Petitioners Brief — California v. Trombetta
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No. 83-305
In The = neem
Supreme Court of the United Staten
October Term, 1983
THE PEOPLE OF THE STATE OF CALIFORNIA,
Petitioner,
wa
ALBERT WALTER TROMBETTA, et al..
Respond: nis,
2)
ON WRIT OF CERTIORARI TO THE
CALIFORNIA COURT OF APPEAL,
FIRST APPELLATE DISTRICT
BRIEF FOR PETITIONER
4)
JOHN K. VAN DE KAMP
Attorney General
WILLIAM D. STEIN
Assistant Attorney General
GLORIA F. DE HART
Deputy Attorney General
CHARLES R. B. KIRK
Deputy Attorney General
6000 State Building
San Francisco, CA 94102
Telephone: (415) 557-3944
Attorneys for Petitioner
COCKLE PRINTING CO., 2311 Douglas St. Omaha 68102
QUESTIONS PRESENTED
(1) Does a duty to preserve evidence under federal due
process forbid the use in a drunk driving case of a
breath testing machine which automatically expels
and thus destroys the breath sample during the test
process?
(2) Does a duty to preserve evidence under federal due
process compel law enforcement to gather evidence
for use of the defendant?
ii
PARTIES TO PROCEEDING
The California Court of Appeal consolidated four sep-
arate cases in this proceeding, all of which involved drunk-
driving prosecutions. In addition to respondent Trombetta
(No. A016358), the decision affects Michael Gene Cox (No.
A016374), Gregory Moller Ward (No. A017265), and Gale
Bernell Berry (No. A017266). The Cox case (No. A016374)
was itself a consolidated case which involved, in addition
to Cox, Thomas Nelson Muldoon, Clinton James Brown,
Densel Lee Furner, Patricia Jane Keeffe, Herbert John
Berreyessa, and James K. Schneider.
ili
TABLE OF CONTENTS
Pages
Qustions Presented ................ ‘ je
Parties to Proceeding occ cccccccocmssmnmnnmonnnn ii
Table of Cases ii
COMICS TBI. sicsnsitsacesnsiitcnineconinateabittenigunatenedan 1
Jurisdiction ....... ; ates
Constitutional Provision Involved ...... 2
beeen: 0 Ae CRI icici iinssisscssidnrlaanapacmipatiaaaaie 3
Procedural Background 00.0.0 ccmenn. tes 3
WF IOUDD riscchnesdicosnehchionssoneanspaslapuinesioaies tameahadinia ao eae
mumiers of Arent oo eee -
Argument:
I. The Constitution Requires Neither Preservation
Of Nor Prosecution With Physical Evidence. ..... 9
II. There Has Been No Violation Of Any Brady
Standard. 21
Conclusion . . 28
TABLE OF CASES
Augenblick v. United States (Ct. Cl. 1967) 377
F.2d 586 12, 25
Baca v. Smith (Ariz. 1980) 604 P.2d 617 200 =—-10
Bergenthal v. Cady (7th Cir. 1972) 466 F.2d 635,
cert. den., 409 U.S. 1109 24
Brady v. Maryland (1963) 373 U.S. 83 WWW... passim
Brake v. State (Mo. 1970) 460 S.W.2d 639 00000000.)=«12
Brown v. Municipal Court (1978) 86 Cal.App.3d
357, 150 Cal.Rptr. 216 19, 20
City of Seattle v. Fettig (Wash. 1974) 519 P.2d
1002 10
iv
TABLE OF CASES—Continued
Pages
D’Aquino v. United States (9th Cir. 1951) 192 F.2d
eg Se RP eee ne 13, 23, 24
Edwards v. Oklahoma (D.Okla. 1976) 429 F.Supp.
Ng aE aE EO Fai ren 2 23, 24, 25, 28
Edwards y. State (Okla.Crim.App. 1976) 544 P.2d
er ee a ERE ae 25
Fields v. Alaska (9th Cir. 1975) 524 F.2d 259 00000... oo
Garcia v. District Court, 21st Jud. Dist. (Colo.
1979) 589 P.2d 9264 ......... 10, 27
Gedicks v. State (Wis. 1974) 214 N.W.2d 569 200... 13, 14
Giglio v. United States (1971) 405 U.S. 150 ow. 10
In re Howard (1962) 208 Cal.App.2d 709, 25 Cal.
Rptr. 590 20
In re Koehne (1960) 54 Cal.2d 757, 8 Cal.Rptr.
435 eral 19
In re Martin (1962) 58 Cal.2d 509, 24 Cal.Rptr.
833 19
Kephart v. Richardson (3d Cir. 1974) 505 F.2d 1085 ..... 20
Killian v. United States (1961) 368 U.S. 231 0000000. «©6024
Lauderdale v. State (Alaska 1976) 548 P.2d 376... 10
Lebron v. United States (1st Cir. 1957) 241 F.2d
885, cert. den., 354 U.S. 911 ao Lae
Lee v. State (Alaska 1973) 511 P.2d 1076 20000000. «18
McCormick v. Municipal Court (1961) 195 Cal.
App.2d 819, 16 Cal. Rptr. 211 ........ 19
McGautha v. California (1971) 402 U.S. 183 20000. 17
Michigan v. Tucker (1974) 417 U.S. 433 17
Montoya v. Metropolitan Court (N.M. 1982) 651
P.2d 1260 _... 27
v
TABLE OF CASES—Continued
Pages
Mooney v. Holohan (1935) 294 U.S. 103 11
Moore v. Depsey (1923) 261 U.S. 86 12, 23
Moore v. Illinois (1972) 408 U.S. 783 9, 21
Munich v. United States (9th Cir. 1966) 363 F.2d
859, cert. den., 386 U.S. 974 ............. 14
Norris v. Slayton (4th Cir. 1976) 540 F.2d 1241 .......... - &
Partain v. State (Ga. 1978) 232 S.B.2d 46 coco 14
People v. Ashton (Ill. App. 1974) 309 N.E.2d 285 ........... 13
People v. French (1978) 77 Cal.App.3d 511 00. “a.
People v. Harmes (Colo. App. 1980) 560 P.2d 470 .......... 10
People v. Harris (1976) 62 Cal.App.3d 859 ow. 24
People v. Hitch (1974) 12 Cal.3d 641, 527 P.2d
361 9, 20, 23, 25, 26
People v. LePree (Rochester City Ct. 1980) 430
N.Y.S.2d 778
People v. Manson (1977) 71 Cal.App.3d 1, 139
Cal. Rptr. 275, cert. den., 435 U.S. 953 13
People v. Miller (1975) 52 Cal.App.3d 666, 125
Cal.Rptr. 341 passim
People v. Reed (Ill. App. 1981) 416 N.B.2d 694 0 27
People v. Santiago (Sup. Ct., N.Y. Co.) 455 N.Y.S.
2d 511 25
People v. Scott (1959) 176 Cal.App.2d 458, 1 Cal.
Rptr. 600, cart. den., 364 U.S. 471 13
People v. Shafer — 101 Cal.App.2d 54, 224
P.2d 778 12, 13
People v. Stark (Mich.App. 1977) 251 N.W.2d 574. 25
People v. Superior Court (Seott) (1980) 112 Cal.
App.3d 602, 169 Cal. Rptr. 412 19
vi
TABLE OF CASES—Continued
Pages
People v. Vick shintiel 11 Cal. seal 3d 1058, 90 Cal.
