of blood or urine or breath. Absolutely no dits-

tinction is made as to the presumption which comes into

play based upon the type of test taken by a defendant.

California Vehicle Code Section 13353 gives the per-

son arrested the absolute right to have a blood, breath or

urine test and he is required to be advised of his choice

by law enforecment.

The refusal to submit to a test results in a suspension

of ones driver’s license for a period of 6 months.

The very language of California Vehicle Code Section

13354 allows the person submitting to one of the three tests

to have a retest. The obvious intent of the legislature is

to have a sample available for retest, otherwise there can

be no retest and the statute would be meaningless.

There can be no freedom of choice unless the defend-

ant is informed that if he chooses the breath test, no

sample will be preserved. He must be given the right to

choose any of the tests that will preserve to him the right

to retest. Otherwise, he has not given and informed con-

sent nor has he had a free choice knowing all the facts, and

in such case the results of the test must be suppressed in

fairness. It can be properly argued that an unreasonable

search and seizure has been made of defendant's person

and body vapor when he was not properly informed and

advised by law enforcement.

Title 17, Sections 1219 thrqugh \ 1219.3 only require

blood and urine samples to be maintained for analysis by

the defendant. Thus, a defendant choosing a breath test

is denied equal protection for no rational reason.

Perhaps, at the time the Administrative Code Regu-

lations were adopted, there was no approved method of

collecting breath samples. Such has not however been

the case since 1973 as pointed out at an earlier point in this

memorandum.

THE DISCRIMINATORY LEGISLATION (LE.

STATE ACTION), FOUND IN TITLE 17

WHEREIN IT REQUIRES PRESERVATION OF

BLOOD AND URINE BUT NOT BREATH IS A

LAW SCHOOL CLASSIC EXAMPLE OF A VIO-

LATION OF EQUAL PROTECTION.

In Reed vs. Reed (1971) 404 U.S. 71, 92 S. Ct. 251, our

United States Supreme Court said:

“The Equal Protection clause ... den(ies) to

states the power to legislate that different treatment

be accorded to persons placed by a statute into dif-

ferent classes on the basis of criteria wholly unrelated

to the objective of that statute. A classification

‘must be reasonable, not arbitrary, and must rest upon

some ground of difference having a fair and sub-

stantial relation to the object of the legislation, so

that all persons similarly cireumstanced shall be

treated alike’” quoted in Brown vs. Merlo (1973) 8 C

3d 855, 861.

In applying Reed (supra) to the instant case, it is

obvious that one group of individuals who choose a breath

test as opposed to a blood or urine test, are given a dif-

ferent rteatment as to their right to a body sample for

retesting even though the body sample in question,

(breath) is just as vital to the ease as blood or urine

samples and in spite of the fact that the breath can be

easily and inexpensively preserved for retesting.

It is difficult to conceive how any sound thinking per-

son can argue against the fact that a defendant taking a

breath test is denied equal protection where no sample is

preserved.

It is neither reasonable nor consistent for law en-

forcement to ignore the fact that science has had an

approved, reasonable, simple, inexpensive way to preserve

breath samples for retesting, at least since 1973. Law

enforcement cannct be allowed to defend their laxity in

preserving breath samples on the basis that Title 17

“doesn’t require it.”

Vehicle Code Section 13354(c) which provides that:

“Upon the request of the person tested full in-

formation concerning the test taken at the direction

of the peace officer shall be made available to him or

his attorney”, can be read to override Title 17.

This section certainly can be read to intend that “full”

information including breath samples be made available to

a defendant. Otherwise, the section has little or no mean-

ing.

PEOPLE VS. MILLER IS INAPPLICABLE TO

THE ISSUES IN THIS CASE BY ITS OWN

LANGUAGE.

The prosecution will undoubtedly argue that People

vs. Miller (1975) 52 Cal. App. 3d 666, upholds the use of

the Intoxilyzer machine notwithstanding that it does not

collect breath samples for retesting.

It must be pointed out to the Court that Miller

(supra), by the very language in the decision, does not

reach the issues of this case and of course, does not and

cannot overrule Hitch (supra).

In Miller (supra) the Court said at Page 670:

“In view of our determination of the basic issue,

we do not elucidate the obvious point that Hitch, by

its express terms, applies only to tests of breath ad-

ministered after its filing, October 21, 1974. All the

tests in the three cases before us were conducted be-

fore that date.”

THE CONSEQUENCES OF A CONVICTION OF

DRUNK DRIVING ARE EXTREMELY SERIOUS.

Drunk driving is a major misdemeanor. The con-

sequences of conviction are potentially horrendous.

Especially is this true where a prior is pleaded and proved.

In addition to fines, jail sentences may be imposed as can

driver’s license suspensions. Second convictions within

five years requires at least 48 hours jail time and could

result in a 1 year jail term, and up to $1,000.00 in fines

and a mandatory | year license suspension. Greater con-

sequences flow from additional convictions.

Additional consequences flow from a drunk driving

conviction, such as higher insurance premiums and diffi-

culty in obtaining insurance.

As Judge Longacre stated in his opinion:

“This Court wants it understood that it is not

condoning leniency to the drunk driver, but it is in-

sisting that every accused drunk driver who is being

exposed to the drastic consequences of a conviction be

afforded reasonable opportunity to employ a non-dis-

criminatory defense in his behalf. As Justice Mosk

indicated in the Nation decision, the integrity of our

entire judicial system is dramatically involved.”

(Emphasis supplied)

This is not a case wherein the Court is being asked to

dismiss the case at this time. The prosecution may pro-

ceed with their case sans the test results if it chooses to do

80 subject to proper challenge,

This is a case where the Court must suppress the evi-

dence based on constitutional standards which invoke fair

play. This is not a case which admits of technical or fine

distinetions, It is clear under the law that the test results

must be suppressed,

DATED; Mareh 20, 1981,

Respectfully submitted,

DeMEO & DeMEO

/s/ John F. DeMeo

Attorneys for Defendant

(Caption Omitted)

DECLARATION OF

ALBERT WALTER TROMBETTA

IN SUPPORT OF MOTION

I, ALBERT WALTER TROMBETTA, declare;

1, I am the defendant in the above entitled

proceeding;

2. That on or about January 31, 1981 IT resided at

4741 Bridle Trail Drive, Santa Rosa, California;

8, On or about January 31, 1981 I was arrested by an

Officer of the California Highway Patrol for an alleged

violation of California Vehicle Code Section 23102(a);

4. On January 31, 1981, at the Sonoma County Jail,

I was administered a breath test on an intoxilyzer ma-

chine, No other type of chemical test was administered to

me on January 31, 1981 by the California Highway Patrol,

or any other law enforcement agency ;

5. At no time on January 31, 1981 did any law en-

forcement officer, or any other person advise me that

there would be no sample of my breath preserved,

6, At no time on January 31, 1981, did any law en-

foreement officer or any other person advise me that no

means had been provided by the California Highway Pa-

trol, County of Sonoma, or any other law enforcement

agency in this county, for the preservation of a sample of

breath,

7, At no time on January 31, 1981, did any law en-

forcement officer or any other person advise me prior or

after the taking of the breath test on the intoxilyzer ma-

chine, that there would be no sample of my breath retained

for retesting;

8. I would not have submitted to the breath test on

the intoxilyzer machine had I been informed that no

sample of my breath would be obtained or preserved for

retesting;

9, Had | been informed that no sample of my breath

would be obtained or preserved for retesting, I would have

requested a blood or urine test so that I could have ob-

tained a sample thereof for retesting by an expert of my

own choice,

I declare under penalty of perjury that the foregoing

is true and correct,

‘

‘xecuted on March 20, 1981, at Santa Rose, California, '

/s/ ALBERT WALTER

TROMBETTA

(Caption Omitted)

OFFER OF DEFENDANT TO STIPULATE

Defendant ALBERT WALTER TROMBETTA, by

and through his attorneys DeMEO & DeMEO, offers to

stipulate to any or all of the hereinbelow:

1 That ALBERT WALTER TROMBETTA in con-

nection with his arrest was administered a breath test on

January 31, 1981 on an Intoxilyzer machine, Model No.

4011AW at the Sonoma County Jail, Santa Rosa,

California;

2, That at no time on January 31, 1981, either or

before or after said breath test was administered to

ALBERT WALTER TROMBETTA did any law enforece-

ment or peace officer advise ALBERT WALTER TROM-

BETTA verbally or in writing that there would be no

sample of his breath preserved for retesting or for any

purpose;

3. That on January 31, 1981, and for a period of at

least 3 years prior to January 31, 1981, no law enforcement

agency within the County of Sonoma provided any means

for the preservation of a sample of breath for retesting of

breath samples of individuals submitting to Intoxilyzer

tests at the Sonoma County Jail, in eonjunetion with

arrests for suspicion of driving a vehicle under the in-

fluence of aleoholie beverages,

4. That on January 31, 1981, and prior to the sub-

imssion by ALBERT WALTER TROMBETTA to a

breath test at the Sonoma County Jail, certain law en-

forcement officers recommended and suggested to

ALBERT WALTER TROMBETTA that take the breath

test as the choice of tests available to him to determine the

alcoholic content in his blood,

5. That on January 31, 1981, and for a period of at

least 7 years prior thereto, there was and is available a

device for the capturing and preservation of breath

samples which samples may be accurately tested within a

reasonable time thereafter for aleoholiec content of the

blood of the donor of the sample.

6. That prior to the time that the California Depart-

ment of Justice Bureau of Forensie Services was delegated

the task of testing and/or interpreting the results of

breath tests on the Intoxilyzer machine located at the

Sonoma County Jail, a private firm performed the testing

and/or interpretation of said tests and that certain law

enforcement agencies with law enforcement jurisdiction

within the County of Sonoma submitted breath samples

to said private contractor laboratory in tubes for analysis

and that sufficient samples were forwarded to said labora-

tory so as to allow a defendant an opportunity for inde-

pendent retesting of the breath sample on request.

7. That none of the simulator samples, solutions or

compounds or any part of said samples, solutions or com-

pounds used to calibrate the Intoxilyzer machine prio rto

the testing of ALBERT WALTER TROMBETTA have

been retained by the People or any law enforcement

agency.

8. That on January 31, 1981, those persons who chose

a breath test in the County of Sonoma by any machine

device operated by law enforcement officers in said county,

were not provided with nor was there availuble to such

persons, a sample of breath to be used for retesting.

9. That on January 31, 1981, and for a period of at

least three years prior thereto, at least 80% of all chemical

tests submitted to by any driver suspected of being under

the influence of intoxicating liquor, is and was the breath

test.

10, That the law of the State of California in Ve-

hicle Code Section 23126 makes no distinction among the

breath, blood or urine test as it relates to the presumption

and burden of proof in connection therewith,

ll, That the law of the State of California on

January 31, 1981 was and now is that the failure to pre-

serve samples of blood or urine taken of a defendant sus-

pected of driving a vehicle under the influence of intoxica-

ting liquor, requires the suppression of the results of the

test on a proper motion made to the Court.

12, Subject to all appropriate appellate review, a

ruling by the Court herein will be binding on the People

at Trial.

Any or all of the above stipulations are offered on the

hearing of this motion or at trial in the interest of pre-

serving the time of the Court and counsel,

DATED: March 20, 1981, 2

DeMEO & DeMEO

/8/ JOHN F. DeMEO

Attorneys for Defendant

DEMEO & DEMEO

DeMeo Building - 1022 Mendocino Avenue

Santa Rosa, California 95401

(707) 545-3282

Attorneys for Defendant

MUNICIPAL COURT OF CALIFORNIA,

COUNTY OF SONOMA

No, 78532 TCR

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiffs,

ALBERT WALTER TROMBETTA,

Defendants.

DECLARATION OF JERRY W. CURRY

(Filed March 23, 1981)

I, JERRY W. CURRY, declare as follows:

1. My name is JERRY W. CURRY and my business

address is 1041 4th Street, Santa Rosa, California;

2. Lhave a B.A. degree from San Jose State Univer-

sity in Medical Technology, Chemistry and Microbiology.

My year of graduation from San Jose State University

was 1961;

3. Tama Forensie Aleohol Supervisor duly qualified

as such by the State of California to perform Forensic

Aleohol Analysis. I have been so qualified since Decem-

ber 21, 1970.

4. I have been associated with Central Pathology

Laboratory, whose present address is 1041 4th Street,

Santa Rosa, California, since June 1, 1969.

5. Iam an officer, stockholder, and a member of the

Board of Directors of Central Pathology Lavoratory, a

California corporation engaged in the science of, among

other scientific studies, forensic aleohol analysis from

human blood, urine and breath.

6. I am the lab manager of Central Pathology Lab-

oratory.

7. I have personally performed forensic aleohol an-

alysis in conjunction with my association with Centra!

Pathology Laboratory, on human samples of blood, urine,

and breath and have personally tested and analyzed well

over 1,000 samples of blood, well over 1,000 samples of

urine and well over 1,000 samples of breath trom differ-

ent humans for aleohol analysis.

