Amicus Brief — California v. Trombetta

_

\S) _,

as gh No. 83-305

a IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1983

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

, Vv.

ALBERT WALTER TROMBETTA, ET AL.,

‘ Respondents.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF CALIFORNIA

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF OF THE APPFLLATE

COMMITTEE OF THE CALIFORNIA DISTRICT

ATTORNEY'S ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Appellate Committee of the

California District Attorney's

Association

MICHAEL E. NAIL

District Attorney of the

County of Solano

State of California

JOHN R. VANCE, JR.

Deputy District Attorney

321 Tuolumne Street

Vallejo, California 94590

(707) 553-5321

Attorneys for Amicus Curiae

(1)

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE IN SUPPORT OF PETITIONER

The California District Attorney's

Association is a nonprofit organization

which represents the fifty-eight

District Attorneys within the State of

California. The Appellate Committee of

the California District Attorney's

Association is a committee created by

the District Attorneys of California to

utilize and coordinate the resources of

District Attorney's offices throughout

the State for the purpose of presenting

their views in cases which may have

major statewide impact upon the prose-

cution of criminal offenses. The

Appellate Committee has filed numerous

amicus curiae briefs in the California

Supreme Court. It has also filed such

briefs in various Federal Courts as well

as this Court.

(2)

After review of the matter, the

Committee concluded that the case at bench

will have a substantial impact upon the

administration of justice in criminal

cases throughout the State of California,

if mot the entire United States. Accord-

ingly, the Committee has decided to

request permission to file an Amicus brief

in this case and has asked the District

Attorney of Solano County to prepare it.

The concern of the Appellate Commit-

tee is that this Court will be speaking

for the first time on an issue that is

most important to each of the fifty-eight

District Attorneys in California: What

are the requirements of the Due Process

Clause of the Fourteenth Amendment to the

United States Constitution insofar as the

collection and preservation of physical

evidence is concerned. We very strongly

believe that the decision by the

California Court of Appeal in People v.

’

(3)

Trombetta (1983) 142 Cal.App.3d 138, 190

Cal.Rptr. 319, to the extent it inter-

preted the due process requirement of

the Fourteenth Amendment, has confused

the duty of the courts to insure that a

trial is fair with the function of

legislature.

In Trombetta, the California Court

of Appeal held that the results of an

intoxilyzer test which determines the

blood alcohol content of a person's

breath would be inadmissible under the

Due Process Clause of the Fourteenth

Amendment to the United States

Constitution unless "the captured evi-

dence or its equivalent" was retained

for retest by person tested.

The Appellate Committee of the

California District Attorney's

Association's argument about due process

_is quite simple, as well as straight

forward: if results of a scientific

(4)

test (such as in the instant situation,

the intoxilyzer) is admissible because

its results are reliable, due process does

not change this result merely because,

with the march of techology, a technique

has arguably been developed which allows

these initial results to be verified at a

later date.

The Appellate Committe of the

California District Attorney's Association

has reviewed all the pleadings filed so

far in this Court. We have also reviewed

the pleadings which have been filed below.

We note that in the Court of Appeal, Amici

Curiae appeared on behalf of the respon-

dents. We finally note that because of

Our concern over the potential impact of

Trombetta, the undersigned was requested

to, and did, file a brief seeking review

in the California Supreme Court.

While in full agreement with each

and every argument made by the Attorney

“"

(5)

General in this case, the Appellate

Committee of the California District

Attorney's Association is concerned that

this Court should see the full implica-

tions of due process.

DATED: February 23, 1984

Appellate Committee of the

California District Attorney's

Association

MICHAEL E. NAIL

District Attorney

Solano County

BY: /

N R. VANCE, JR. f

Deputy District Attorney

Solano County, California

ge

TOPICAL INDEX

PAGE

INTEREST OF AMICUS 2

FACTS AND PROCEDURAL

SETTING OF THIS CASE 2

SUMMARY OF ARGUMENT f

ARGUMENT

THE DUE PROCESS CLAUSE

OF THE FOURTEENTH AMEND-

MENT DOES NOT ENTAIL THAT

WHEN A PERSON HAS BEEN

ARRESTED FOR DRIVING UNDER

THE INFLUENCE OF INTOXICATING ~

LIQUORS AND ELECTS TO TAKE A

BREATH TEST, THAT THE STATE

MUST ALSO PRESERVE THE

CAPTUREDEVIDENCE OR ITS

EQUIVALENT IN SOME MANNER, 7

CONCLUSION 37

ii.