NN CE ence hiinanlapmlneieicat samen ae
Pointer v. United States (1894) 151 U.S. 396 00000... oe
Riley v. Sigler (8th Cir. 1971) 437 F.2d 258 on. 24
St. Clair v. United States (1894) 154 U.S. 134 —...13, 14, 21
State v. Armstrong (Fla. App. 1978) 363 So.2d 38 .......... 13
State v. Atkins (Fla. App. 1979) 369 So.2d 389 000... 22
State v. Brown (Ia. 1983) 337 N.W.2d 507 occ 10
State v. Bryan (N.J. Super. 1974) 336 A.2d 511 ........ - 2
State v. Burns (Conn. 1977) 377 A.2d 1082.13, 18
State v. Canady (Wash. 1978) 585 P.2d 1185 00. 25
State v. Carlson (Minn. 1978) 267 N.W.2d 170 .............. 13, 22
State v. Cloutier (Me. 1973) 302 A.2d 84 oon in <a
State v. Cornelius (N.H. 1982) 452 A.2d 464 200. 19
State v. Cruz (Ariz. App. 1979) 600 P.2d 1129 00 13, 18
State v. Gaddis (Tenn. 1975) 5380 S.W.2d 64 0... 13, 22
State v. Havas (Nev. 1979) 601 P.2d 1197 wo 10
State v. Helmer (S.D. 1979) 278 N.W.2d 808 00000000. . 5
State v. Herrera (Fla.App. 1979) 365 So.2d 399 13
State v. Larson (N.D. 1981) 313 N.W.2d 750 25, 28
State v. Lee (Fla.App. 1982) 422 So.2d 76 0. 26
State v. Lightle (Kan. 1972) 502 P.2d 834 00000. i ae
State v. Lovato (N.M. App. 1980) 617 P.2d 169 ...... 10
State v. Michener (Or. App. 1976) 550 P.2d 449 ... 10
State v. Newton (S.C. 1980) 262 S.E.2d 906 25, 28
.
TABLE OF CASES—Continued
Pages
State v. Phillipe (Fla. App. 1981) 402 So.2d 38 .......... 25, 28
State v. Shaw (Conn. 1981) 441 A.2d 561 24
State v. Shutt (N.H. 1976) 363 A.2d 406 20. 25
State v. Sprout (Mo. 1963) 365 S.W.2d 572 0000000. ._ 14
State v. Teare (N.J. Super. 1975) 342 A.2d 556 ......... . 2
State v. Watson (Ohio App. 1975) 355 N.E.2d 883 ..... 25
State v. Young (Kan. 1980) 614 P.2d 441 0000... 15, 18, 19
Stipp v. State (Fla. App. 1979) 371 So.2d 712 ................ 13, 22
Turpin v. State (Tex. Crim. App. 1980) 606 S.W.
2d 907 . 25
United States v. Agurs (1976) 427 U.S. 97 WW... 11, 24
United States v. American Radiator & Standard
Sanitary Corp. (3d Cir. 1970) 433 F.2d 174, cert.
den., 401 U.S. 948 ...... 23, 25
United States v. Angello (2d Cir. 1971) 451 F.2d
BE oes 23
United States v. Augenblick (1969) 393 U.S. 348 ........ 8,11,
14, 18, 96
URited States v. Balliviero (5th Cir. 1983) 708
F.2d 984
United States v. Brumley (10th Cir. ibe 466 F.2d
911, cert. den., 412 U.S. 929 13, 18, 24
United States v. Bryant (D.C. Cir. —? 439 F.2d
642 oe 10, 23, 25
United States v. Cochran (5th Cir. 1983) 692 F.2d
600 14
United States v. Gilbert (No. 15,204) 235 Fed.
Cas. 1287 21, 25
eee
a
TABLE OF CASES—Continued
Pages
United States v. Griffin (9th Cir. 1982) 659 F.2d
ENTREE ial pee See eA es Se 24
United States v. Herndon (5th Cir. 1976) 536 F.2d
1027 1S Aone 13
United States v. Hoppe (8th Cir. 1981) 645°-F.2d
a Le a ee 25
United States v. Loud Hawk (9th Cir. 1979) 628
F.2d 1139, cert. den., 445 U.S. 917 ooccccnsommnmnnnn 14, 17, 24
United States v. Love (5th Cir. 1973) 482 F.2d 213... 22
United States v. Ortiz_(9th Cir. 1979) 602 F.2d 76 ....14, 18,
26
United States v. Pullings (7th Cir. 1963) 321 F.2d 287 14
United States v. Sewar (9th Cir. 1972) 468 F.2d
236, cert. dem., 410 U.S. QUG nnneniceeseceosssrrseesesreeesrememnee by 18, 25
United States v. Shafer (7th Cir. 1971) 445 F.2d 579 14
United States v. Traylor (9th Cir. 1981) 656 F.2d
1326 13, 17, 18
United States v. Wilks (10th Cir. 1980) 629 F.2d
669 FE
Ware v. United States (8th Cir. 1958) 259 F.2d
ee a a 12, 13
Williams v. Wolf (8th Cir. 1973) 473 F.2d 1049 .0000..)=«(24
TEXTS, STATUTES & AUTHORITIES
United States Constitution, Fourteenth Amendment,
$1 2
United States Code, Title 18, § 3500 12
United States Code, Title 28, 4 1257(3) 2
17 Cal. Adm. Code, § 1221.1(a)
ix
TEXTS, STATUTES & AUTHORITIES—Continued
Pages
17 Cal. Adm. Code, § 1221.2 .. 6
17 Cal. Adm. Code, § 1221.3(¢) 6
17 Cal. Adm. Code, § 1221.3(d) 6
17 Cal. Adm, Code, § 1221.3(1) neceoccme 6
5
20
17 Cal. Adm. Code § 1221.4(a) (1)
California Evidence Code, § 664
California Health & Safety Code, § 436.50 oT
California Health & Safety Code, $436.51 WW... 6
California Rules of Court, Rule 62 Wi. 3
California Rules of Court, Rule 63(a) ou. «= 8
California Vehicle Code, § 13353(a) 6
California Vehicle Code, § 13353.5 20, 2
California Vehicle Code, § 13354(b) 19, 23
California Vehicle Code, § 23102 3
California Vehicle Code, § 23126(a) (3) 5
California Vehicle Code, § 23152(a) 3
California Vehicle Code, § 23155(a) (3) 5
Advisory Committee on Alcohol Determination,
Department of Health, Notes of Meeting of Au-
gust 31, 1982, p. 29 27
Final Report, Presidential Commission on Drunk
Driving (Nov. 1983) p. 17 5
Summary of Activities Relating to Evaluation of
Instruments and Related Accessories for Breath
Alcohol Analysis, California Department of
Health (Report No. 2, Feb. 1974), Table 10,p.5. 6
22 J. Forensic Science 486 (1977) 25
No. 83-305
ray
In The
Supreme Court of the United States
October Term, 1983
ry
\
THE PEOPLE OF THE STATE OF CALIFORNIA,
Petitioner,
Vv.
ALBERT WALTER TROMBETTA, et al.,
Respondents.
nw
ON WRIT OF CERTIORARI TO THE
CALIFORNIA COURT OF APPEAL,
FIRST APPELLATE DISTRICT
ray
Vv
BRIEF FOR PETITIONER
ra
Les
OPINIONS BELOW
The opinion filed by the Court of Appeal on March
28, 1983, is reported at 141 Cal. App. 3d 400. This opin-
ion was substantially modified on April 27, 1983, and the
opinion as modified was ordered republished in its en-
tirety, appearing at 142 Cal. App. 3d 138, 190 Cal. Rptr.
319. Both opinions are contained in the Appendix (J.A.,
pp. 137, 150).
2
JURISDICTION
On March 28, 1983, the California Court of Appeal
for the First Appellate District filed its opinion dismiss-
ing appeals taken by two groups of defendants! and grant-
ing writs of habeas corpus as to two other groups. The
opinion also established a rule binding upon future
breath alcohol testing by agencies enforcing California’s
drunk driving laws. On April 27, 1983, a petition for
rehearing was denied, and a substantially modified ver-
sion of the original opinion was filed. On June 23, 1983,
the California Supreme Court denied the People’s peti-
tion for a hearing.
On July 1, 1983, the Court of Appeal issued an order
staying issuance of the remittitur through August 30,
1983, to permit the People to file a petition for certiorari
in this Court. The stay was extended indefinitely by an
order filed on August 31, 1983.
The jurisdiction of this Court is invoked under Title
28, United States Code, section 1257(3).
ts.
_
CONSTITUTIONAL PROVISION INVOLVED
The case involves interpretation of the due process
clause of section 1 of the Fourteenth Amendment to the
Constitution, which provides, insofar as pertinent, that:
these appeals were dismissed on technical
grou ion is specifically applicable to the defend-
ants who brought the appeals, none of whom have yet been
tried charges.