8. From approximately 1970 to some date in 1975,

Central Pathology Laboratory performed blood, urine and

breath aleohol analysis on behalf of the District Attor-

neys office of the County of Sonoma in conjunction with

said District Attorney's criminal law enforcement duties,

which analyses were primarily involved with individuals

suspected of driving motor vehicles while under the in-

fluence of aleoholic beverages in violation of the laws of

the State of California.

9. From 1972 to a date in 1975, law enforeement

agencies in Sonoma County, such as the Sheriff's Office,

California Highway Patrol and various City Police

groups, used a scientific instrument known as an ‘‘Intoxi-

meter Field Crimper-Indium Tube Encapsulation Kit’’ for

the purpose of collecting breath samples in the field, of

persons suspected of driving a vehicle under the influence

of intoxicating beverages, where those persons requested

a breath test. Various police stations throughout Sonoma

County also had these instruments on hand at their vari-

ous stations for collection of breath samples. The above

described Intoximeter Field Crimper is designed as a

capturing device for entrapment of alcohol in a breath

sample for later analysis.

It is capable of being used in a stationary location

or in a vehicle and the device operates by plugging it into

a 110 volts receptacle or a cigarette lighter receptacle in

a motor vehicle. The device and accompanying kit is

simple to use and requires very little room to house same.

No scientific background or knowledge is required to

operate the device or capture breath samples.

10. The ‘‘Intoximeter Field Crimper-Indium Tube

Encapsulation Kit’’ has been approved for use in Califor-

nia for use in breath alcohol analysis since August 8, 1973.

11. The Intoximeter Field Crimper referred t) in

this declaration and as is approved by the State of Cal-

ifornia, is designed to collect 3 samples of breath, each

of which may be separately analyzed at a time later than

the moment of collection thereof.

12. Between 1972 and a date in 1975, law enforce-

ment personnel in Sonoma County who had collected

breath samples with the Intoximeter Field Crimper would

submit three samples of breath from each suspect in

Indium Tubes to Central Pathology Laboratory. The

laboratory would in turn routinely enalyze two of the

three samples and retain the third sample intact for re-

testing by the suspect, should a request for same be made

by the suspect.

13. At all times mentioned herein, including the

present date, Central Pathology Laboratory owned and

utilized a ‘‘Gas Chromatograph Intoximeter Mark II”.

This instrument was approved by the State of California

for Breath Alcohol Analysis in 1971 and to this day said

instrument continues to be so approved. This instrument

allows the immediate analysis of breath samples collected

by direct expiration by the subject into the instrument

in which the measurement of alcohol concentration is

performed and it also permits later analysis of breath

samples which are collected with an Intoximeter Field

Crimper-Indian Tube Encapsulation Kit. Both methods

of breath alcohol analysis, i.e. the immediate analysis by

direct expiration into the instrument and the later anal-

ysis from collected samples have been authorized in Cal-

ifornia for several years.

14. To my personal knowledge, breath alcohol ana)-

ysis results from collected samples of breath using the

aforesaid Intoximeter Field Crimper, have been admis-

sible in Court as evidence in cases involving persons sus-

pected of driving motor vehicles while under the influence

of intoxicating liquor.

15. To my knowledge, the aforesaid Intoximeter

Field Crimper-Indium Tube Eneapsulation Kits are and

have been readily available for purchase and use.

16. The Gas Chromatograph Intoximeter Mark L

instrument is available for use in the Central Pathology

Laboratory at this time and will continue to be available

for use in conducting breath alcohol analysis on a scien-

tific reliable basis.

17. It is my considered opinion that breath samples

which are properly collected with the Intoximeter Field

Crimper-Indium Tube Encapsulation Kit may be readily

and accurately tested and analyzed for alcohol content.

Tests and experiments I have personally performed have

indicated that a retained breath sample in an indium tube

may be scientifically and reliably tested for up to 3

months after the collection of the breath sample.

18. An approved method of collecting breath samples

for later analysis for alcohol content has existed since

August of 1973. It is my opinion that law enforcement

personnel in Sonoma County have had the capability of

capturing and retaining said breath samples for the past

several years had they desired to do so. The Intoximeter

Field Crimper-Indium Tube Encapsulation Kit may be

used separate and apart from any other instrument for

the breath collection process and does not depend upon

any other instrument for the collection of the breath

sample.

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on March 20, 1981, at Santa Rosa, Califor-

nia.

/s/ Jerry W. Curry

JUDGE LAWRENCE G. ANTOLINI

Municipal Court - Department Three

Hall of Justice

600 Administration Drive

Santa Rosa, CA 95401

Telephone: (707) 527-2571

NO. 78532 TCR

NO. 78402 TCR

MUNICIPAL COURT FOR THE

COUNTY OF SONOMA

STATE OF CALIFORNIA

THE PEOPLE OF THE STATE

OF CALIFORNIA,

Plaintiff,

vs.

MELINDA PIERSON BERTRAM,

ALBERT WALTER TROMBETTA,

Defendants.

RULING ON 1538.5 and OTHER MOTIONS

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 a!! cases cited by

both the people and the defense. I therefore will not be

reiterating all the above 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. The art

of semantics for many years has been the subject matter

of courses taught at many of the outstanding univer-

sities in the world. Indeed then, the interpretation and or

interpolation of words can only be considered to be ac-

curate, when taken in the light of all the surrounding

circumstances of a particular situation. The verb “col-

lect” or “gather together” may be either of a temporary

or permanent nature. It appears to this court that from

the testimony elicited and from the evidence submitted,

that at best a state when using the 4011-W Intoxilizer

unit, temporarily collects or gathers breath of a tested

individual. The chamber which collects this breath con-

tains it only for a period of time necessary to conduct an

analysis on this breath. By the construction of the ma-

chine 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 theultimate dissipation and destruction of

the sample an inherent and obvious consequence of using

that particular intoxilzer 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 then must be

purged in order to be usable again. Without an addition

to the present intoxilizer unit it appears to the court that

it would be impossible to exercise permanent control re-

sulting in preservation of any sample. Therefore, it would

appear to the court that the destruction of any temporar- ,

ily 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 re-

tention is impossible without modifications. The above

referred to intoxilizer unit was approved by the State

of California in 1973; further there have been improve-

ments upon the basic unit until the present AW series.

The court finds that the intent of the Legislature is there-

fore to accept the machine as it exists without any at-

tachments which would permanently preserve the tem-

porarily collected samples of breath, since these attach-

ments nave 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 defend-

ant 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 adminis-

trative policy with the immediate purpose to obtain the

best evidence of the blood alcoho! content of a person be-

lieved to be driving while under the influence of an alco-

holic beverage. Further, the purpose of the above sections

are to avoid the possible violence which could erupt if

forcible tests were made upon a recaleatrant and bellige-

rent 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 an.j urine samples respectively.

It has been argued by the defense that at the time of the

regulations 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

amend this particular area of the law and yet the Legis-

lature has knowingly nad purposefully chosen not to

mandate the retention of breath samples.

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 decisions and further

that there is no constitutional requirement that defen-

dant 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,

Judge of the Municipal Court

DEMEO & DEMEO

DeMeo Building - 1022 Mendocino Avenue

Santa Rosa, California 95401

(707) 545-3232

Attorneys for Defendant & Appellant

MUNICIPAL COURT OF CALIFORNIA,

COUNTY OF SONOMA

No. 78532 TCR

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

vs.

ALBERT WALTER TROMBETTA,

Defendant.

STATEMENT ON APPEAL

(Filed June 11, 1981)

NOTICE IS HEREBY GIVEN BY APPELLANT

ALBERT WALTER TROMBETTA that he intends to

file a reporter’s transcript herein of the evidence and pro-

ceedings in the above entitled case and does hereby make

the said reporter’s transcript a part of his statement on

appeal.

GROUNDS OF APPEAL

1. The failure to collect and preserve a retestable

breath sample of a defendant arrested for driving a ve-

hicle in alleged violation of the California Vehicle Code

Section 23102(a), after said defendant has chosen to take

a breath test, is discriminatory, violates equal protection,

and is a denial of due process in contravention of the

Fourth, Fifth and Fourteenth Amendments to the United

States Constitution and Article I, Sections 7 and 13 of

the California Constitution and such failure to collect and

preserve said breath sample renders the results of said

breath test taken by the People subject to a suppression

order and renders the results of said test inadmissib'e in

evidence on the trial of such defendant.

2. The discriminatory legislation found in Title 17

of the Administrative Code wherein said code requires

the preservation of blood and urine samples taken from

a defendant, who has been arrested for driving a vehicle

in alleged violation of the California Vehicle Code Section

23102(a), for the purpose of retesting, but does not re-

quire the preservation of a breath sample for retesting,

is a violation of equal protection in contravention of the

United States and California Constitutions, and renders

the results of a breath test taken by the People subject

to a suppression order and renders the results of said test

taken by the People inadmissible in evidence on the trial

of such defendant.

3. The failure to advise a defendant who has been

arrested for driving a vehicle in alleged violation of Cal-

ifornia Vehicle Code Section 23102(a), after said defend-

ant has chosen to take a breath test, but before said breath

test is administered, that no breath sample is being pre-

served for retesting, so as to allow him the right to waive

the preservation of a retestable sample of his breath, or

to allow him a true and informed choice of a blood or

urine test where retestable samples are preserved, is dis-

criminatory; violates the equal protection clause and the

due process clause of the United States and California

Constitutions and renders the results of a breath test

taken by the People subject to a suppression order and

renders the results of said test inadmissible in evidence

on the trial of such defendant.

4. All other grounds urged in the Court below in

the moving papers filed therein and in the argument to

the Court found in the reporter’s transeript are also

urged on this appeal.

DATED: June 11, 1981,

Respectfully submitted,

DEMEO & DEMEO

/s/ John F,. DeMeo

Attorneys for

Defendant and Appellant

Albert Walter Trombetta

PROOF OF SERVICE BY MAIL

(C.C.P. Sees. 1013(a), 2015.5)

I, the undersigned, say:

I am and was at the time of the within deseribed

mailing, over 18 years of age and employed in the County

of Sonoma, California, in which the within referred mail-

ing occurred. I am not a party to the cause or matter

mentioned in the attached document.

My business address is 1022 Mendocino Avenue, i

ta Rosa, California 95401.

I served the attached (full title of document)

STATEMENT ON APPEAL

by placing a copy thereof in an envelope or a copy of

each in separate envelopes if more than one addressee is

hereafter named, addressed to each addressee respective-

ly at his office address, as follows:

Gene L. Tunney

District Attorney

County of Sonoma

2555 Mendocino Ave., Room 212J

Santa Rosa, California 95401

Each envelope so addressed and containing such copy

was then sealed and postage thereon fully prepaid, and

thereafter on the date and at the place this declaration

was executed, shown below, deposited by me in a mail

reception facility regularly maintained by the United

States Postal Service.

Each copy of said document so served was accompa-

nied by an unsigned copy of this proof of service made

under declaration of perjury:

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on June 11, 1981, at Santa Rosa, California.

/s/ L. Diane Goree

DIVISION FOUR

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SONOMA

APPELLATE DEPARTMENT

No, 209-C A016374

PEOPLE OF THE

STATE OF CALIFORNIA,

Plaintiff/Respondent

vs.

ALBERT WALTER TROMBETTA,

Defendant Appellant

DECISION

(Filed January 20, 1982)

Appellant’s principal contention is that failure of the

breath testing device, the Intoxilyzer, to preserve a re-

testable breath sample constitutes a denial of due pro-

cess rendering the test results inadmissible. We con-

clude that this issue was decided in People y. Miller

(1975) 52 Cal.App.3d 666, which held to the contrary. In

so holding, the Miller court expressly rejected the con-

tention that the duty to retain evidence once possessed,

see Peop e v. Hitch, 12 Cal.3d 641, should be extended to

require that all evidence which can be reduced to pre-

servable form by any means must be so transformed and

retained. Miller 52 Cal.App.3d at 670.

We are aware that the record herein contains a num-

ber of factual matters which do not appear to have been

involved in Miller. Specifically, it was stipulated that at

the time of the collection of the breath sample on the In-

toxilyzer, there was available to law enforcement authori-

ties a device which has been approved by the Department

of Health of the State for the collection of a breath sam-

ple for later testing, the Intoximeter Field Crimper-

Indium Tube Encapsulation Kit; that that device is fi-

nancially feasible for the State to use and is simple to

operate, and that it can be used at any place or location,

such as a police station or in the field. There is also

evidence in the record to the effect that there is an exist-

ing, practical technique usable with the Intoxylizer for

the preservation of breath samples, the “Silica Gel

method,” currently in use in the State of Colorado. Be

that as it may, it remains our conclusion that we are

bound by the holding of Miller.

Petitioner next contends that the requirement under

Title 17 of the Administrative Code that blood and urine

samples be preserved for retesting, but not breath sam-

ples, constitute a violation of equal protection in contra-

vention of the United States and California Constitutions.