**No State shall make or enforee any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any
person of life, liberty, or property, without due pro-
cess of law... .”’
Bee
Ww
STATEMENT OF THE CASE
Procedural Background
All of these cases involve efforts by defendants
charged with violation of California’s drunk driving laws
to suppress the results of breath alcohol tests ebtained
on an Intoxilyzer machine. Each respondent was ar-
rested and charged with driving while under the in-
fluence of alcohol; respondent Ward being charged with
two separate offenses.’ Before trial, each filed a motion
seeking suppression of breath-test results on the ground
that the breath sample had not been preserved. All of
these motions were denied.
Ward and Berry submitted their cases on the police
reports and were convicted. Execution or imposition of
sentence was stayed for each pending appeal to the Ap-
pellate Department of the Contra Costa County Superior
Court, which affirmed their convictions but certified their
consolidated cases to the California Court of Appeal.’
When a division of the Court of Appeal declined transfer,
each filed a petition for a writ of habeas corpus in the
2. Former California Vehicle Code, § 23102; now § 23152(a).
3. “The superior court on ication of a party or on its own
ote ee ofa aan ode tat an
.
4
California Supreme Court. That court issued an order
to show cause returnable before a different division of
the Court of Appeal.
Neither Trombetta nor Cox have yet been tried.
The Trombetta motion was denied after an evidentiary
hearing, and an appeal was taken to the Appellate De-
partment of the Sonoma County Superior Court. It was
stipulated that the hearing in Trombetta could be con-
sidered in Cox’s similar appeal. The denial of their mo-
tions was affirmed, but the Appellate Department cer-
tified ses to the Court of Appeal, a division of
ransfer. All four cases were thus in the
e consolidated.
same division a
The Court of Appeal filed its first opinion on March
28, 1983 (Trombetta I). A petition for rehearing was de-
nied on April 27, 1983, but in denying the petition the
prior opinion was substantially modified (Trombetta II).‘
The California Supreme Court denied a petition for
hearing on June 23, 1983.
4. When confronted with the prior authority of People v. Mill-
er (1975) 52 Cal. App. 3d 666, 125 Cal. Rptr. 341, in Trombetta /|
the Court of Appeal “distinguished” it on the basis that since
that decision “new technology’’—specifically the indium tube
—had been developed which now permitted breath-sample
preservation. Trombetta |, 141 Cal. App. 3d at pp. 405-406. Al-
though realizing that silica gel tube retention devices were not
approved in California, the court also referred to their use in
Colorado and opined that if approved by the California De-
partment of Health, these too might be acceptable. /d., at p.
406. On petition for rehearing, the State pointed out that a sil-
ica gel device had been tested in 1971 and again in 1974 and
failed all Department of Health tests, while the “new” indium
tube had been approved since 1974, more than a year before
Miller was decided. (Pet. for Reh., pp. 8-9.) In Trombetta II,
eens 2 ae ene ware eee, one He
Court of tee flatly disagreed Miller's in ion of
what const " " Trombetta Il, 142 Cal. App. 3d
138, 143-144, 190 Cal. Rptr. 319, 322.
5
Although the Court of Appeal held that an appeal
to the Appellate Department of the Superior Court was
not available before trial, it nevertheless applied its
decision to Trombetta and Cox who have yet to be tried.
Trombetta II, 142 Cai. App. 3d at 140, 144, 190 Cal. Rptr.
at 320, 323. The decision therefore acts as an order sup-
pressing evidence in these two groups of cases.
In the Ward and Berry cases, the defendants had
already been convicted of drunken driving and brought
writs of habeas corpus in the Court of Appeal challeng-
ing their convictions. The decision orders new trials for
these defendants at which trials evidence of the breath-
test results will be excluded. Trombetta II, 142 Cal. App.
3d at 145, 190 Cal. Rptr. at 323.
Facts
Respondent Berry was arrested for drunk driving
on January 16, 1980, near Orinda, California, and given
two breath tests on an Intoxilyzer, resulting in two read-
ings of his blood-alcohol concentration (BAC) at a level
of .20.5 Ward was first arrested for drunk driving on
July 6, 1980, near Orinda and given two breath tests on an
Intoxilyzer, resulting in BAC readings of .18 and .17. On
September 20, 1980, Ward was again arrested for drunk
driving in the neighboring town of Moraga and tested on
the Intoxilyzer, resulting in BAC readings of .26 and .25.
Cox was arrested for drunk driving on December 12,
5. California law requires two breath tests which must a
by +/— .02. 17 Cal. Adm. Code § 1221.4(a) (1); see v.
French (1978) 77 Cal. App. 3d 511, 520-521, 143 Cal. Rptr. 782,
786-787.) A level of .10 establishes intoxication. Cal. Veh.
Code, § 23155(a) (3); formerly § 23126(a) (3). This level is
erally as that level at which all drivers are
See Final Presidential Commission on Drunk
a. 1983) p. 17. Actually impairment occurs at a level of
6
1980, in Santa Rosa and tested on the Intoxilyzer, re-
sulting in two BAC readings of .20. Trombetta was ar-
rested for drunk driving on January 31, 1981, in Santa
Rosa and tested on the Intoxilyzer, resulting in BAC
readings of .19 and .18.
Under California law, a drunk driving suspect is
given his choice of submitting to a test of his blood,
breath, or urine. Cal. Veh. Code, § 13353(a). The Intox-
ilyzer is an instrument approved by the California De-
partment of Health for evidential breath testing.° The
legal issues turn upon the operation of the instrument
itself.
The following explanation of Intoxilyzer operation
is found in People v. Miller (1975) 52 Cal. App. App. 3d
666, 668-669, 125 Cal. Rptr. 341, 342.’
6. Law enforcement agencies must test breath samples in con-
formity with Department of Health regulations. Cal. Health
& Saf. Code, § 436.51. Breath alcohol analysis may be per-
formed only upon instruments which pass that Department's
evaluation tests. 17 Cal. Admin. Code, §§ 1221.1(a), 1221.2,
1221.3(c), 1221.3(d), 1221.3(i).
The Intoxilyzer was first evaluated and approved in Cal-
ifornia in 1974. See Summary of Activities Relating to Evalua-
tion of Instruments and Related Accessories for Breath Alcohol
Analysis, California Department of Health (Report No. 2, Feb.
1974) Table 10, p. 5. ‘The intoxilyzer has been subjected to
rigid scrutiny and testing by a state agency qualified in this
technical field. It has been approved for use under the detailed
regulations prescribed by that agency.” People v. Miller (1975)
52 Cal. App. 3d 666, 670, 125 Cal. Rptr. 341, 343. It it still
approved and is the instrument of choice by most California
nd ee agencies, constituting 82% of the instruments
utilized.
7. Miller provides what is the clearest and most succinct of
all Intoxilyzer explanations. In the present case, the Court of
Appeal did not quarrel with that explanation, and in fact cited
it 142 Cal. App. 3d at 141-142, 190 Cal. Rptr. at 321. Miller,
however, found Intoxilyzer use constitutional and rejected the
very argument successfully made here 52 Cal. App. 3d at 669-
670, 125 Cal. Rptr. at 342-343. It was this portion of Miller with
which the Court of Appeal “fundamentally disagreed.” 142
Cal. App. 3d at 143-144, 190 Cal. Rptr. at 322.
‘
“The subject’s breath is captured in a _ metal
’ chamber, infrared energy of fixed intensity and wave
length is passed through the chamber from one side
to a photo-electrie cell on the other side. Alcohol
absorbs light of the fixed wave length. The device
computes the loss of energy, translates the result in
terms of the grams of alcohol per 100 milliliters of
blood, and prints the result upon a card. In the pre-
scribed operation of the device, clean air is first
tested, then the breath of the subject. The chamber
is then purged by blowing clear air through it, the
clear air is tested, and all three results appear upon
the printed card. The two tests of clear air consti-
tute a test of the machine, and should show zero al-
cohol content. It is apparent that no test result,
save the printout card, was available for preserva-
tion.”
The following facts concerning the operation of the
Intoxilyzer were found by the Municipal Court judge in
the Trometta case 3
‘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 Intoxilyzer unit, tem-
porarily collects or gathers breath of a tested indi-
vidual. The chamber which collects this breath con-
tains it only for a period of time necessary to con-
duct an analysis of this breath. By the construction
of the machine itself, namely that of having two
or{i]fices, one for introduction and one for the ex-
pulsion of the sample, it appears to the court that
the temporary control over the breath makes the
8. The only factual findings at the trial level were made in the
Trombetta case. A copy of Judge Antolini’s findings are in-
cluded in the Appendix (at p. 40). The Cox group of cases
came from the same county as Trombetta and were governed
by that finding. No factual findings were made in Ward or
Berry since the trial court considered itself bound by the de-
cision in People v. Miller (1975) 52 Cal. App. 3d 666, 125 Cal.
Rptr. 341, which has already been quoted.
8
ultimate dissipation and destruction of the sample an
inherent and obvious consequence of using that par-
ticular intoxilyzer unit. The argument that the state
is in control of the breath and that by choosing to
purge that sample, destroys it, is an argument that
in the court’s opinion is reductio ad absurdum. Mr.
Murray, the defense witness, stated in substance,
that the intoxilyzer collects breath but not for later
analysis and then must be purged in order to be
useable again. Without an addition to the present
intoxilyzer unit it appears to the court that it would
be impossible to exercise permanent control result-
ing in preservation of any sample. Therefore, it
would appear to the court that the destruction of
any temporarily collected sample would not be
through the actions or efforts of the state, but
rather through the workings of the machine itself.”
SUMMARY OF ARGUMENT
The Constitution requires neither preservation of nor
prosecution with physical evidence. By so interpreting
Brady v. Maryland (1963) 373 U.S. 83, the California
courts have expanded that decision far beyond any reason-
able bounds. Brady focuses upon the duty to disclose evi-
dence exonerating the accused, not upon a general duty of
evidence preservation. Indeed in United States v. Augen-
blick (1969) 393 U.S. 348, 356, this Court held that the loss
or destruction of evidence was not a federal constitutional
question with overtones of due process. What a defend-
ant is entitled to under due process is a fair trial, and this
may be had even though physical evidence has been lost or
destroyed.
Whatever preservation requirement may exist under
the federal Constitution, it certainly does not arise when
the State does not have evidence in its possession in any
useful form. Nor is there any requirement under due
process of law that the State should make affirmative ef-
forts to collect evidence for the benefit of the accused.
A violation of Brady occurs only if it can be shown
that evidence favorable to the defense and material to the
case was suppressed. Moore v. Illinois (1972) 408 U.S. 783,
794-795. None of the three elements necessary to that
showing are demonstrated here. Destruction by the ordi-
nary operation of a testing device is not suppression; this
evidence was unfavorable to defendants; and the evidence
was not “material” in its due process sense since numerous
and adequate avenues remained open to these defendants
through which they could test and even challenge the evi-
dence, although it no longer physically existed. Nor was
the breath sample destroyed material evidence as a prac-
tical matter.
ARGUMENT
The Constitution Requires Neither Preserva-
tion Of Nor Prosecution With Physical Evidence.
The opinion below is predicated upon the proposition
that the federal Constitution requires the collection and
preservation of physical evidence if there is a reasonable
possibility that it might be of benefit to the accused. 142
Cal. App. 3d at 142, 190 Cal. Rptr. at 322. This interpreta-
tion of the Constitution has its California genesis in People
10
v. Hitch (1974) 12 Cal. 3d 641, 527 P.2d 361.9 In Hitch,
12 Cal. 3d at 645-648, 650-653, 527 P.2d at 364-367, 369, the
California Supreme Court devined this rule by reference to
Giglio v. United States (1971) 405 U.S. 150, 153-154, and
Brady v. Maryland (1963) 373 U.S. 83, 87, as well as United
States v. Bryant (D.C. Cir. 1971) 429 F.2d 642, 647-648,
which also purports to apply Brady in achieving a similar
end. Yet Hitch and Bryant create a quantum leap in the
Constitution through transmogrification of Brady.
Brady v. Maryland, supra, was a murder case in which
the prosecutor withheld from the defense a confession in
which codefendant Boblit, who was separately tried, had
admitted that it was he who had killed the victim. 373 U.S.,
at 84. This Court viewed nondisclosure of such clearly-
exculpatory information as unfair and incompatible with
our system of justice. Jd., at 87-88. In Giglio v. United
States, supra, 405 U.S., at 154-155, the witness who was
virtually the entire prosecution’s case falsely testified that
he had not been\promised immunity, and this Court found
that nondisclosure of inforniation heavily bearing upon
his credibility created a trial that was fundamentally un-
9. Hitch seems to be the fountainhead for those decisions in
other states finding a similar duty to preserve evidence. They
often cite it, and almost all were decided later. £.g., Lauderdale
v. State (Alaska 1976) 548 P.2d 376, 381-382 (Breathalyzer am-
pules); Baca v. Smith (Ariz. 1980) 604 P.2d 617, 618-620 (breath
sampies); Garcia v. District Court, 21st Jud. Dist. (Colo. 1979)
589 P.2d 924, 929-930 (breath samples); People v. Harmes
(Colo. . 1980) 560 P.2d 470, 472-473 (video tape); State v.
Brown (la. 1983) 337 N.W.2d 507, 509, 511 (blood sample);
State v. Lovatu (N.M.App. 1980) 617 P.2d 169, 171 (blood sam-
ple); State v. Michener (Or. App. 1976) 550 P.2d 449, 452-454
(Breathalyzer ms City of Seattle v. Fettig (Wash. 1974)
519 P.2d 1002, 1 1005 (video ). Like Trombetta /i, State
v. Havas (Nev. 1979) 601 P.2d 1197, 1197-1198, goes even fur-
oe and requires an affirmative effort to collect possible evi-
nce.
11
fair. In both cases this Court focused not upon the tangi-
bility or nature of the evidence, but upon its character and
the conduct of the prosecution. As this Court observed in
Mooney vy. Holohan (1935) 294 U.S. 103, 112:
“(Djue process ... embodies the fundamental con-
ceptions of justice which lie at the base of our civil and
political institutions. [Citation.] It is a requirement
that cannot be deemed to be satisfied... if a State has
contrived a conviction through the pretense of a trial
which in truth is but used as a means of depriving a
defendant of liberty through a deliberate deception of
court and jury... .”
This Court has also counseled that:
“(Though the attorney for the sovereign must prose-
cute the accused with earnestness and vigor, he must
always be faithful to his client’s overriding interest
that ‘justice shall be done.’ He is the ‘servant of the
law, the twofold aim of which is that guilt shall not
escape or innocence suffer.’” United States v. Agurs
(1976) 427 U.S. 97, 110-111.
As this Court noted in Agurs, id. at 110, “If the suppres-
sion of evidence results in constitutional error, it is be-
cause of the character of the evidence, not the character of
the prosecutor.” Thus it would seem that the affirmative
duty of disclosure which arises under Brady exists irre-
spective of the tangibility of the evidence.
That evidence destruction is not of itself a constitu-
tional violation is apparent from this Court’s decision in
United States v. Augenblick (1969) 393 U.S. 348, in which
a tape recording of an interview with the defendant’s co-
participant in indecent sexual acts, as well as notes of that
interview, somehow were lost. The Court of Claims had
found the loss or destruction of these materials to violate
12
due process. Augenblick v. United States (Ct. Cl. 1967)
377 F.2d 586, 606-607. Though this Court viewed at least
the tape destruction a problem under the Jencks Act (18
U.S.C., § 3500), id., at 354, it was not considered an issue
of constitutional dimension. Speaking for a unanimous
court, Justice Douglas observed (at 356):
“But questions of that character do not rise to a con-
stitutional level. Indeed our Jencks decision and the
Jencks Act were not cast in constitutional terms. [ Cita-
tion.] They state rules of evidence governing trials
before federal tribunals; and we have never extended
their principles to state criminal trials. ... But certain
it is that this case is not a worthy candidate for con-
sideration at the constitutional level.