It is axiomatic that unless a classification involves a sus-

pect classification such as one based on race, or one

which infringes on a fundamental interest such as right

to vote or pursue a lawful occupation, it will be upheld

if it bears a rational relationship to a legitimate state pur-

pose. See Weber v. City Counct’ (1973) 9 Cal.3d 950, 958-

959. The classification involved here, assuming one ex-

ists, is clearly not suspect nor does it infringe on a funda-

mental interest. Therefore, the State need only show

that it bears a rational relationship to a legitimate state

purpose. ‘The State has determined that given an oppor-

tunity to later test the accuracy of the Intoxylizer, and

given the regorous standards for maintenance and opera-

tion of the device, no sample need be preserved. Under

the rational relationship test, the State’s determination

must be respected.

Lastly, appellant contends that failure to advise a de-

fendant arrested for drunk driving that no breath sample

will be preserved for retesting constitutes a denial of

equal protection and/or due process. Since, under People

v. Branon (1973) 32 Cal.App.3d 971, failure to admonish

a defendant of his choice of tests is not of constitutional

proportion regarding exclusion of the results, we cannot

say that failure to advise him that a particular test does

not require preservation of the sample is of constitutional

proportion,

The order denying motion to suppress is affirmed.

Dated: January 19, 1982

/s/ R. H. SIG,

Judge

WE CONCUR:

/s/ WILLIAM B, SOOSE

Judge

/s/ JOHN J. GOTHE,

Judge

DIVISION FOUR

SUPERIOR COURT OF CALIFORNTA,

COUNTY OF SONOMA

APPELLATE DEPARTMENT

No, 209-C —-A016358

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff/Respondent,

vs.

ALBERT WALTER TROMBETTA,

Defendant/Appellant.

ORDER DENYING REHEARING AND CERTIFYING

FOR TRANSFER TO COURT OF APPEAL

(Filed February 17, 1982)

The Petition for Rehearing is denied.

It is hereby certified that transfer of the herein case

to the Court of Appeal appears necessary to settle an im-

portant question of law, namely, whether the holding in

People v. Miller (1975) 532 Cal.App.3d 666, that failure

to preserve a retestable breath sample does not render

Intoxilyzer breath test results inadmissible, applies to a

fact situation in which at the time of testing the breath

sample on the Intoxilyzer, there was available to law en-

forcement authorities a device which would have pre-

served a breath sample for later testing, the Intoximeter

Field Crimper-Indium Tube Encapsulation Kit, which had

been approved by the Department of Health and stipu-

lated to be financially and practicably feasible for the

State to operate.

The Appellate Department of the Superior Court on

January 20, 1982, affirmed an order of the Municipal

Court denying defendant's motion to suppress. The basis

of the Appellate Department’s decision was that it was

bound by the holding of People v. Miller, supra, and dicta

contained therein.

Dated: February 16, 1982

/s/ RAY N. L.D.,

Judge of the Superior Court

/s/ WILLIAM B. BAER,

Judge of the Superior Court

/s/ JOHN W. GOTHE,

Judge of the Superior Court

COURT OF APPEAL OF THE STATE

OF CALIFORNIA

in and for the

FIRST APPELLATE DISTRICT

Division Four

No, A016358

Sonoma

Superior Court No. 209-C

(Filed March 24, 1982)

People of the State of California,

Plaintiff and Respondent,

vs.

Albert Walter Trombetta,

Defendant and Appellant.

BY THE COURT:

The Appellate Department of the Superior Court of

the State of California in and for the County of Sonoma

having certified that a transfer of the appeal in the above

entitled action to the Court of Appeal appears necessary

to secure uniformity of decision and to settle an important

question of law, and good cause appearing therefore, the

appeal from the Municipal Court in and for Sonoma Coun-

ty now pending in said superior court and numbered 209-

e therein, is hereby transferred to the Court of Appeal,

First Appellate District, Division Fourt.

The appeal will be calendared for oral argument when

ordered on calendar.

/s/ Caldecott P.J.

Dated March 24, 1982

Thomas R. Kenney, Esq.

MURPHY, BROWNSCOMBE, KEEGAN & KENNY

200 E St., P.O. Box 1896

Santa Rosa, CA 95402

Telephone: (707) 545-5040

Attorneys for Defendant

MUNICIPAL COURT OF CALIFORNIA,

COUNTY OF SONOMA

No. 77262

PEOPLE OF THE STATE OF CALIFORNIA,

vs.

MICHAEL GENE COX,

Defendant.

NOTICE OF MOTION AND MOTION TO SUPPRESS

EVIDENCE, FOR PROTECTIVE ORDER, POINTS

AND AUTHORITIES AND DECLARATION IN SUP-

PORT THEREOF

(Filed April 8, 1981)

Hearing date: 4/13/81

9:00 A.M., Dept. #3

TO GENE IL. TUNNEY, District Attorney of Sonoma

County, State of California:

WHEREAS, the above entitled Court having hereto-

fore scheduled this cause on April 13, 1981 in Department

#3 of the above entitled court for hearing at 9:00 A.M. for

pretrial motions, you are hereby given notice that at said

time and place defendant will move pursuant to 1538.5

of the Penal Code and other applicable provisions of law

for an order of this Court directing that the breath test

results of defendant COX be suppressed as evidence

against said defendant in any further proceedings herein,

and that further, the Court issue a protective order pre-

venting any reference to said test during the course of the

trial; these motions are made on the grounds, inter alia,

that:

1. The failure to provide the defendant with a test-

able sample of his breath is discriminatory and is a denial

of due process of law in contravention of the Fourth, Fifth

and Fourteenth Amendments to the United States Con-

stitution and Article I, Sections 7 and 13, of the Califor-

nia Constitution.

2. That the failure to advise defendant that there

would be results of the test are suppressed. Defendants

who choose the breath test or who are directed to take the

same by the arresting officer, are not afforded the same

opportunity as those who choose urine or blood.

At least a defendant should be informed of such dis-

criminatory practice and given the opportunity to waive

such discrepancy in the testing procedure.

II. NATION AND HITCH REQUIRE THE SUP-

PRESSION OF THE RESULTS OF THE BREATH

TEST:

In People vs. Hitch (1974) 12 C 3d 641, the Califor-

nia Supreme Court held that where the test ampoule and

reference ampoule and bubbler tube of a Breathalizer test

taken of the defendant in a case charging violation of Ve-

hicle Code Section 23102(a), were discarded, the result of

the test would be excluded from evidence. “... unless the

prosecution can show that the governmental agencies in-

volved have established, enforced and attempted im good

faith to adhere to rigurous and systematic procedures de-

signed to preserve the test ampoule and its contents and

the reference ampou'e used in such chemical test. The

prosecution shall bear the burden of demonstrating that

such a duty to preserve the ampoules and their contents

has been fulfilled.” (At Page 652-653) (Emphasis sup-

plied )

Hitch (supra) goes on to hold that a failure to meet

that burden requ’res the results of the test to be excluded

from evidence.

In the case at bar there was no effort, no intention to

collect, or any attempt to collect breath samples of de-

fendant for preservation for retesting, nor was there any

effort to retain the simulator samples and/or solutions

and compounds used to calibrate the subject Intoxilyzer

machine used by the County of Sonoma on December 12,

1930, prior to testing this defendant on that same date.

Also, no attempt or effort was made to advise defendant

that no sample of his breath was being retained and thus

as a result of these failures the spirit of Hitch (supra)

has heen violated and thereby dictates suppression of the

test and its results.

The second of the landmark decisions by the Califor-

nia Supreme Court which compels suppression of the

breath test results herein is People vs. Nation (1980) 26

C 3 169, which made the following rulings and clarifica-

tions of Hitch (supra):

1. “Yet it is well established that the suppres-

sion by the State of evidence favorable to an accused

after a a request therefor, violates due process, irre-

spective of the good faith of the prosecution Brady v.

Maryland (1963) 373 U.S. 83, 87, (10 L. Ed. 2d 215,

218, 83 S.Ct. 1194).” At page 175.

2. “In People v. Hitch (1974) 12 C 3d 641, 650;

117 C R 9, 527 P. 2d 361, we held that the obligation

to disclose the existence of material evidence places

on the state a correlative duty to preserve such evi-

dence even without a request therefor, and directed

that in the future law enforcement agencies take rea-

sonable measures to ensure its adequate preserva-

tion.” (Emphasis supplied)

Foot Note 1. “The present case is typical of the

problem covered by Hitch, in that defendant here was

not charged at the time the police physician obtained

the semen sample. Jf a request were a condition to

the duty to preserve, the duty might not arise until it

became impossible of performance.” At page 175.

(Emphasis supplied)

3. “As in Hitch, we are not in a position to ex-

amine the suppressed evidence to decide whether or

not it is material. However, evidence lost to the de-

struction by the authorities will be deemed material

for the purpose of triggering the due process concerns

of Hitch if there is a reasonable possibility that it

would be favorable to the defendant on the issue of

guilt or innocence. (12 Cal. 3d at P. 649) Contrary

to the prosecution’s contention, the rationale of Hitch

is thus not limited to circumstances in which the de-

stroyed evidence proves a necessary element of the

crime.” At Page 176. (Emphasis supplied)

Nation (supra) imposes a duty to preserve any body

fluid or body vapor, or other substance taken from a de-

fendant, for retesting purposes, for the obvious reason

that the preservation would admit of retesting by an ac-

cused defendant’s own experts. The results of such retest-

ing could be used to impeach the prosecution’s witnesses

and could possibly completely exonerate the defendant.

In the instant case the prosecution took the breath

sample and although it could have inexpensively preserved

a sample for retesting, it did not do so and the defend-

ant was not informed that no sample would be preserved

and the defendant thereby lost any opportunity to counter

the devastating evidence of the results of the breath test

which under the Vehicle Code would give rise to a pre-

sumption of guilt of the charge of 23102(a), if the result

of the test is at or exceeds a reading of .10 percent by

weight of alcohol in the person’s blood. The results of the

test in this case trigger the presumption of guilt. The re-

sult of the test herein was .20.

The failure to collect a sample of breath for retest-

ing, makes it legally impossible for this defendant to rebut

the presumption created by law that he was guilty. Yet,

had defendant chosen a blood or urine test, the law re-

quires the preservation of a sample for retesting. This

is blatant discriminatory legis!ation on its face. There

can be no reasonable or rational distinction between the

blood, urine and breath tests, and why samples for retest-

ing are required in two of the three tests available to a

defendant, but not for the breath test.

The chemical analysis of any of the three tests gives

rise to the same presumptions under Vehicle Code Section

23126 and therefore that which is fair as to two of the tests

must apply to all.

As will be seen by the evidence to be presented on this

motion, the state of the art, was at the time of defendant’s

arrest, and had been for several years, that samples of a

defendant's breath, taken at the time a blood alcohol breath

test is given, can be preserved and can be so preserved at

a nominal cost. In fact, the cost of taking breath samples

for retesting is less costly than is required to preserve

urine or blood samples for retesting.

In fact, in this very county, prior to the advent of the

State crime lab concept, certain law enforcement agencies

had followed the procedure of collection of samples of

breath for submission for testing by a private contractor

lab and for retesting at the defendant's behest.

Ill, THERE IS STATE APPROVED AND SCIEN-

TIFICALLY ACCEPTED BREATH TESTING EQUIP-

MENT THAT CAN BE INEXPENSIVELY USED TO

PRESERVE A BREATH SAMPLE FOR LATER RE.

TESTING.

Section 1221.3(c) of the Regulations relating to Foren-

sie Aleohol Analysis and Breath Aleohol Analysis, con-

tained in Title 17 of the California Administrative Code

provides that only such instruments as have been approved

by the California State Department of Health Services

shall be used for breath alcoho! analysis in this State.

As early as 1973 the California State Department of

Health Services approved a device known as an “Intoxi-

meter Field Crimper—Indium Tube Encapsulation Kit”.

The device allows the collection of breath samples for

breath alcohol analysis at a later time than the time of

collection.

This device was, is, and has been available at a rea-

sonable cost for several years. It is simple to operate and

would give a defendant the Constitutional right she or he

may be entitled to, to wit: retesting.

There are other simple, inexpensive methods which

would allow the taking of samples of a person's breath for

later breath alcohol analysis which can be used in conjune-

tion with the Intoxilyzer machine used by the County of

Sonoma.

The evidence will amply illustrate that the samples

collected by several available means can be tested at a

subsequent time and that the results of the later tests are

reliable.

IV. THE PROSECUTION IN SONOMA COUNTY

HAS IN EFFECT “SUPPRESSED” MATERIAL EVI-

DENCE BY ITS FAILURE TO PRESERVE BREATH

SAMPLES FOR LATER ANALYSIS.

It is axiomatic that samnle of blood, breath, or urine,

are material to the proof of drunk driving charges. As

pointed out hereinabove certain presumptions arise at cer-

tain blood alcohol levels. (See Vehicle Code §23126). The

test results, if admissible, trieger certain presumptions re-

lating to guilt.

When one looks at simple analogies it becomes obvi-

ous that the failure to preserve breath samples is tanta-

mount to suppression of evidence by law enforcement,

which is, contrary to concepts of due process or as others

have spoken of it, contrary to fair play.

Take the following three examples:

1. Let us suppose that a bullet is removed from a

murder victim, analyzed by the governmental crime lab

for the purpose of connecting it up to the defendant’s gun

and then thrown away or destroyed before defendant can

have it analyzed.

2. Suppose again that fingerprints found at a burg-

lary scene are rolled and put on a card, analyzed and com-

pared with defendant’s, and after comparison the card is

thrown away before the defendant has an opportunity to

have them analyzed.

3. Suppose that a defendant is accused of murder

by poison and the liquid is retrieved and analyzed and

found by the prosecution to be poison and the substance

is thrown away before allowing an analysis by the defend-

ant.

In each of the above situations, one can readily say

the defendant has been denied due process. Hitch (supra)

and Nation (supra) tell us that there is something inher-

ently unfair and wrong about the non-preservation of ma-

terial evidence.

In the instant case, law enforcement has deliberately,

consciously, and voluntarily chosen to make their own

breath test on an Intoxilyzer, knowing that it does not

preserve the breath sample taken and in spite of this

knowledge has made no effort, although easy and inex-

pensive to do so, to preserve breath samples for retest-

ing.

It is inherently wrong, unfair and unconstitutional

to allow the prosecution to use the results of a test per-

formed on body fluid or vapor to trigger certain presump-

tions of guilt without the most basic of safeguards, viz.

the preservation of a sample of that fluid or vapor for

retesting by defendant to verify or refute the test results

contended for by the prosecution.

The evidence will show in this case that the Intoxi-

lyzer machine used by the prosecution to perform the

breath test in this case ts far from foolproof. It is woe-

fully non-specific, i. e., reacts false positively to a number

of substances which are not ethanol. The Intoxilyzer can

also be inadvertently or advertently tampered with and

ean be improperly calibrated, all of which shortcomings

are the fundamental and basic reasons why the test results

on such a machine must be suppressed in the absence of a

retestable preserved breath sample.

V. THE HONORABLE JOSEPH R. LONGACRE,

JR., JUDGE OF THE MUNICIPAL COURT OF CON-

TRA COSTA COUNTY HAS RULED THAT THE

FAILURE TO PROVIDE THE DEFENDANT WITH A

SAMPLE OF HIS BREATH FOR PURPOSES OF RE.

TESTING AS IS DONE IN THE CASE OF BLOOD

AND URINE, DISCRIMINATES AND DENIES THE

DEFENDANT A FAIR TRIAL PREVENTING HIM

FROM ENJOYING THE DUE PROCESS OF LAW HE

IS GUARANTEED.

Although this Court is not bound by another Munici-

pal Court Judge’s decision, it is submitted that Judge

Longacre’s decision is what Hitch (supra) and Nation

(supra) are all about.

A complete copy of Judge Longacre’s decision is

marked Exhibit “A” and is attached hereto for the con-

venience of the Court and counsel. It is patently clear

that Judge Longacre’s analysis of the problem presented

herein is a sound one and his decision should be followed.

VI. SISTER COUNTY MUNICIPAL COURT DE-

SISION ON SIMILAR FACTS FAVORABLE TO THE

DEFENDANT.

Defendant has heretofore requested that this Court

take judicial notice of the decision of Judge Joseph R.

Langacre Jr., Judge of the Municipal Court of the County

of Contra Costa, in People vs. Haslam, Walnut Creek-

Danville Judicial District case No, 29904-D.

Although the Court is not bound by this decision,

the Court’s reasoning and analysis of the application of

Hitch (supra) and Nation (supra) might be helpful to the

Court in this cause.

VII. COLORADO AND ARIZONA SUPREME

COURTS APPLY PEOPLE V. HITCH (SUPRA) IN

FACTUAL SITUATION SIMILAR TO THIS CAUSE.

In the case of Garc'a v. The District Court (1979) 589

P. 2d 924 the Colorado Supreme Court had before it the

precise question posed in the instant case. Colorado has

a statutory scheme identical to that in California, in that

the same chemical tests are available to a defendant; the

identical presumptions apply given certain levels of alcohol

in the blood as analyzed by blood, urine or breath tests

and the regulations pertinent to chemical analysis pro-

vided for preservation of blood and urine samples for the

defendant but did not provide for preservation of breath

samples.

In Garcia (supra) as here no breath sample was pre-

served and the sirralator samples were unavailable. There,

as here, there was no requiremert to retain breath samples

under Colorado State Board of Health Regulations, but

there was such a requirement as to blood and urine.

The full text of the Garcia (supra) case is attached

hereto marked Exhibit “B” and made a part hereof by

reference,

Several holdings were made by the Colorado Court

which it is respectfully submitted, apply to this case. They

are as follows:

1, “Preservation of the blood, urine, or breath which

formed the basis for the conclusion that a person was

operating a vehicle while under the influence of intoxicat-

ing liquors is essential in view of the presumption that

arises from the test.” At Page 926;

2. “.. . procedures exist which permit the preserva-

tion of a Breathalyzer sample for use by the defense.”

At Page 926;

3. “The breath samples requested by the defendants

are obviously material to the proof of the drunk driving

charges.” At Page 929;

4. “It is not necessary for a defendant to demonstrate

that the evidence he seeks to discover, but which is no

longer available for examination by the Court, would have

been favorable to him. People v. Harmes, 38 Colo. App.

378, 560 P. 2d 470 (1976), so long as that evidence is not

merely ‘incidental’ to the prosecution’s case or to the de-

fendant’s affirmative defense. People v. Bynum, 192 Colo.

60, 556 P. 2d 469 (1976). Tt is sufficient that the material

requested ‘might’ he ‘favorable to the accused.’ United

States v. Bryant, 142 U.S) App. D.C. 132, 142 N. 21, 439

F. 2d 642, 652 N. 21 (D.C. Cir. 1971).” At Page 929;

5. “The failure of the State to collect and preserve

evidence, when those acts can be accomplished as a mere

incident to a procedure 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

be’ ‘favorable’ to the accused.” At Pages 929-930. (Em-

phasis supplied)

Basically, Garcia (supra) holds as does Hitch (supra)

and Nation (supra).

In California, (like Colorado), Vehicle Code Section

23126 imposes certain presumptions based upon chemical

analysis of blood or urine or breath. Abso’utely no dis-

tinction is made as to the presumption which comes into

play based upon the type of test taken by a defendant.

California Vehicle Code Section 13353 gives the per-

son arrested the absolute right to have a blood, breath or

urine test and he is required to be advised of his choice

by law enforcement.

The refusal to submit to a test results in a suspension

of one’s driver’s license for a period of 6 months.

The very language of California Vehicle Code Section

13354 allows the person submitting to one of the three

tests to have a retest. The obvious intent of the legisla-

ture is to have a sample available for retest, otherwise

there can be no retest and the statute would he meaning-

less.

There can he no freedom of choice unless the defend-

ant is informed that if he chooses the breath test, no

sample will be preserved. He must be given the right to

choose any of the tests that will preserve to him the right

to retest. Otherwise, he has not given an informed con-

sent nor has he had a free choice knowing all the facts,

and in such case the results of the test must be suppressed

in fairness. It can be properly argued that an unreason-

able search and seizure has been made of defendant’s per-

son and body vapor when he was not properly informed

and advised by law enforcement.

Title 17, Sections 1219 through 1219.3 only require

blood and urine samples to be maintained for analysis by

the defendant. Thus, a defendant choosing a breath test

is denied equal protection for no rational reason.

Perhaps, at the time the Administrative Code Regu-

lations were adopted, there was no approved method of

collecting breath samples. Such has not however been the

case since 1973 as pointed out at an earlier point in this

memorandum.

An Arizona Supreme Court decision, Baca v. Smith,

1979, 124 Ariz. 353, holds similarly to Garcia (supra), and

the test is attached and marked Exhibit “C”.

VIII. DISCRIMINATORY STATE LEGISLATIVE

ACTION REQUIRING PRESERVATION OF BLOOD

AND URINE SAMPLES AND NOT BREATH IS A DE-

NIAL OF EQUAL PROTECTION.

In Reed v. Reed (1971) 404 U.S. 71, 92 8. Ct. 251,

our United States Supreme Court said:

“The Equal Protection clause ... (den(ies) to

states the power to legislate that different treatment

be accorded to persons placed by a statute into dif-

ferent classes on the basis of criteria wholly unrelated

to the objective of that statute. A classification ‘must

be reasonable, not arbitrary, and must rest upon some

ground of difference having a fair and substantial re-

lation to the object of the legislation, so that all per-

sons similarly circumstanced shall be treated alike’ ”

quoted in Brown vy. Merlo (1973) 8 C. 3d 855, 861.

In applying Reed (supra) to the instant case, it is

obvious that one group of individuals who choose a breath

test as opposed to a blood or urine test, are given a differ-

ent treatment as to their right to a body sample for re-

testing even though the body sample in question, (breath)

is just as vital to the case as blood or urine samples and

in spite of the fact that the breath can be casily and in-

expensively preserved for retesting.

It is difficult to conceive how any sound thinking per-

son can argue against the fact that a defendant taking

a breath test is denied equal protection where no sample

is preserved.

It is neither reasonable nor consistent for law enforce-

ment to ignore the fact that science has had an approved,

reasonable, simple, inexpensive way to preserve breath

samples for retesting, at least since 1973. Law enforce-

ment cannot be allowed to defend their laxity in preserv-

ing breath samples on the basis that Title 17 “doesn’t re-

quire it”.

Vehicle Code Section 13354(¢) which provides that:

“Upon the request of the person tested full in-

formation concerning the test taken at the direction

of the peace officer shall be made available to him or

his attorney”,

can be read to override Title 17.

This section certainly can be read to intend that “full”

information including breath samples be made available

to a defendant. Otherwise, the section has little or no

meaning.

IX. PEOPLE V. MILLER IS INAPPLICABLE TO

THE ISSUES IN THIS CASE BY ITS OWN LAN-

GUAGE,

The prosecution will undoubtedly argue that People

v. Miller (1975) 52 Cal. App. 3d 666, upholds the use of

the Intoxilyzer machine notwithstanding that it does not

collect breath samples for retesting.

It must be pointed out to the Court that Miller (su-

pra) by the very language in the decision, does not reach

the issues of this case and of course, does not and cannot

overrule Hitch (supra).

In Miller (supra) the Court said at Page 670:

“In view of our determination of the basic issue,

we do not elucidate the obvious point that Hitch, by

its express terms, applies only to tests of breath ad-

ministered after its filing, October 21, 1974. All the

tests in the three cases before us were conducted be-

fore that date.”

X. THE CONSEQUENCES OF A CONVICTION

OF DRUNK DRIVING ARE EXTREMELY SERIOUS.

Drunk driving is a major misdemeanor. The conse-

quences of conviction are potentially horrendous. In addi-

tion to fines, jail sentences may be imposed as can driver’s

license suspensions. Second convictions within five years

require at least 48 hours jail time and could result in a 1

year jail term, and up to $1,000.00 in fines and a manda-

tory 1 year license suspension. Greater consequences flow

from additional convictions.

Additional consequences flow from a drunk driving

conviction, such as higher insuranee premiums and diffi-

culty in obtaining insurance,

As Judge Longacre stated in his opinion:

“This Court wants it understood that it is not

condoning leniency to the drunk driver, but it is in-

sisting that every accused drunk driver who is being

exposed to the drastic consequences of a conviction

be afforded reasonable opportunity to employ a non-

discriminatory defense in his behalf. As Justice

Mosk indicated in the Nation decision, the integrity

of our entire judicial system is dramatically involved.”

(Emphasis supplied)

This is not a case wherein the Court is being asked to

dismiss the case at this time. The prosecution may pro-

ceed with their case sans the test results if it chooses to

do so.

This is a case where the Court must suppress the evi-

dence based on constitutional standards which invoke fair

play. This is not a case which admits of technical or fine

distinctions. It is clear under the law that the test re-

svlts must be suppressed.

Dated: 3/31/81

Respectfully submitted,

Murphy, Brownscombe, Keegan

& Kenney

By: /s/ Thomas R. Kenney

Attorneys for Defendant.

(Captioned Omitted)

No. 77262

POINTS AND AUTHORITIES IN SUPPORT OF

MOTION TO SUPPRESS AND MOTION

FOR PROTECTIVE ORDER

(Filed October 16, 1981)

I. Background Information:

The above named defendant was arrested on or about

December 12, 1980, by the California Highway Patrol, and

chose the breath test after having been encouraged to do

so by the arresting officers. Defendant anticipates that

it will not be disputed at the time of the hearing of this

motion that every arresting agency in the Sonoma County

area utilizes one Intoxilyzer breath machine located at the

Sonoma County Jail when a suspected 23102a arrestee

chooses a breath test pursuant to (13353 of the California

Vehicle Code; that officers do not inform these defendants

that this choice of the three tests will not afford the de-

fendant an opportunity for later testing; that no breath

samples of the defendant are preserved for later testing,

and that the simulator samples and solutions and com-

pounds used to califrate this machine are not preserved

for later retesting by the defendant.

Defendaut maintains, in substance, that the failure

of a law enforcement agency to preserve a breath sample

for his own retesting is discriminatory, denies equal pro-

tection and due process of law to an accused, and denies

a fair trial unless the no breath sample preserved as evi-

dence and/or for retesting is discriminatory and is a de-

nial of due process of law in contravention of the Fourth,

Fifth and Fourteenth Amendments to the United States

Constitution and Article I, Sections 7 and 13, of the Cali-

fornia Constitution.