“The Court of Claims, in a conscientious effort
to undo an injustice, elevated to a constitutional level
what it deemed to be an infraction of the Jencks Act
and made a denial of discovery which ‘seriously im-
peded his right to a fair trial’ a violation ‘of the Due
Process Clause of the Constitution.’ 180 Ct. Cl. at
166, 377 F.2d, at 606-607. But apart from trials con-
ducted in violation of express constitutional mandates,
a constitutionally unfair trial takes place only where
the barriers and safeguards are so relaxed or for-
gotten, as in Moore v. Dempsey, supra [(1923) 261
U.S. 86], that the proceeding is more a spectacle [cita-
tion] or trial by ordeal [citation] than a disciplined
contest.’’
‘‘There is no rule of law which requires the gov-
ernment to prove its case by ‘real evidence.’ ’’ Lebron v.
United States (1st Cir. 1957) 241 F.2d 885, 887, cert. den.,
354 U.S. 911; accord, Ware v. United States (8th Cir.
1958) 259 F.2d 442, 444; Brake v. State (Mo. 1970) 460
S.W.2d 639, 641-642; People v. Shafer (1950) 101 Cal.
App. 2d 54, 59-60, 224 P.2d 778, 781-782. Indeed, the ma-
jority of the evidence in any case is entirely testimonial.
13
Even in the most heinous of crimes—murder—physical
proof of death is not required. St. Clair v. United States
(1894) 154 U.S. 134, 152.'° The reports are replete with
instances in which the evidence has been mistakenly dis-
carded, negligently lost, routinely destroyed, or consumed
in the process of analysis, without being considered of-
fensive to due process.'' Loss or destruction of evi-
10. This rule prevails even in California. E.g., People v. Man-
son (1977) 71 Cal. App. 3d 1, 25, 139 Cal. Rptr. 275, 287, cert.
den., 435 U.S. 953; People v. Scott (1959) 176 Cal. App. 2d 458,
489-496, 1 Cal. Rptr. 600, 619-623, cert. den., 364 U.S. 471, rehg.
den., 364 U.S, 944.
11. United States v. Traylor (9th Cir. 1981) 656 F.2d 1326,
1334-1335 (cocaine routinely destroyed); United States v. Hern-
don (5th Cir. 1976) 536 F.2d 1027, 1029-1030 (mash sample
routinely destroyed); D’Aquino v. United States (9th Cir. 1951)
192 F.2d 338, 350, cert. den., 343 U.S. 935, rehg. den., 343 U.S.
958 (tapes and Tokyo Rose scripts routinely destroyed); Lee
v. State (Alaska 1973) 511 P.2d 1076, 1077 (heroin used up);
People v. Shafer (1950) 101 Cal. App.2d 54, 59, 224 P.2d 778,
781 (heroin capsules crushed); State v. Herrera (Fla.App. 1979)
365 So.2d 399, 400-401 (heroin used up); State v. Lightle (Kan.
1972) 502 P.2d 834, 836 (drugs used up); State v. Carison (Minn.
1978) 267 N.W.2d 170, 175 (bloodstain used up); Gedicks v.
State (Wis. 1974) 214 N.W.2d 569, 572-573 (vapors evaporated);
but see Stipp v. State (Fla. App. 1979) 371 So.2d 712, 713-714;
State v. Gaddis (Tenn. 1975) 530 S.W.2d 64, 69.
Some courts, considering the issue more one of confron-
tation, have found no constitutional violation since the witness
finding or — the evidence is available for cross-examina-
tion. E.g., United States v. Sewar (9th Cir. 1972) 468 F.2d 236,
238, cert. den., 410 U.S. 916 (blood sample discarded); United
States v. Brumley (10th Cir. 1972) 466 F.2d 911, 916, cert. den.,
412 U.S. 929 (paint particles used up); State v. Cruz (Ariz. App.
1979) 600 P.2d 1129, 1132 (drugs lost); State v. Burns (Conn.
1977) 377 A.2d 1082, 1085-1 (clothing, hair ao lost);
State v. Armstrong (Fla. App. 1978) 363 So.2d 38, 39 (loot re-
turned); People v. Ashton (Ill, APP: 1974) 309 N.E.2d 285, 286
(loot, weapon routinely destroyed). Others have not focused
(Continued on following page)
14
dence goes to the weight of the evidence, not its admisi
sibility. United States v. Pullings (7th Cir. 1963) 321
F.2d 287, 296; Ware v. United States (8th Cir, 1958) 259
F.2d 442, 444; Gedicks v. State (Wis. 1974) 214 N.W.2d
569, 572-573; see St, Clair v. United States (1894) 154 U.S.
134, 152-153. Ordinarily the loss or destruction of evi-
dence is most ‘tharmful’’ to the prosecution. See, e.g.,
United States v. Loud Hawk (9th Cir. 1979) 628 F.2d
1139, 1149, cert. den., 445 U.S. 917. It is at least an em-
barassment to the prosecution when it has no evidence
to exhibit. See, e.g., Munich v. United States (9th Cir.
1966) 363 F.2d 859, 861. It assuredly weakens the State’s
case. The defense may actually profit when a tested
substance is missing, since it is able to ‘‘question the
chemist who performed the test on the correctness and
reliability of the procedures that were followed, and to
challenge the veracity of the results . . . without being
handicapped by the threat of further tests being per-
formed so as to remove all doubt in the eyes of the jury.”
United States v. Ortiz (9th Cir. 1979) 603 F.2d 76, 80.
But loss or destruction of evidence simply does not pre-
sent a federal constitutional question. United States v.
Augenblick, supra, 393 U.S., at 356; United States v.
Loud Hawk, supra, at 1153-1154 (Kennedy, concurring).
(Continued from previous page)
on a particular right, but have declined to hold that the con-
stable or his expert erred. £.g., United States v. Cochran (5th
Cir. 1983) 697 F.2d 600, 606 (inaudible tape erased); United
States v. Shafer (7th Cir. 1971) 445 F.2d 579, 581-582 (fuses,
powder routinely destroyed); Munich v. United States (9th Cir.
1966) 363 F.2d 859, 860, cert. den., 386 U.S. 974 (heroin rou-
tinely destroyed); oo ag v. Vick (1970) 11 Cal. App. 3d 1058,
1066, 90 Cal. Rptr. 236, 241-242 (body buried); Partain v. State
(Ga. 1978) 232 S.E.2d 46, 46-47 (cocaine used up); State v.
Sprout (Mo. 1963) 365 S.W.2d 572, 575-576 (bloodstains lost).
15
Of even less constitutional concern, then, is evidence
which the State never possessed in a form permitting
practical retention. It is one thing to claim account-
ability for evidence taken into State custody and to for-
bid throwing it away, but it is an astounding proposition
to extend responsibility to even those items the State
never had. People v. Miller, supra, 52 Cal. App. 3d, at
669-670, 125 Cal. Rptr., at 343; People v. Foung (Kan.
1980) 614 P.2d 441, 446. As noted in Miller, supra, ‘‘The
test by intoxilyzer ... may have ‘gathered’ evidence in
the sense of placing the breath in the chamber, but it was
not evidence of which the government could ‘take posses-
sion.’’’ As this Court has declared, ‘‘The law does not
require impossibilities.’’ Pointer v. United States (1894)
151 U.S. 396, 413.
Yet Trombetta II goes even beyond that fringe in
requiring the State to take affirmative steps to gather
evidence for the accused. As noted in Miller, 52 Cal. App.
3d, at 670, 125 Cal. Rptr., at 343, with an Intoxilyzer ‘‘The
only element reducible to possession was the printout
card, which has been preserved.’’ In finding the facts
below, Judge Antolini observed that ‘‘ Without an addi-
tion to the present intoxilyzer unit... it would be im-
possible to exercise permanent control resulting in preser-
vation of any sample.’’ Requiring the State to develop
some system for retaining a breath sample represents
affirmative conduct for the sole benefit of the accused;
a duty never before imposed upon the State. As the Kan-
sas Supreme Court remarked in State v. Young (Kan.
1980) 614 P.2d 441, 446, in rejecting that proposition and
cases advancing it:
‘‘The basis for this requirement in this case is not
well defined. These courts seem to be aware that
16
other courts do not require an extra sample. They
hold in a general way, however, that it is incumbent
upon the state to employ regular procedures to pre-
serve evidence for the defendants. They require a
state agent, in the regular performance of his duties,
to reasonably foresee what evidence ‘might be favor-
able to the accused’ and to obtain and preserve the
same for the defendant’s use. [Citations.] The dif-
ficulty of accepting this logic in the present case is
apparent. The item in question here is merely a
sample of breath from the accused himself, which he
alone can furnish for independent testing... .’’
The difficulty in envisioning any limits upon such a duty
disturbed the Miller court, which cautioned:
‘‘The unwarranted extension... [of the duty] could
have strange an unsettling results. If all evidence
which can be made demonstrative must be so trans-
formed, we shall encounter problems with extra-
judicial decalartions which, with fortuitous foresight,
could have been tape-recorded, and eye-witness ob-
servations of events which could have been photo-
graphed.’’
The rule espoused by Trombetta II is without definable
limits.
An even greater step beyond Brady was made when
the Court of Appeal required the state to “preserve the
captured evidence or tts equivalent for the use of the de-
fendant.”’ 142 Cal. App. 3d at 144 (emphasis added). Of
the devices approved in California, only the Intoxilyzer
is non-destructive; the others physically consume the sam-
ple in the test process. See fn. 14, infra, at p. 22. This
would mean that a completely different sample than even
the police used would have to be taken for the defendant’s
testing. And in the case of the Intoxilyzer, even the re-
tention devices used in Colorado, to which the Trombetta
17
II court referred, do not preserve the breath; they pur-
port to capture the alcohol portion of the breath with an
absorbant. In other words, there is no device whatso-
ever which would permit the defendant to retest—how-
ever unreliably—the same sample in the same form as that
tested by the police.
There is no donbt that preservation of a substance
chemically tested—such as a breath sample, were it pos-
sible—would be an ideal situation, but nonpreservation
does not mean that the defendant has been denied a fair
trial. United States v. Traylor (9th Cir. 1981) 656 F.2d
1326, 1335. Perfection is not constitutionally mandated.
Michigan vy. Tucker (1974) 417 U.S. 4383, 446. As this Court
observed in McGautha vy. California (1971) 402 U.S. 183,
221:
“(T]he Federal Constitution ... does not guarantee
trial procedures that are the best of all possible
worlds, or that accord with the most enlightened ideas
., or even those that measure up to the individual
predelictions of members of this Court. [Citation.]
The Constitution requires no more than that trials be
fairly conducted... .”
“When criminal evidence is lost or destroyed, the court’s
principal concern is whether the defendant can have a
fair trial even though he is not able to examine all the
relevant evidence.” United States v. Traylor, supra, at
1334. Loss must seriously impair the defendant’s ability
to present his defense. United States v. Loud Hawk (9th
Cir. 1979) 628 F.2d 1139, 1153, fn. 3 (Kennedy, concurring).
The evidence must be so material that the defendant can-
not get a fair trial without it. United States v. Wilks (10th
Cir. 1980) 629 F.2d 669, 674. Yet as Judge Kennedy noted
in United States v. Loud Hawk, supra, at 1154: ‘Rarely
18
will the unfairness that might be caused by the destruc-
tion of evidence rise to the level of making the proceed-
ings ‘a spectacle or trial by ordeal.’” Yet that is the
standard for finding a due process violation. United States
v. Augenblick (1969) 393 U.S. 348, 356.
Many courts have held that the ability on cross-exam-
ination to probe into the accuracy of test results, the com-
petence of the expert, the acceptability of the methodology,
and the adequacy of the equipment are sufficient to sat-
isfy constitutional concerns even though the evidence it-
self is missing or destroyed." As the California Court of
Appeal noted in People v. Miller, supra, 52 Cal. App. 3d,
at 669, 125 Cal. Rptr., at 343:
“The only element reducible to possession was the
[Intoxilyzer] printout ecard, which has been preserved.
The machine itself remains available. It and the fre-
quent testings required by regulations of the Depart-
ment of Health are available for discovery and im-
peachment.”
Nothing more is constitutionally required.
Nor is there something sui generis about breath test-
ing in drunk driving cases which creates an exception to
the rule. As a matter of fact, a defendant charged with
drunken driving is uniquely prepared to counter the
State’s chemical evidence, for it is he who is in possession
of the sample source. As the Kansas Supreme Court ob-
served in State v. Young (Kan. 1980) 614 P.2d 441, 446:
12. United States v. Traylor (9th Cir. 1981) 656 F.2d 1326, 1335;
United States v. Ortiz (9th Cir. 1979) 603 F.2d 76, 80; United
States v. Sewar (9th Cir. 1972) 468 F.2d 236, 238; United States
v. Brumley (10th Cir. 1972) 466 F.2d 911, 916; State v. Cruz
(Ariz. App. 1979) 600 P.2d 1129, 1132; People v. Vick (1970) 11
Cal. App. 3d 1058, 1066, 90 Cal. Rptr. 236, 241-242; State v.
Burns (Conn. 1977) 377 A.2d 1082, 1085-1086; see State v. Clou-
tier (Me. 1973) 302 A.2d 84, 89.
19
“The item in question here is merely a sample of breath
from the accused himself, which he alone can furnish for
independant testing by his own physician as authorized
by ... [statute].” Like Kansas, California law specific-
ally provides that a drunk-driving suspect has an absolute
right to have his own sample collected and tested by his
own expert. Cal. Veh. Code, § 13354(b). Police officers
are forbidden from interfering with that right. See Peo-
ple v. Superior Court (Scott) (1980) 112 Cal. App. 3d 602,
605, 169 Cal. Rptr. 412, 413."° Due process does not require
more. State v. Young, supra; State v. Cornelius (N.H.
1982) 452 A.2d 464, 465.
In Trombetta II, the California Court of Appeal held
that due process was satisfied only if the prosecution used
a device which preserved something for retesting for the
defendant. See 142 Cal. App. 3d, at 142, 144, 190 Cal. Rptr.,
at 321-323. This very contention was previously rejected
in People v. Miller, supra, 52 Cal. App. 3d, at 670, 125 Cal.
Rptr., at 343, with this commentary and observation:
13. If officers improperly prevent the defendant from obtain-
ing his own sample in a timely manner, then evidence of the
alcohol test taken by or for the police will be suppressed.
Brown v. Municipal Court (1978) 86 Cal. APP. 3d 357, 363-365,
150 Cal. Rptr. 216, 220-222. Since alcohol is quickly excreted
from the body, the same principle requiring a prompt test or
sample collection for law enforcement purposes applies to a
sample or test for defense purposes. /d., 86 Cal. App. 3d, at
362, 150 Cal. Rptr., at 220. Once testing for law enforcement
is completed, if the defendant has requested his own test by
his own expert, he must at least be given an a to
make arrangements for it, such as a Phone call. In re Martin
(1962) 58 Cal. 2d 509, 511-512, 24 Cal. Rptr. 833, 834; In re
Koehne (1960) 54 Cal. 2d 757, 760, 8 Cal. Rptr. 435-436; Mc-
Cormick v. Municipal Court (1961) 195 Cal. App. 2d 819, 821-
824, 16 Cal. Rptr. 211, 215. If facilities for sample collection
(Continued on following page)
20
“We find it no answer to say... that another device
... could have been used and that, for some undeter-
mined time, it would have preserved a sample chem-
ical subject to reasonably accurate testing... .