3. That the failure to preserve the simulator samples

and solutions and compounds used to califrate the Intoxi-

lyzer machine used by the County of Sonoma on Decem-

ber 12, 1980, before the defendant was administered the

test, is discriminatory, and is a denial of due process of

law in contravention of the Fourth, Fifth and Fourteenth

Ame: Jments to the United States Constitution and Article

I, Sections 7 and 13 of the California Constitution.

4. That the failure of the arresting officers and/or

the State Criminalistie Lab, Department of Justice, to at

least inform (orally or in writing) suspected intoxicated

drivers who choose a breath test that this is the ony test

of the three available pursuant to Vehicle Code Section

13353 that does not afford them the opportunity of a later

retesting of the sample is a denial of due process of law

in contravention of the Fourth, Fifth and Fourteenth

Amendments to the United States Constitution and Article

I, Sections 7 and 13 of the California Constitution.

This motion is based on this notice, the pleadings, rec-

ords and files in this action, the attached memorandum of

points and authorities, the supporting declaration of de-

fendant and such other oral and/or written evidence and

declarations as may hereinafter be offered at the time of

the hearing of this motion.

Dated: March 8, 1981.

Murphy, Brownscombe, Keegan &

Kenney

By: /s/ Thomas R. Kenney

Attorney for Defendant

No. 77262

(Caption Omitted)

DECLARATION OF DEFENDANT MICHAEL

GENE COX IN SUPPORT OF MOTION

TO SUPPRESS, ETC.

(Filed April 9, 1981)

I, MICHAEL GENE COX, declare:

1. I am the defendant in the above entitled proceed-

ing;

2. On or about December 12, 1980, I resided at 2138

Westwood Drive, Santa Rosa, California.

3. On December 12, 1980, I was arrested by an offi-

cer of the California Highway Patrol for an alleged vio-

lation of California Code Section 23102(a).

4. On or about said date of my arrest, I was taken

to the Sonoma County Jail and administered a breath test

on an Intoxilyzer machine. No other type of chemical

test was administ»red to me on this date, by the arresting

officers or any other law enforcement agency.

5. The arresting officers read me an admonition of

my rights under 13353 of the California Vehicle Code and

then suggested that I take the breath test to determine

the e'oholic content in my system.

6. At no time did any of the arresting officers or any

other law enforcement representative advise me that there

would be no sample of my breath preserved for later analy-

sis or comparison analysis.

7. At no time did any of the arresting officers or any

other law enforcement officer indicate to me that in the

blood and urine tests, samples were available to an ar-

rested individual for later analysis, differentiating these

from the breath test.

8. At no time did the arresting officer or any other

law enforcement official advise me that no means had been

provided by the County of Sonoma, State of California,

or any of its law enforcement agencies in this county for

the preservation of a sample of breath.

9. I would not have submitted to the breath test of

the intoxilyzer machine had I been informed that no sample

of my breath would be retained or preserved for later re-

testing.

10. Had I been so informed, I would have chosen one

of the other two tests, urine or blood, thus affording me

an opportunity for my own retesting by an expert of my

choice.

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on April 8, 1981, at Santa Rosa, California.

/8/ Michael Gene Cox

No. 77262

(Caption Omitted)

DECLARATION OF DEFENDANT MICHAEL

GENE COX IN SUPPORT OF MOTION

TO SUPPRESS, ETC.

(Filed May 19, 1981)

I, MICHAEL GENE COX, declare:

1. Iam the defendant in the above entitled proceed-

ing.

2. On or about December 12, 1980, I resided at 2138

Westwood Drive, Santa Rosa, California.

3. On December 12, 1980, I was arrested by an offi-

cer of the California Highway Patrol for an alleged viola-

tion of California Vehicle Code Section 23102(a).

4. On or about said date of my arrest, I was taken

to the Sonoma County Jail and administered a breath test

on an Intoxilyzer machine. No other type of chemical test

was administered to me on this date, by the arresting offi-

cers or any other law enforcement agency.

5. The arresting officers read me an admonition of

my rights under 13353 of the California Vehicle Code and

then suggested that I take the breath test to determine the

alcoholic content in my system.

6. At no time did any of the arresting officers or

any other law enforcement representative advise me that

there would be no sample of my breath preserved for later

analysis or comparison analysis.

7. At no time did any of the arresting officers or any

other law enforcement officer indicate to me that in the

blood and urine tests, samples were available to an ar-

rested individual for later analysis, differentiating these

from the breath test.

8. At no time did the arresting officer or any other

law enforcement official advise me that no means had been

provided by the County of Sonoma, State of California, or

any of its law enforcement agencies in this county for the

preservation of a sample of breath.

9. I would not have submitted to the breath test on

the intoxilyzer machine had I been informed that no sample

of my breath would be retained or preserved for later re-

testing.

10. Had I been so informed, I would have chosen one

of the other two tests, urine or blood, thus affording me

an opportunity for my own retesting by an expert of my

choice..

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on May 15, 1981, at Santa Rosa, California.

/8/ Michael Gene Cox

No. 77262 TCR

(Caption Omitted)

SUPPLEMENTAL POINTS AND AUTHORITIES

IN SUPPORT OF DEFENDANT’S MOTION

TO SUPPRESS EVIDENCE

(Filed June 25, 1981)

[These points and authorities should be considered to-

gether with those previously filed with the court by the

defendant. |

Title 17, California Administrative Code, provides, as

is stated in points and authorities submitted by the People

in opposition to defendant’s motion, for the procedures to

be followed in Forensic Aleohol Analysis.

Title 17 $1219 is as follows:

“Samples taken fer forensic aleohol analysis and

breath alcohol analysis shall be collected and handled

in a manner approved by the Department. The iden-

tity and integrity of the samples shall be maintained

through collection to analysis and reporting.” (Em-

phasis added)

Title 17 $1221. Setting out the procedures for analy-

sis of breath alcohol. §1221(c) indicates that breath alco-

hol analysis can only be performed on samples which are

either (a) “collected with a sample capturing instrument

designed for entrapment of a breath sample”, and (b) a

capturing instrument designed “for entrapment of a breath

sample for later analysis”. In either situation for the in-

strument to be approved for breath alcohol analysis under

Title 17, a distinct sample of breath must be collected. The

detailed conditions under which the breath sample must be

taken are set out in §1219.3 as follows:

“A breath sample shall be expired breath which is es-

sentially alveolar in composition. The quantity of the

breath sample shall be established by direct volumetric

measurement, The breath sample shall be collected

only after the subject has been under continuous ob-

servation for at least fifteen minutes prior to collec-

tion of the breath sample, during which time the sub-

ject must not have ingested alcoholic beverages or

other fluids, regurgitated, vomited, eaten, or smoked.”

(Emphasis added)

Since the quantity of the breath taken as the sample

must be determined by its volume, it must, of necessity, be

eaptured in an enclosed container. Thus, a container in

the apparatus must be filled to capacity in order to prop-

erly conduct the test in accordance with §1221.1. This

sample collected by authorities, in a container suitable to

testing, under their control and capable of yielding the

only scientifie evidence available of defendant’s state of

intoxication and capable of triggering a presumption of

that intoxication, is destroyed by the willful act of purg-

ing the container with air.

In the People’s points and authorities at P. 2, L. 25,

ete., they contend that the People have no duty to collect

evidence but merely to preserve evidence in the state’s

possession. This is all that the defendant requires. The

state did have a sample of his breath but failed to pre-

serve it as required by People v. Hitch (1974) 12 C 3d 641

and People v. Nation (1980) 26 C 3d 169,

The People at P. 9, L. 19, ete., of their motion indicate

that the intoxilyzer used by them is incapable of collecting

a sample (which, of course, would make the machine in-

elligible for use under Title 17 §1219 and §1221(c), and

that the act of testing destroys the sample. They cite

State v. Young (1980) 614 P 2d at 446; however, Young

does not deal with the tests performed by an intoxilyzer

of the type in the case before the court. In Young test-

ing was done by gas chromatography which, of necessity,

destroys the sample. At P.1 of the People’s motion they

state that the test is performed by measuring the relative

absorption of infrared energy which would have no chem-

ical effect on the integrity of the sample. At P. 2 they

admit that the sample is lost through a purging of the

sample container with air. Thus, the sample of defend-

ant’s breath was not destroyed by the testing but by a

purposeful act of the operator of the machine after he had

made his tests. Thus, the numerous cases cited by the

People in support of the proposition that a defendant is

not denied due process when evidence is lost in the course

of scientific analysis, have no relevance in the case before

the court. Here the sample was collected by the authori-

ties, tested by them but not altered by that test, and then,

when the authorities had obtained results satisfactory to

them, was destroyed by their acts.

Under Hitch (supra) the court in a case such as this

must make a three-pronged inquiry: (1) was the evidence

at issue material to the case; (2) was it destroyed by the

investigative agency and (3) assuming affirmative an-

swers to these two questions, have the People proved that

rigorous and systematic procedures designed to preserve

such evidence were being enforced at the time the evidence

was destroyed? It is clear that the first two questions

must be answered in the affirmative. In regards to the

third, the People have not even claimed that they attempted

to preserve the sample. They just deny that any sample

was collected and if the court finds this to be true, it must

also find that the method of collecting and testing defend-

ant’s breath did not comply with the requirements of Title

17 and thus must suppress the evidence. Alternatively,

they claim that it is either too costly or unpractical or im-

possible to preserve the sample that they tested. They

certainly have not proved (nor even claimed) that they

have any procedures designed to preserve the evidence.

Thus, the People having failed to comply with the teach-

ing of Hitch, the evidence must be suppressed.

CONCLUSION

In light of the above arguments and those presented

previously in defendant’s motion to suppress evidence, it

is respectfully urged that the defendant's motion be granted

and the results of the breath alcohol test administered to

the defendant be suppressed.

Respectfully submitted,

Murphy, Brownscombe, Keegan &

Kenny

By: /s/ Thomas R. Kenney

Attorneys for Defendant.

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SONOMA

No. 77262

PEOPLE OF THE STATE OF CALIFORNIA

Plaintiff/Respondent,

vs.

MICHAEL GENE COX

Defendant/Appellant.

PROPOSED SETTLED STATEMENT

OF FACTS

(Filed August 31, 1981)

INTRODUCTION

The defendant appeals from an order of the Municipal

Court entitled on July 3, 1981 denying his Motion to Sup-

press Evidence. A Notice of Appeal was filed with this

court on July 30, 1981 (Exhibit A) together with a Stipu-

lation consolidating five other cases which had been heard

together with this case by the Municipal Court. (Exhibit

STATEMENT OF FACTS

The defendant (and each of the defendants’ noted in

Exhibit B) was arrested for driving under the influence

of alcohol, in the County of Sonoma, was transported to

Sonoma County Jail and there tested with a blood-alcohol

device known as an Omicron Intoxalizor.

Pursuant to a Stipulation entered into a hearing of

the motion to suppress on this case it was agreed as fol-

lows:

“2, That the defendant and the People by their re-

spective counsel agree that all points and authorities, testi-

mony, findings and the decision by the law and motion

judge in People v. Bertram, action #78402 TCR, shall be

binding on the People and the defendant in this cause as

if the testimony, points and authorities, ete., had been given

in this cause.”

Respectfully submitted,

/s/ Thomas Kenney

/s/ William D. A. Wallace

Attorneys for Defendant

No. 77262

(Captioned Omitted)

NOTICE OF APPEAL

(Filed July 20, 1981)

(Filed October 16, 1981)

Defendant MICHAEL GENE FOX hereby appeals

from an order of the Municipal Court entered on July 10,

1981 denying his Motion to Suppress Evidence.

DATED: July 27, 1981

/s/ Thomas Kenney

/s/ William D. A. Wallace

Attorneys for Defendant

(Caption Omitted)

No. 77262

STIPULATION AND ORDER

(Filed October 16, 1981)

IT IS HEREBY STIPULATED by and between the

attorneys for the respective parties that for purposes of

appeal the following cases should be consolidated with this

case:

People v. Herbert Berreyesa 79839

People v. Patricia J. Keeffe 78305

People v. Thomas Muldoon 79044

People v. Kensel L. Furner 78206

People v. Clinton James Brown Jr. 79846

People v. Michael Gene Cox 77262

Date: 7-30-81 /s/ illegible

Deputy District Attorney

Date: 7-30-81 /s/ Thomas Kenney

Date: 7-30-81 /s/ William D. A. Wallace

ORDER

Pursuant to the stipulation of counsel, IT IS OR-

DERED that the cases be consolidated as setforth herein.

(SEAL)

/s/ illegible

Judge

(Caption Omitted)

No. 77262

DECLARATION OF JERRY W. CURRY

(Filed October 16, 1981)

I, JERRY W. CURRY, declare as follows:

1. My name is JERRY W. CURRY and my business

address is 1041 4th Street, Santa Rosa, California;

2. I have a B.A. degree from San Jose State Uni-

versity in Medical Technology, Chemistry and Microbiol-

ogy. My year of graduation from San Jose State Uni-

versity was 1961;

3. Iam a Forensic Alcohol Supervisor duly qualified

as such by the State of California to perform Forensic

Alcohol Analysis. I have been so qualified since Decem-

ber 21, 1970.