“The unwarranted extension of Hitch could have
strange and unsettling results. If all evidence which
can be made demonstrative must be so transformed,
we shall encounter problems with extrajudicial dec-
larations which, with fortuitous foresight could have
been tape-recorded, and eyewitness observations of
events which could have been photographed,”
What the “collection and preservation” requirement
really does it to completely reject fundamental concepts
which underlie both our governmental agencies and our
judicial system. It is otherwise presumed that govern-
mental officials will faithfully perform their duties. £.g.,
Kephart v. Richardson (3d Cir. 1974) 505 F.2d 1085, 1090;
Cal. Evid. Code, 4 664. The preservation requirement as-
sumes that they will not. California breath test instruments
are rigorously tested, periodically checked, and their use
strictly regulated. People v. Mi'ler, supra, The preserva-
(Continued from previous page)
are readily available locally, then officers must take the de-
fendant to them once he has made those arrangements. See
In re Howard (1962) 208 Cal. App. 2d 709, 711, 716, 25 Cal.
Rptr. 590, 591, 594, If the defendant is already someplace like
a hospital where he can have his own sample taken, then the
officer cannot interfere with his request to have his own sample.
Brown vy. Municipal Court, supra, 86 Ci. App. 3d, at 360, 362,
365, 150 Cal. Rptr., at 219, 220, 222.
Current California law gives the accused even greater pro-
tection. Vehicle Code, section 13353.5, requires any suspect
who has elected to take a breath test to be advised that no
sample will be retained for possible retesting, so that if he
wants a sample for retest, he must give a sample of blood or
urine. The section also requires the sample to be collected
for him by the testing ped Id. This statute was eracted in
response to Trombetta //.
21
tion requirement assumes that the instruments will fail, or
the strictures be ignored. Years ago in St. Clair v. United
States (1894) 154 U.S. 134, 152, this Court relied upon a de-
cision by Justice Story holding that a murder at sea could
be proved though the body was never found. In United
States v. Gilbert (No. 15,204) 25 Fed. Cas. 1287, 1290-1291,
Justice Story commented thusly:
“{T]t is probable, that in some few instances, though
they have been rare, innocent persons have been con-
victed, upon circumstantial evidence, of offences,
which they never commited. The same thing has
probably sometimes, though perhaps not more rarely,
occurred, where the proofs have been positive and
direct from witnesses, who have deliberately sworn
falsely to the facts, constituting the guilt of the ac-
ens, But to what just conclusion does this tend?
Admitting the truth of such cases, are we, then, to
abando: all confidence in circumstantial evidence, and
in the testimony of witnesses? Are we to declare,
tliat uo human testimony to circumstances or to facts,
is worthy of belief, or can furnish a just foundation
for a conviction? That would be to subvert the whole
foundations of the administration of public justice.”
And that is precisely what the preservation requirement
does.
IT.
There Has Been No Violation Of Any Brady
Standard.
No matter what is required in the way of evidence
preservation, Brady has not been violated here. In Moore
yv. Illinois (1972) 408 U.S, 783, 794-795, this Court ex-
plained that:
“The heart of the holding in Brady is the prose-
cution’s suppression of evidence in the face of a de-
)
fense production request, where the evidence is favor-
able to the accused and is material either to guilt or
to punishment. Important, then, are (a) suppression
by the prosecution after a request by the defense,
(b) the evidence’s favorable character for the defense,
and (c) the materiality of the evidence.” (Italics
added. )
These factors have been conjunctively joined by this Court.
Yet not one of them is satisfied here.
The Intoxilyzer automatically pumps the sample anal-
yzed out so that the instrument can be recycled for an-
other test; that is how the manufacturer designed it. Thus
the breath sample is “destroyed” in the analytical proce-
ess."4 Up until now, it has been held that a test proce-
dure which by its nature destroys the material tested is
not the equivalent of suppression. United States v, Love
(5th Cir. 1973) 482 F.2d 213, 220 (gunshot residue used
up); State v. Atkins (Fla. App. 1979) 369 So, 2d 389,
390 (heroin used up); see also cases cited in fn. 11, supra,
at pp. 13-14; but see Stipp v. State (Fla. App. 1979) 371 So.
2d 712, 713-714." Nor is it considered “suppression”
14. All breath testing instruments approved in California de-
stroy the sample - one means or another. The Intoxilyzer
discharges its sample into room atmosphere. In the Breath-
alyzer, the sample is chemically consumed as it bubbles a
a solution of potassium dichromate and sulphuric acid. In the
gas chromatograph devices, the breath is separated into va-
rious Components and swept out into room atmosphere along
with a carrier gas. One model—the one which can analyze an
indium-tube sample—also burns the sample tested in the proc-
ess.
15. Some cases, including Stipp, require the prosecution to
give notice to the defense before engaging in destructive test-
ing of small samples. State v. Gaddis (Tenn. 1975) 530 $.W.2d
64, 69; see State v. Carlson (Minn. 1978) 267 N.W.2d 170, 175,
fn. 4. California Vehicle Code, § 13353.5, accomplishes much
the same thing.
23
where the destruction flows from a routine practice.
D’ Aquino vy. United States (9th Cir. 1951) 192 F.2d 338,
350; see United States v. Augello (2nd Cir. 1971) 451 F.2d
1167, 1170. If the defendant “requests” his own sample,
California law assures that right. Cal. Veh. Code,
§ 13354(b): see fn. 13, supra, at pp. 19-20. Hence the first
of the Moore tests is not satisfied.
The second requirement is that the evidence be favor-
able to the accused. Of course the converse is true here;
an evidential breath test with a BAC exceeding .10 is
clearly incriminating. Brady does not concern itself with
incriminating evidence. United States v. American Radia-
tor d Standard Sanitary Corp, (3d Cir. 1970) 4383 F.2d
174, 202, cert. den., 401 U.S. 948. In this regard, both
People v. Hitch (1974) 12 Cal. 3d 641, and United States
v. Bryant (D.C. Cir. 1971) 439 F.2d 642, seem to turn this
requirement on its head. Hitch requires preservation if
it ic “reasonably possible” that the item might give favor-
able evidence on the question of guilt or innocence. /d.,
12 Cal. 3d, at 648-649, 527 P.2d, at 366-367. As noted in
Edwards v, Oklahoma (D. Okla. 1976) 429 F. Supp. 668,
671, rev’d on other grounds, 577 F.2d 1119 (10th Cir. 1978) :
“This extension of the Brady doctrine is not justified
as a matter of constitutional law. Brady focused up-
on the harm to the defendant resulting from non-dis-
closure. Hitch diverts this concern from the reality
of prejudice to speculation about contingent benefits
to the defendant. Without regard to... the specific
prejudice to the accused the rule would render con-
stitutionally infirin every conviction in which there
are missing items of evidence or evidence which may
24
have been destroyed or damaged by careless or inept
investigators.'*
Edwards is consistent with this Court's remarks in United
States v. Agurs (1976) 427 U.S. 97, 109-110, that “The
mere possibility that an item of undisclosed information
might have helped the defense, or might have affected the
outcome of the trial, does not establish ‘materiality’ in the
constitutional sense.”
Federal courts have never found a Brady violation
where the evidence destroyed or undisclosed would not
tend to exculpate the defendant or had no real evidentiary
value. See Norris v. Slayton (4th Cir. 1976) 540 F.2d 1241,
1243-1244; Fields v. Alaska (9th Cir. 1975) 524 F.2d 259,
260-261; United States v. Brumley (10th Cir. 1972) 466
F.2d 911, 916; Bergenthal v. Cady (7th Cir. 1972) 466 F.2d
635, 637, cert. den., 409 U.S. 1109; Riley v. Sigler (8th Cir.
1971) 437 F.2d 258, 259-260. Rrady does not require pres-
ervation of “any evidence which might conceivably aid the
defense in the preparation of its case.’’ Williams v. Wolf
(8th Cir. 1973) 473 F.2d 1049, 1054; see Killian vy. United
States (1961) 368 U.S, 231, 242. A defendant cannot mere-
ly assert that the missing evidence would be favorable; he
must demonstrate how, colorably establish his claim, or
show that the secondary evidence available is not sufficient
for a fair trial. United States v. Balliviero (5th Cir. 1983)
708 F.2d 934, 943; United States v. Griffin (9th Cir, 1982)
659 F.2d 932, 939; United States v. Loud Hawk (9th Cir.
1979) 628 F.2d 1139, 1156 (Kennedy, concurring);
D’ Aquino v. United States (9th Cir. 1951) 192 F.2d 338,
350; State v. Shaw (Conn. 1981) 441 A.2d 561, 568. Specu-
16. Such attacks on convictions have indeed become old hat
in California. See, A i People v. Harris (1976) 62 Cal. App. 3d
859, 862-865, 133 Cal. Rptr. O52, 353-355.