4. I have been associated with Central Pathology

Laboratory, whose present address is 1041 4th Street,

Santa Rosa, California, since June 1, 1969.

5. I am an officer, stockholder, and a member of the

Board of Directors of Central Pathology Laboratory, a

California corporation engaged in the science of, among

other scientific studies, forensic alcohol analysis from hu-

man blood, urine and breath.

6. Iam the lab manager of Central Pathology Labo-

ratory.

7. Ihave personally performed forensic alcohol anal-

ysis in conjunction with my association with Central Path-

ology Laboratory, on human samples of blood, urine, and

breath and have personally tested and analyzed well over

1,000 samples of blood, well over 1,000 samples of urine

and well over 1,000 samples of breath from different hu-

mans for alcohol analysis.

8. From approximately 1970 to some date in 1975,

Central Pathology Laboratory performed blood, urine and

breath alcohol analysis on behalf of the District Attorney’s

office of the County of Sonoma in conjunction with said

District Attorney’s criminal law enforcement duties, which

analyses were primarily involved with individuals sus-

pected of driving motor vehicles while under the influence

of alcoholic beverages in violation of the laws of the State

of California.

9. From 1972 to a date in 1975, law enforcement agen-

cies in Sonoma County, such as the Sheriff’s Office, Cali-

fornia Highway Patrol and various City Police groups,

used a scientific instrument known as an “Intoximeter

Field Crimper-Indium Tube Encapsulation Kit” for the

purpose of collecting breath samples in the field, of per-

sons suspected of driving a vehicle under the influence of

intoxicating beverages, where those persons requested a

breath test. Various police stations throughout Sonoma

County also had these instruments on hand at their vari-

ous stations for collection of breath samples. The above

described Intoximeter Field Crimper is designed as a cap-

turing device for entrapment of alcohol in a breath sample

for later analysis.

It is capable of being used in a stationery location or

in a vehicle and the device operates by plugging it into a

110 volts receptacle or a cigarette lighter receptacle in a

motor vehicle. The device and accompanying kit is simple

to use and requires very little room to house same. No

scientific background or knowledge is required to operate

the device or capture breath samples.

10. The “Intoximeter Field Crimper—Indium Tube

Encapsulation Kit” has been approved for use in Cali-

fornia for use in breath aleohol analysis since August 8,

1973.

11. The Intoximeter Field Crimper referred to in

this declaration and as is approved by the State of Cali-

fornia, is designed to collect 3 samples of breath, each of

which may be separately analyzed at a time later than the

moment of collection thereof.

12. Between 1972 and a date in 1975, law enforce-

ment personnel in Sonoma County who had collected breath

samples with the Intoximeter Field Crimper would submit

three samples of breath from each suspect in Indium Tubes

to Central Pathology Laboratory. The laboratory would

in turn routinely analyze two of the three samples and

retain the third sample intact for retesting by the suspect,

should a request for same be made by the suspect.

13. At all times mentioned herein, including the pres-

ent date, Central Pathology Laboratory owned and utilized

a “Gas Chromatograph Intoximeter Mark II”. This in-

strument was approved by the State of California for

Breath Alcohol Analysis in 1971 and to this day said in-

strument continues to be so approved. This instrument

allows the immediate analysis of breath samples collected

by direct expiration by the subject into the instrument in

which the measurement of aleoho] concentration is per-

formed and it also permits later analysis of breath sam-

ples which are collected with an Intoximeter Field Crimper

—Indium Tube Encapsulation Kit. Both methods of breath

alcohol analysis, i.e. the immediate analysis by direct ex-

piration into the instrument and the later analysis from

collected samples have been authorized in California for

several years.

14. To my personal knowledge, breath alcohol analy-

sis results from collected samples of breath using the afore-

said Intoximeter Field Crimper, have been admissible in

Court as evidence in cases involving persons suspected of

driving motor vehicles while under the influence of in-

toxicating liquor.

15. To my knowledge, the aforesaid Intoximeter Field

Crimper—Indium Tube Encapsulation Kits are and have

been readily available for purchase and use.

16. The Gas Chromatograph Intoximeter Mark II

instrument is available for use in the Central Pathology

Laboratory at this time and will continue to be available

for use in conducting breath aleohol analysis on a scientifi-

cally reliable basis.

17. It is my considered opinion that breath samples

which are properly collected with the Intoximeter Field

Crimper—Indium Tube Encapsulation Kit may be readily

and accurately tested and analyzed for aleohol content.

Tests and experiments | have personally performed have

indicated that a retained breath sample in an indium tube

may be scientifically and reliably tested for up to 3 months

after the collection of the breath sample.

18. An approved method of collecting breath samples

for later analysis for aleohol content has existed since

August of 1973. It is my opinion that law enforcement

personnel in Sonoma County have had the capability of

capturing and retaining said breath samples for the past

several years had they desired to do so. The Intoximeter

Field Crimper—Indium Tube Encapsulation Kit may be

used separate and apart from any other instrument for

the breath collection process and does not depend upon any

other instrument for the collection of the breath sample.

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on May 18, 1981, at Santa Rosa, California.

/s/ Jerry W. Curry

DIVISION FOUR

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SONOMA

APPELLATE DEPARTMENT

No, 215-C A016374

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff/Respondent

vs.

MICHAEL GENE COX, et al.,

Defendants/Appellants

DECISION

(Filed January 20, 1982)

The issues herein are identical with those involved in

the matter of People v. Albert Walter Trombetta, No.

209-C, decided this day. We attach a copy of our decision

in that matter hereto and incorporate its reasoning by

reference.

The order denying defendants’ motion to suppress is

affirmed.

Dated: January 19, 1982

/s/ illegible

Judge

WE CONCUR:

/s/ WILLIAM B. BOONE,

/s/ JOHN J. GOTHES,

Judge

DIVISION FOUR ;

Thomas R. Kenney, Esq.

MURPHY BROWNSCOMBE, KEEGAN,

KENNEY & BARBOSE, Attorneys at Law

200 E St., P. O. Box 1896

Santa Rosa, CA 95402

Telephone: (707) 545-5040

Attorneys for Appellants

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SONOMA

APPELLATE DEPARTMENT

No. 215-C A016374

PETITION FOR REHEARING AND

APPLICATION FOR CERTIFICATE

(Filed February 9, 1982)

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff /Respondent,

vs.

MICHAEL GENE COX, THOMAS NELSON,

MULDOON, CLINTON JAMES BROWN,

KENSEL LEE FURNER, PATRICIA JANE

KEEFFE, HERBERT JOHN BERREYESSA,

and JAMES K. SCHNEIDER,

Defendants/Appellants.

TO: THE APPELLATE DEPARTMENT OF THE

ABOVE ENTITLED COURT.

Pursuant to Rules of Court, 107, defendants and ap-

pellants (hereinafter appellants) herewith petition for a

rehearing or in the alternative for an order directing that

this matter be certified for transfer to the District Court

of Appeal pursuant to Rules of Court 62 and 63(a).

BASIS FOR REHEARING

PEOPLE V,. MILLER IS NOT CONTROLLING

In Miller, (1975) 52 C A 3d 666 the Court stated in its

own language that its holding was dicta. (See page 670

of the opinion.)

In addition, the Miller court did not address itself to

the equal protection issue. On page 668 of the Miller deci-

sion they impliedly demonstrate that they were either

unaware that the field crimper was available or didn’t

consider such a fact if they knew it was available.

EQUAL PROTECTION REQUIRES EQUALITY

UNDER THE SAME CONDITIONS

The preservataion of blood and urine samples is man-

dated by applicable Administrative Code regulations, yet

breath collection is not so mandated. This alone is a clear

violation of the equal protection provisions of the state

and federal constitutions.

Garcia v, the District Court (1979) 589 P. 2d 924;

People v. Nation (1980) 263 C 3d 169; and People v. Hitch

(1974) 12 C 3d 641 all direct that law enforcement must

make preservable evidence available to a defendant or

suffer the consequences (suppression of the tests or evi-

dence). Thus, destructive testing is prohibited.

III

THESE CONSOLIDATED CASES SHOULD BE

CERTIFIED TO THE DISTRICT COURT OF APPEAL

There are hundreds of pending 23102(a) prosecu-

tions in this jurisdiction, and several other motions simi-

lar to appellants’ motion either before the Municipal

Court or under submission in the 1982 Appellate Division

of this Superior Court.

Under 63(A) important and far reaching questions

of law are involved, hence, under Rule 62(a) and 63(a)

this matter should be certified.

Enhanced penalties under the new 23152 CVC rules

further emphasize this need. In addition, the distinctions

set forth in Miller (supra) and the holdings of sister

state Supreme Courts (Garcia, supra) give this Court a

further basis for certification.

WHEREFORE, appellants request either a rehearing

or certification to the District Court of Appeal.

Dated: February 9, 1982.

Respectfully submitted,

MURPHY, BROWNSCOMBE, KEEGAN,

KENNEY & BARBOSE

/s/ THOMAS R. KENNEY,

Attorneys for Appellants.

DIVISION FOUR

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SONOMA

APPELLATE DEPARTMENT

No. 215-C

(Stamped A016374)

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff/Respondent,

vs.

MICHAEL GENE COX, et al.,

Defendant/Appellant.

ORDER DENYING REHEARING AND

CERTIFYING FOR TRANSFER

TO COURT OF APPEAL

(Filed February 25, 1982)

The Petition for Rehearing is denied.

It is hereby certified that transfer of the herein case

to the Court of Appeal appears necessary to settle an im-

portant question of law, namely, whether the holding in

People v. Miller (1975) 52 Cal.App.3d 666, that failure to

preserve a retestable breath sample does not render In-

toxilyzer breath test results inadmissible, applies to a fact

situation in which at the time of testing the breath sample

on the Intoxilyzer, there was available to law enforcement

authorities a device which would have preserved a breath

sample for later testing, the Intoximeter Field Crimper-

Indium Tube Encapsulation Kit, which had been approved

by the Department of Health and stipulated to be finan-

cially and practicably feasible for the State to operate.

The Appellate Department of the Superior Court on

January 20, 1982, affirmed an order of the Municipal Court

denying defendant's motion to suppress. The basis of the

Appellate Department’s decision was that it was bound

by the holding of People v. Miller, supra, and dicta con-

tained therein.

Dated: February 24, 1982.

/8/ illegible,

Judge of the Superior Court

/8/ William B. Boone

Judge of the Superior Court

/s/ John J. Goethe

Judge of the Superior Court

J. FRED HALEY

Attorney at Law

One Kaiser Plaza

Oakland, California 94612

834-9977

MUNICIPAL COURT OF CALIFORNIA,

COUNTY OF CONTRA COSTA

Walnut Creek-Danville Judicial District

No. 31381

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff

GREGORY MOLLER WARD,

Defendant

NOTICE OF MOTION AND MOTION FOR

PRE-TRIAL DISCOVERY, ALTERNATIVE

MOTION TO EXCLUDE RESULTS OF

INTOXILYZER TEST

(Filed February 26, 1982)

TO WILLIAM A. O'MALLEY, DISTRICT ATTORNEY

OF CONTRA COSTA COUNTY, AND TO THE ABOVE

ENTITLED COURT:

PLEASE TAKE NOTICE that on February 26, 1981,

at 9:30 a.m., or as soon thereafter as the matter may be

heard, defendant's counsel will move the above entitled

Court for an order from said Court directing the District

Attorney to make available to defendant’s attorney for

examination, copying or testing any and all of the follow-

ing information, documents or other things in the pos-

session of said District Attorney or any of his employees,

agents, officers or deputies.

1. All notes, memoranda, whether handwritten or

typed, made by police officers or other investigating offi-

cers pertaining to their conversations with the defendant

on or about July 6, 1980 (other than the written police

report which is already in the possession of defendant’s

counsel).

2. Records of the maintenance of the intoxilyzer ma-

chine through which defendant’s breath sample was tested,

which records shall be limited to thirty days before and

after July 6, 1980 (17 Cal. Admin, Code, Section 1222.2).

3. Copies of permanent record or log book pertain-

ing to ealifration records for the intoxilyzer which was

used to test defendant’s breath sample, said records being

limited to the period of thirty days before and after July

6, 1980 (17 Cal. Admin. Code, Section 1222.2).

4. Copies of records of analysis of quality control

samples provided by a forensic alcohol laboratory for the

period of ten days before and after July 6, 1980, and the

name and qualifications of the operator who performed

the analysis of reference samples on the intoxilyzer which

tested defendant’s breath sample (17 Cal. Admin. Code,

Section 1221.4(a)(2)(A)).

5. If no quality control samples were analyzed within

ten days prior to July 6, 1980, then copies of records and

the dates of the first quality control samples analyzed prior

to July 6, 1980, and the records of the testing of unknown

samples thereafter up to and including twenty-five sam-

ples (17 Cal. Admin. Code, Section 1221.4(a)(2)(C)).

6. Copies ot any and all records of controlled experi-

ments performed on the intoxilyzer which tested the de-

fendant’s breath sample showing the correlation between

the subject’s breath sample and the blood sample taken

at the same time (17 Cal. Admin. Code, Section 1221.2(a)

(4)).

me Ace of defendant Gregory Moller Ward’s

breath Avhich was taken on July 6, 1980.

Defendant attaches hereto and incorporates herein as

Exhibit A the declaration under penalty of perjury of

Kenneth Dean Parker, toxicologist, of Hine Incorporated

in support of, and as an extension of, this motion.

IN THE ALTERNATIVE, under the assumption that

the California Highway Patrol did not preserve and re-

tain a sample of defendant’s breath which was subjected

to testing by the Walnut Creek Police Department’s in-

toxilyzer, defendant’s counsel herein will move the above

entitled Court to grant said counsel’s motion to exclude

the results of the intoxilyzer test in the above entitled

matter. Said motions will be made and based upon the

attached points and authorities, the declaration of Kenneth

Dean Parker attached hereto as Exhibit A, the declaration

of defendant Gregory Moller Ward, and upon such other

oral and documentary evidence as may be presented at

the hearing of this motion.

Dated: February 5, 1981.

J. FRED HALEY

Attorney for Defendant

POINTS AND AUTHORITIES RE MOTION

FOR DISCOVERY

Under criminal pre-trial discovery procedure, it has

been generally held that the defendant can compel the

prosecution to permit inspection and copying of all evi-

dence which can throw light on the issues of the case ab-

sent some governmental requirement that information be

kept confidential for the purpose of law enforcement.

Vance v. Superior Court, 51 C. 2d 92, 330 P. 2d 733.

The state’s obligation is not necessarily to convict, but

to see that so far as possible the truth of a case emerges.

No respectable interest of the state is served by conceal-

ing information which is material to the case. People v.

Riser, 47 C. 2d 566, 305 P. 2d 1.

The accused has the right, before trial, to examine

original notes made by officers concerning his oral state-

ments and further to inspect and copy any written state-

ments prepared from those notes. Funk v. Superior Court,

52 C. 2d 423 at 424, 340 P. 2d 593 (1959).

Records of the maintenance, calibration and analysis

of quality control samples with respect to the intoxilyzer

machine which tested defendant’s breath sample are clearly

relevant and material to this action inasmuch as the re-

sults from that intoxilyzer machine are the most critical

evidence in this case. A fortiori production of the pre-

served sample of defendant’s breath is necessary in order

to enable defendant to test the reliability and precision of

the intoxilyzer’s results.

POINTS AND AUTHORITIES IN SUPPORT

OF MOTION TO EXCLUDE RESULTS

OF INTOXILYZER TEST

On July 6, 1980, the defendant Gregory Moller Ward

was stopped by Officer R. K. English, Jr. of the Cali-

fornia Highway Patrol, 1.D. No. 8218, on suspicion of driv-

ing under the influence of aicohol. The defendant was

given a breath test by use of an intoxilyzer which pro-

duced a reading of .17 and .18.

This intoxilyzer, unlike other devices in use for test-

ing the alcoholic content of a suspect’s breath, had no

ampul which can be removed and preserved for later re-

testing. In the past, county law enforcement agencies

utilized the services of an institution known as Ultra Chem

Corporation in testing breath samples. That corporation’s

intoxilyzer had the ability to preserve such breath samples

and every defendant who chose this particular test was

given a written statement informing him that he was en-

titled to have the sample of his breath saved for purposes

of such retesting. Ever since the county law enforcement

agencies have taken over the operation of the intoxilyzer

aspects of blood alcohol measurement, there is no longer

any method by which a breath sample is or can be pre-

served.

It is significant to note that the alleged “drunk driver”

is not informed by the law enforcement authorities that

no sample of his breath will be retained for later testing

verification by a toxicologist of the alleged “drunk driver’s”

selection; whereas if he or she takes a blood or urine test,

such a sample will be retained. In most cases, and in this

case, the alleged “drunk driver” is encouraged and per-

suaded by the law enforcement authorities to take the

breath test. One explanation of such encouragement and/

or persuasion is that said law enforcement authorities

realize that with the breath test there can be no verifica-

tion. Like Ceaser’s wife, these law enforcement authori-

ties should be “above suspicion” on this critical subject.

Because the Walnut Creek Police Department’s in-

toxilyzer has no capability for preserving any sample of

defendant’s breath, no independent analysis of the defend-

ant’s breath could or can be made to determine whether

or not the machine was functioning properly or if the test

was accurate.

The intoxilyzer did not provide a sample which can be

retained for retesting defendant’s breath for its aleoholic

content and therefore People have made it impossible for

defendant to check the results of the test. The California

Supreme Court in People v. Hitch (1974) 12 C. 3d 641 at

652 have affirmed the right of the defendant to receive

a sample of his breath for retesting. The Court in that

case stated in pertinent part:

“As we have explained, the test ampoule, its contents

and the reference ampoule customarily used in the

test constitute material evidence on the issue of the

driver’s guilt or innocence of the charge of driving

a vehicle under the influence of intoxicating liquor,

We conclude that the investigative agency involved in

the test has a duty to preserve and disclose such evi-

dence.”

12 C. 3d 641 at 652, 117 Ca. Rptr. 9 (emphasis added).

More recently and in the case of People v. Nation, 26

C. 3d 169, the Supreme Court considered the prosecution’s

failure to preserve a sample of the defendant’s semen with

respect to charges for lewd and lascivious conduct on a

child, and whether or not this failure to preserve such a

sample deprived the defendant of his constitutional due

process rights. The Court, referring to People v. Hitch

(supra), affirmed the fact that the prosecution has an

obligation and duty to preserve such evidence, even in the

absence of a request for its preservation. The Court stated

in pertinent part:

“In People v. Hitch (citation), we held that the obli-

gation to disclose the existence of material evidence

places on the state a correlative duty to preserve such

evidence even without a request therefor, and directed

that in the future law enforcement agencies take rea-

sonable measures to ensure its adequate perserva-

tion.”

26 C. 3d 169 at 175 (emphasis added).

The thrust of defendant Nation’s appeal is identical

to that of defendant Ward here, that is, that if law en-

forcement agencies take or recover a sample, they have

a duty to take reasonable steps to preserve that evidence

and make it available to the defense. More importantly,

and inasmuch as the Supreme Court’s decision in Nation

utilized the principles in the Hitch case (which dealt with

a breath sample in a 23102a(a) case), the Nation decision

should be completely applicable to breath samples as well.

The Supreme Court in People v. Nation further indi-

cated that the imposition of such a duty not only protects

the due process rights of the defendant, but also society’s

interest in the integrity of the judicial system. The Court

stated:

“The duty to preserve critical evidence enhances the

reliability of the trial process. ... The duty of the

prosecution is not simply to obtain convictions, but

to fully and fairly present to the court the evidence

material to the charge.”

26 C. 3d 169 at 177.

Certainly the breath sample in the instant case is

the most “critical” evidence in the case. The results of

the intoxilyzer or the other blood alcohol tests impose a

heavy presumption against a defendant, a presumption

which, as this Court well knows, is difficult to overcome.

Therefore it would appear that the prosecution and law

enforcement agencies have a duty to take reasonable steps

to preserve and retain a defendant’s breath sample in

order to allow that defendant an opportunity to retest the

sample and scrutinize the accuracy of the intoxilyzer. Pres-

ervation and retention of such a sample cannot be con-

sidered unreasonable or an overbearing burden on the

prosecution in light of the fact that such preservation

and retention of breath samples were available previously

when county law enforcement agencies utilized the serv-

ices of Ultra Chem Corporation. Further, the defendant

requests the Court to take judicial notice of the testimony

of the expert which was presented in an identical motion

before this Court in the case of People v. Steven L. Haslam,

Case No. 29904-0, and the factual determinations made

thereon by the Honorable Joseph R. Longacre, Jr., in his

MEMORANDUM OF DECISION AND ORDER on that

case dated October 8, 1980. Judge Longacre, finding no

unreasonable burden upon law enforcement agencies to

preserve such breath samples, stated in pertinent part:

“... There has been and is now available on the open

market a crimping device, using an indium tube, which

can be adapted to the present breath testing for a cost

of approximately $200.00 a machine. Once the initial

cost is paid there is little if any upkeep thereon. The

crimping device was demonstrated to the court and it

is an exceedingly simple process in its operation. The

expert testified that the cost for collection of breath

sample approximates $7.00. The crimping device can

be used by police officer personnel and can be done

simultaneously with the testing that is now being ac-

complished by such personnel. The machine and meth-

od of operation are approved by the Department of

100

MEMORANDUM OF DECISION AND ORDER, Oc-

tober 8, 1980, Page 8.

Inasmuch as the Haslam case as well as the instant

case arise out of the same judicial district and concern

the same intoxilyzer, factual determinations made by Judge

Longacre set forth above are equally applicable to the cir-

cumstances of the instant case.

It is clear under the Hitch and Nation decisions that

due process requires that the defendant have a reasonable

opportunity to test the breath sample which will be used

against him. If the defendant is unable to test the breath

sample and therefore the accuracy of the machine which

will create a critical presumption against him, defendant’s

due process rights are effectively denied him. This denial

works a severe hardship on the defendant’s preparation

of his case and detrimentally effects the fundamental fair-

ness of any trial which follows.

Title 17, Article 6, Sections 1220 through 1225 of the

California Administrative Code appropriately comply with

the holding of the Hitch and Nation decisions. Those ad-

ministrative code sections direct the retention and preser-

vation of a blood or urine-sample which is tested to de-

termine the blood alcohol level of a defendant. By man-

dating the retention of such samples, a defendant’s due

process rights are kept intact. The defendant is afforded

the opportunity to further test the sample and thereby

determine the accuracy or inaccuracy of the test results

which will be used against him. There are no similar pro-

visions to protect the defendant’s due process rights by

mandating preservation of breath samples and therefore

the above referred to sections, 1220 through 1225, do not

comply with the holding in the Hitch and Nation decisions.

101

The California Legislature, through Section 23126 of the

Vehicle Code, gives equal weight to the results of any

breath, blood or urine tests administered to a defendant

for purposes of establishing the presumption of intoxi-

cation. However, the defendant is denied any real ability

to combat the test which generates that presumption should

he have the uninformed misfortune of selecting an intoxi-

lyzer to measure his blood alcohol level.

The defendant in the instant case, by selecting the in-

toxilyzer with the “help” of the law enforcement authori-

ties, made the retesting of his breath sample impossible

and any rights which the defendant had to scrutinize the

authenticity and accuracy of the test results were sum-

marily abolished. Therefore the introduction of the re-

sults of this intoxilyzer test into evidence would constitute

a denial of the defendant’s right to due process.

It is respectfully submitted that we are dealing here

with a critical and extremely important privilege, i.e., the

right to drive a vehicle upon the public highways of the

State of California. The Court can suspend that essential

privilege on a first conviction and it will necessarily be

suspended for one year on a second conviction within five

years. These suspensions are binding even against driv-

ing to and from employment. Therefore the Court here

is sitting in judgment on an issue which strikes at the

essence of our society’s basic social unit, the family. With-

out a wage earner and without income, the family cannot

survive or will have great difficulty in surviving without

public assistance. Therefore this Court should take a very

careful look at all the ramifications of this breath test

without preservation of a verification sample and should

insist, where so much is at stake in so many of these cases

‘

102

in the way of economic impact, that the same protections

of fairness be afforded the driver who takes the breath

test as the driver who takes the blood or urine test.

Propably the explanation for why Title 17 of the Cali-

fornia Administrative Code does not provide for reten-

tion of the breath test sample is that at the time of the en-

actment of Sections 1220 through 1225 of Seetion 7 there

was no adequate equipment to capture and retain a sam-

ple, but that is no longer the case, and this inequity should

be “set right” by this Court.

Since it is within the discretion of the trial court to

exclude such test results, the defendant respectfully moves

this Court to exclude the results of the intoxilyzer from

the evidence presented at the trial in this matter.

Dated: February 5, 1981.

J. FRED HALEY

Attorney for Defendant

EXHIBIT A

HINE INCORPORATED

357 Tehama St., San Francisco, California 94103 (415-

777-2210), mailing address: P.O. Box 7604 Rincon Annex,

San Francisco, CA 94120

2 December 1980

Mr. J. Frederick Haley

Attorney at Law

Ordway Building—One Kaiser Plaza

Oakland, CA 94612

103

RE: People v. Gregory M. Ward

DOA: 7/6/80 Municipal Court #31381

Our File: MLA-3906

Dear Mr. Haley:

Reference is made to your letters dated 24 October, 24

November 1980 and our consultations and conversations

which followed in the above captioned matter. Based upon

my preliminary review of facts in the case and consulta-

tions had with you for preparation for expert witness tes-

timony from the toxicological point of view, I offer the

following in declaration form:

Records show that an Intoxilyzer breath test of sub-

ject’s breath was made for determination of forensic

blood alcohol value. The breath samples and analyzed

by the Intoximeter were discarded following the non-

destructive test performed according to usual proce-

dures. Additional breath samples from the accused

were not taken and retained to be made available for

independent defense testing for determination of ac-

curacy and reliability of the alleged forensic blood

alcohol value obtained by the prosecution’s test.