25
lation doesn’t count. United States v. American Radtator
& Standard Sanitary Corp. (3d Cir. 1970) 433 F.2d 174,
202."
In United States v. Bryant (D.C. Cir. 1971) 489 F.2d
642, 647-648, the court established essentially a presump-
tion of favorability where the evidence itself was lost. But
the very same factors which so concerned the court in
Bryant also concerned the court in Augenblick v. United
States (Ct. Cl. 1967) 377 F.2d 586, 605-606, which this Court
reversed for elevating a statutory infraction to a constitu-
tional right, 393 U.S. 348, 356. Such an assumption reflects
a basic distrust of public officers which should not be in-
dulged by the courts. See United States v. Hoppe (8th
Cir. 1981) 645 F.2d 630, 634, cert. den., 454 U.S. 849; Unit-
ed States v. Sewar (9th Cir, 1972) 468 F.2d 236, 238; cf.
United States v. Gilbert (No, 15,204) 25 Fed. Cas. 1287,
17. The Hitch court should have heeded such advice. Hitch
a wrong. The vast majority of courts reject the decision
ecause it is simply wrong on the facts—it is not —s to
reliably retest Breathalyzer ampules. See State v. Phillipe (Fla.
App. 1981) 402 So.2d 33, 34; People v. Stark (Mich. App. 1977)
251 N.W.2d 574, 575-577; State v. Teare (N.J. Super. 1975) 342
A.2d 556, 668, and State v. Bryan (N.J. Super. 1974) 336 A.2d
511, 513; People v. LePree (Rochester City Ct. 1980) 430 N.Y.S.
2d 778, 781-782; State v. Larson (N.D. 1981) 313 N.W.2d 750,
755-756; State v. Shutt (N.H. 1976) 363 A.2d 406, 407; State v.
Watson (Ohio App. 1975) 355 N.E.2d 883, 884-885; Edwards v.
State (Okla.Crim.App. 1976) 544 P.2d 60, 62-64; Edwards v.
Oklahoma (D. Okla. 1976) 429 F.Supp. 668, 670-671, rev'd on
other grounds, 577 F.2d 1119 (10th Cir. 1978); State v. Newton
(S.C, 1980) 262 S.E.2d 906, 909; State v. Helmer (S.D. 1979)
278 N.W.2d 808, 810-811; Turpin v. State (Tex.Crim.App. 1980)
606 S.W.2d 907, 916-917; State v. Canady (Wash. 1978) 585 P.2d
1185, 1187-1188. The National Safety Council Committee on
Alcohol and Drugs has also specifically rejected Hitch. See 22
). Forensic Science 486 (1977). One judge finally put a defense
alchemist to the test, providing emiprical evidence that retests
were 100% inaccurate and always to the defendant's disadvan-
po ge Ea v. Santiago (Sup. Ct. N.Y. Co.) 455 N.Y.S.2d
26
1290-1291 (C.C. Mass. 1834). It is even less warranted
in a case such as this where the instrument is tested, peri-
odically checked, regulated, and available for re-examina-
tion.
The third Brady factor is that of materiality. But
we believe that “materiality” is to be addressed in due
process terms; not as the Hitch case (12 Cal. 3d, at 647,
527 P.2d, at 365-366) or Trombetta II did (142 Cal. App. 3d,
at 143, 190 Cal. Rptr., at 322) merely by looking to see
whether it was significant evidence in the case. The real
question is whether or not the defendant has been deprived
of a fair trial. United States v. Augenblick (1969) 393
U.S, 348, 356. As we demonstrated in Argument I, supra,
a fair trial may be had by means other than examination
of physical evidence which has been lost or destroyed.
Furthermore, we do not believe that a retained breath
sample would be “material” in any real sense. Were the
sample retested and found to confirm the prosecution re-
sults, then only the prosecution benefits. Cf. United States
v. Ortiz (9th Cir. 1979) 603 F.2d 76, 80. But what if there
is a discrepancy? It means that either the prosecution’s
instrument was erroneous or the defense analysis was
in error. And how can the conflict be resolved? By going
back to the test instrument; by examining its logs and by
running test samples on it. Yet as People v. Miller noted,
all this can be done without a “preserved sample” in the
first place. 52 Cal. App. 3d, at 670, 125 Cal. Rptr., at 343.
Nor could a preserved breath sample be “material”
under Brady unless it were proven that a practical means
of preservation exists which permits a reliable retest.
As the Florida Court of Appeal noted in State v. Lee
(Fla. App. 1982) 422 So. 2d 76, 78:
27
‘‘Although some courts have held that failure
by the state to automatically preserve a breath
sample is tantamount to suppression of evidence,
those holdings have come where the defendant has
shown that the preservation was scientifically pos-
sible. . . . We have found no case which has con-
sidered the defendant’s due process contention con-
cerning the state’s failure to produce a breath sample
without evidence and findings at the trial level that
it was scientifically possible for the state tc collect
and preserve such a sample.’
Accord, People v. Reed (Ill.App. 1981) 416 N.E.2d 694,
697. The trial court below did not make such a finding.
The California Court of Appeal refused to address the
issue.
The Court of Appeal placed great reliance on Garcia
v. Dist. Court, 21st Jud. Dist. (Colo. 1979) 589 P.2d 924
928-929, in which there was evidence that samples could
be preserved. But in view of the subsequent field experi-
ence with the “Colorado method” outlined in Montoya v.
Metropolitan Court (N.M. 1982) 651 P.2d 1260, 1261, in
which the head of Colorado’s Department of Health testi-
fied that the retests were erroneous 80-90 percent of the
time, it can hardly be contended that a “preserved” breath
sample yields inaterial evidence for the accused. Not only
are there no breath analysis instruments approved for
use in California which themselves capture and preserve
a breath sample, but there are m capturing devices ap-
proved to attach to them. As a matter of fact, the scien-
tific body which the California Legislature established to
advise the Department of Health on matters of this sort
(Cal. Health & Saf. Code, § 436.50) has recently con-
cluded that no device currently exists anywhere which
would permit a reliable retest of a breath sample. Ad-
visory Committee on Alcohol Determination, Department
28
of Health, Notes of Meeting of August 31, 1982, p. 29.
This unreliability has prompted a number of state courts
to reject retention requirements. See State v. Phillipe
(Fla.App. 1981) 402 S.3d 33, 34; State v. Larson (N.D.
1981) 313 N.W.2d 750, 755-756; id.; State v. Newton (S.C.
1980) 262 S8.E.2d 906, 909, fn. 1. Furthermore, a discre-
pancy between instrument test results and a preserved
sample would not in itself exonerate, but would simply
force a retest of the machine to determine which result
was accurate. Hence a retained sample is of no real value;
the instrument can always be retested whether or not a
sample is preserved. As we have already noted, supra, at
p. 24, federal courts have never found a Brady violation
where the destroyed evidence would not tend to exculpate
the defendant or had no real evidentiary value.
CONCLUSION
Trombetta II contorts Brady into something never
intended by this Court. If left standing, it will not only
significantly disrupt the ability of California and other
States to enforce their drunk driving laws, but will im-
pact upon every other criminal prosecution, making ‘‘the
State the guarantor of a perfect investigation and the
absolute insuror of all evidence,’’ Edwards v. Oklahoma
(D. Okla. 1976) 429 F. Supp. 668, 671, as well as an
investigator and evidence collector for the defense.
Though this may be ‘‘the best of all possible worlds’’ for
criminal defendants, it is not one created by our federal
concept of due process of law.
29
We submit that these cases must be reversed.
DATED: February 23, 1983.
JOHN K. VAN DE KAMP
Attorney General
WILLIAM D. STEIN,
Assistant Attorney General
GLORIA F. DE HART,
Deputy Attorney General
CHARLES R. B. KIRK,
Deputy Attorney General
Attorneys for Petitioner
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