Such procedures for collection and retention of sub-

ject’s breath for later testing by defense can be per-

formed using the California Department of Health ap-

proved Indium tube crimper device which provides for

the encapsulation of breath samples for retention of

items of breath to become evidence. Such a device

has been used by Contra Costa County in the past for

collection and preservation of breath evidence

samples.

104

Preliminary review of records and certain facts in the

case show a considerable and significant disparity be-

tween the alleged blood alcohol valwe for defendant

from prosecution's Intoxilyzer test and other categor-

ies of facts including calculation of blood alcohol from

drinks consumed, field sobriety test performance, driv-

ing of the vehicle, general demeanor and outward im-

pression of accused. In order to resolve this disparity

in the facts I need to have a sample of subject's breath

for testing to effectively participate as a toxologist

in the preparation of this case with the attorney for

trial.

Even though a breath sample is not available for test-

ing and is essential for effective evaluation of the case

in my opinion it would be essential that certain ree-

ords and samples bearing on the prosecution’s In-

toxilyzer test results be made available for review.

These should include water alcohol reference control

samples (Simulator an: Calibration Standards) used

for periodic testing of the Intoxilyzer instrument and

the Simulator Calibration solution used for defend-

ant’s test, copy of records of preventive maintenance

for the Intoxilyzer machine used, results of periodic

calibration and testing of Intoxilyzer, records of serv-

ice and preventive maintenance for Intoxilyzer, notes

and laboratory results and records of preparation of

water alcohol calibration solutions used in quality as-

surance program, copy of records of quality assur-

ance procedures, copy of records of training and cer-

tification for operator of Intoxilyzer for defendant’s

test, records of results of Department of Health Alco-

105

hol Check Samples periodically issued and tested for

licensing of forensic alcohol laboratory, copy of rec-

ord showing test results for subject and checklist of

performance of test and calibration negative and posi-

tive controls.

Without the receipt of the foregoing discovery I am

unable to participate effectively as a technical consult-

ant as to toxicological aspects and preparation of the

case with you. This is of particular importance and

concern to me as there was not retained a sample of

subject’s breath so that the correctness of the blood

alcohol value can be checked as to correctness by re-

testing the retained breath sample. This situation

allows an item (samples of subject’s breath) taken to

become evidence in the case to be used by the prose-

cution consumed by the prosecution and then the re-

sults used unverified at the time of trial as evidence.

If you have any questions about the information provided

please advise me accordingly.

I declare under penalty of perjury that the foregoing is

true and correct. Executed on 2 December 1980 at San

Francisco, California.

/s/ Kenneth Dean Parker

Very truly yours,

/s/ Kenneth Dean Parker

M. Crim., D-ABFT

Toxicologist/Criminalist

106

“EXHIBIT B”

J. FRED HALEY

Attorney at Law

One Kaiser Plaza

Oakland, California 94612

834-9977

No. 31381

MUNICIPAL COURT OF CALIFORNIA,

COUNTY OF CONTRA COSTA

WALNUT CREEK—DANVILLE JUDICIAL DISTRICT

PEOPLE OF THE STATE OF CALIFORNIA,

Plawitiff

VS.

GREGORY MOLLER WARD,

Defendant

DECLARATION OF GREGORY MOLLER WARD

I, GREGORY MOLLER WARD, defendant herein, de-

clare:

On or about July 6, 1980, I was arrested by Officer

R. K. English, Jr. of the California Highway Patrol for

an alleged violation of Vehicle Code §23102a. Upon ar-

rest I was transported by the arresting officer to the Wal-

nut Creek Police Department, where I was given a breath

test to determine intoxication. The breath test was admin-

istered by Officer G. Chellew of the California Highway

Patrol.

At no time prior to being given the breath test was I

offered any option of taking either a breath, blood or urine

test to determine intoxication. I was merely given the

breath test without being offered a choice of either of the

other two tests.

107

At no time prior to being given the breath test was I

informed that a sample of my breath would not be re-

tained for future retesting by a toxicologist of my selec-

tion. Neither was I informed, since I was not given the

choice of taking a blood or a urine test, that if I was

given one of those two tests a sample of my blood or urine

would be retained for future retesting by a toxicologist of

my selection.

Had I known that a sample of my breath would not

be retained for future retesting and verification, whereas

a sample of my blood or urine would be so retained, I

would have requested that I be given either a blood or a

urine test rather than a breath test.

I do not believe that at the time of my arrest on July

6, 1980, I was under the influence of aleohol to such an

extent that it impaired my ability to drive an automobile.

I hereby declare under penalty of perjury that the

foregoing is true and correct.

Executed on February 10, 1981, at Lafayette, Cali-

fornia.

/s/ Gregory Moller Ward

WILLIAM A. O'MALLEY

District Attorney

County of Contra Costa

Deputy District Attorney

1957-C Parkside Drive

Concord, California 94520

671-4335

108

No. 31381-7

IN THE MUNICIPAL COURT OF THE STATE OF

CALIFORNIA, COUNTY OF CONTRA COSTA

WALNUT CREEK—DANVILLE JUDICIAL DISTRICT

PEOPLE OF THE STATE OF CALIFORNIA

vs.

GREGORY WARD,

Defendant.

MOTION FOR DISCOVERY

Discovery in the above entitled case is hereby re-

quested as to all evidence relating to the Intoxilyzer used

to determine the defendant’s blood alcohol concentration.

Dated: 26 Feb. 81

/s/ J. Fred Haley

Defense Attorney

No. 25592 (Trial Court No. 29684-8)

25616 30410-5

25617 30226-5

25717 31381-7

25718 32153-9

IN THE SUPERIOR COURT OF THE STATE

OF CALIFORNIA

IN AND FOR THE COUNTY OF CONTRA COSTA

APPELLATE DEPARTMENT

109

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff & Respondent

Vs.

GALE BERNELL BERRY,

RICHARD GLEN LARSON,

GREGORY MOLLER WARD,

Defendants & Appellants

ORDER

(Filed December 4, 1981)

Judgments of conviction in the above-entitled matters,

made and entered in the Municipal Court of the Walnut

Creek-Danville Judicial District, are affirmed.

The Court, on its own motion, hereby certifies the

above-entitled cases to the Court of Appeal for the fol-

lowing reasons:

1. The issue of equal protection of laws as applied

to the intoxilyzer machine, which does not preserve a

breath sample for subsequent testing, has not heretofore

been decided.

2. The Supreme Court of Colorado in the case of

Garcia v. The District Court, 589 P.2d 924, has ruled that

a defendant must be given a separate sample of his

breath test if that test is to be used in evidence.

110

3. A possible review of People v. Miller, 52 CA3d

666, in light of the arguments made in the brief; and

4. The great importance of a resolution of this issue

in view of the new legislation relating to driving under

the influence.

/s/ MARTIN E. ROTHENBERG,

Presiding Judge.

/s/ WAYNE A. WESTOVER,

Judge,

/s/ NORMAN SPELLBERG,

Judge.

I, J. R. OLSSON, County Clerk and Clerk of the Su-

preme Court of the State of California, in and for the

County of Contra Costa, do hereby certify that the fore-

LOIN is a true COPY Of the occ original judg-

ment entered by said Court in the above entitled cause

on the .......... ae % Sees , and now remaining of

record in this Court.

OFFICE OF THE CLERK

Court of Appeal

State of California

FIRST APPELLATE DISTRICT

CLIFFORD C. PORTER, Clerk

May 14, 1982

DEPUTIES

Richard J. Eyman, Chief Deputy

Roy F. Lippi

111

Leo A. Weissmann

Walter McAdam

Betty Kavanagh

R. D. Barrow

D. J. Gulliford

Penny Lawrence, Secretary

SAN FRANCISCO 94102

4154 State Building

Civie Center

557-1896

J. Frederick Haley

Attorney at Law

One Kaiser Plaza

Oakland, California 94612

Charles C. Kirk

Deputy Attorney General

6000 State Building

San Francisco, California 94102

Re: Case No. A017265 (1/Crim. 23779)

In re Ward on Habeas Corpus

Division Four

Dear Counsel: m

The Court has directed me to invite counsel to

submit letter briefs indicating whether the trial

record in this case, or judicially noticeable materials,

provide answers to the following questions:

112

(1) Is it feasible to require breath samples to be

pre-useful results?

(2) Would later testing of such a sample yield

useful results?

The pertinence of these questions lies in their

relation to a possible duty to preserve a breath

sample when an intoxilyzer is used. See People v.

Hitch (1974) 12 Cal.3d 641.

Your responses should be received by June 1,

1982,

Very truly yours,

/s/ C. Porter

Clerk

113

JOHN A. PETTIS

Attorney at Law

1034 Court Street

Martinez, CA 94553

Telephone: (415) 229-0900

Attorney for Defendant

No, 29684-8

MUNICIPAL COURT OF CALIFORNIA

COUNTY OF CONTRA COSTA

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

GALE BERNELL BERRY,

Defendant.

MOTION FOR DISCOVERY

Date: 9/18/80

Time: 9:30 a.m.

Dept. 2

(Filed September 5, 1980)

This Motion is directed not only to the District Attor-

ney of Contra Costa County but to all law enforcement

officers, agents, agencies, bureaus, departments, employ-

ees and attorneys prosecuting the above-entitled action

(hereinafter collectively called the “PEOPLE”). Defen-

dant will move for an Order requiring the PEOPLE to

do as follows:

114

Supply the defendant’s attorney with one (1) copy

(by Xerox reproduction, or other method of comparable

quality) of each of the following:

A complete set of engineering drawings, plans,

and specifications of the Omicron Intoxilyzer

such as was used to test the alcoholic content of

the defendant’s breath on the night the incident

occurred.

The serial number and date of manufacture, to-

gether with the date of delivery, to the Walnut

Creek Police Department of the Omicron Intoxi-

lyzer unit in question.

The full corporate name and address of the

manufacturer of the intoxilyzer unit in question.

Copies of all printed or written test and research

data submitted by the manufacturer of the instru-

ment to the Department of Justice, the Depart-

ment of Health, and/or the Department of Gen-

eral Services, or to the criminal investigation di-

vision of the State of California or the Attorney

General’s Office or the District Attorney of the

County of Contra Costa which pertain to the

workings, specificity, selectivity, or accuracy of

the machine in question, including but not limited

to scientific and mechanical data.

Any data of similar ind now in the possession

of any agency as set forth above which is in the

possession or under the control of said agency, but

which was not submitted by the manufacturer

of the machine, but which was either independent-

ly gathered by said agency or submitted by par-

ties other than RW BTR: of the instrument.

A copy of the complete maintenat:e history of

the Omicron Intoxilyzer in question.

115

G. The complete text of copies of any directive no-

tice or bulletin, or item of a similar type, as is-

sued to the using agencies by any of the above

manufacturer of the instrument involved.

H. A copy of the instruction manual as supplied

with the particular instrument in question, to-

gether with copies of each other instruction man-

ual that has been supplied by the manufacturer

of the machine or by any governmental agency

involved prior to or subsequent to the issuance

of the manual as delivered together with the

machine.

I, The results and all supporting data related

thereto now in the possession or under the con-

trol of any governmental agency as mentioned

above herein of any comparative tests between

the Omicron Intoxilyzer and any other breath-

testing machine.

J. The results of each and every breath test as run

on the Omicron Intoxilyzer now in the posses-

sion of the Walnut Creek Police Department be-

tween the dates of December 30, 1980 to the

present.

2. Allow the defendant’s attorney to examine any

real evidence relevant to this case not mentioned above

which is in the possession of, or subject to the control of

the PEOPLE.

3. To allow defendant’s attorney and defendant’s

expert witnesses access to the Omicron Intoxilyzer instru-

ment now in the possession of the Walnut Creek Police

Department upon the giving of 48 hours notice for the

purpose of examining and testing said machine as against

the plans and specifications as set out by the manufac-

116

turer, said inspection to be carried out between the hours

of 8:00 a.m. and 5:00 p.m. Monday through Friday, ex-

cluding holidays therefrom, with an expert from the De-

partment of Justice present.

4. Provide the names and addresses of all witnesses,

particularly expert witnesses, who will testify at trial

as to the conduct, results or interpretation of the breath

analysis tests performed on defendant.

5. Provide the original air sample taken from the

defendant, the original reference sample, and the dis-

posable sanitary mouthpiece/saliva trap used in the test-

ing of the defendant.

6. Any and all records, documents, notations, mem-

oranda, papers, and records relating to the installation,

maintenance, calibration, and repair of the Omicron In-

toxilyzer in use by Walnut Creek Police Department on

January 16, 1980 (number unknown) from December 1,

1979 to March 31, 1980,

7. Any and all records, documents, notations, mem-

oranda, papers and records relating to the installation,

maintenance, calibration, and repair of the Omicron In-

toxilyzer in use by Walnut Creek Police Department on

Janua

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