TABLE OF CASES

PAGE

Brady v. Maryland

(1963) 373 U.S. 83 6, 21

Breithaupt v. Abram

(1957) 352 U.S. 432 9, 11, 19, 34

Brown v. Mississippi

(1936) 297 U.S. 278 13

Burg v. Municipal Court

(1984) 35 Cal.3d 257

198 Cal.Rptr. 145 9

Chambers v. Mississippi

(1973) 410 U.S. 284 12, 34

Edwards v. Oklahoma

(W.D. Okla. 1976)

429 F.Supp. 668

rev'd on other grounds

577 F.2d 1119

(10th Cir. 1978) 31, 34, 35

Edwards v. State

(Okla. Crim. App. 1976)

544 P.2d 60 31

Frank v. Maryland

(1959) 359 U.S. 360 7, 19

Frye v. United States

(D.C. Cir. 1923) 293 F. 1013 15

Intoximeters, Inc.

v. Younger

(1975) 53 Cal.App.3d 262

125 Cal.Rptr. 864 16

iii.

TABLE OF CASES

(Continued)

Jencks v. United States

(1967) 353 U.S. 657

Lauderdale v. State

(Alaska 1976) 548 P.2d 376

Lawrence v. City of

Los Angeles

(1942) 53 Cal.App.2d 6

127 P.2d 288

Lisenba v. California

(1941) 314 U.S. 219 9, 10, 19

Partin v. State

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

People v. French

(1978) 77 Cal.App.3d 51l

143 Cal.Rptr. 782

People v. Hitch

(1974) 12 Cal.3d 641

117 Cal.Rptr. 9 6, 29

People v. Kelly

(1976) 17 Cal.3d 24

130 Cal.Rptr. 129

People v. LaPree

(Rochester City Ct. 1980)

430 N.Y.S.2d 778

People v. Miller

(1975) 52 Cal.App.3d 666

125 Cal.Rptr. 341 16

PAGE

23

31

15

, 34

36

16

30

, 20

iv.

TABLE OF CASES

(Continued)

PAGE

People v. Ricter

(N.Y. Sup. 1980)

423 N.Y.S.2d 610 31

People v. Santiago

(Sup. Ct., N.Y. Co., 1982)

455 N.Y.S.2d 511 31, 32

People v. Shafer

(1950) 101 Cal.App.2d 54

224 P.2d 778 36

People v. Stark

(Mich. App. 1977)

251 N.W.2d 574 30

People v. Suddeth

(1966) 65 Cal.2d 543

55 Cal.Rptr. 393 14

People v. Trombetta

(1983) 142 Cal.App.3d 138

190 Cal.Rptr. 319 3, S. Ve 18;,. 20

People v. Vick

(1970) 11 Cal.App.3d 1058

90 Cal.Rptr. 236 36

Rochin v. California 8, 10, ll

(1951) 342 U.S. 16 13, 19, 34

Scales v. City Court

(Ariz. 1979) 594 P.2d 97 31

South Dakota v. Neville

(1983) U.S.

74 L.Ed. 2d 748 8

v.

TABLE OF CASES

(Continued)

PAGE

State v. Booth

(Wis. 1980) 295 N.W.2d 194 31

State v. Canady

(Wash. 1978) 585 P.2d 1185 31

State v. Carlson

(Minn. 1978) 267 N.W.2d 170 36

State v. Cloutier

(Me. 1973) 302 A.2d 84 36

State v. Cornelius

(N.H. 1982) 452 A.2d 464 30

State v. Helmer

(S.D. 1979) 278 N.W.2d 808 31

State v. Larson

(N.D. 1976) 313 N.W.2d 750 30

State v. Lightle

(Kan. 1972) 502 P.2d 834 36

State v. Michneer

(Ore. App. 1976) P.2d 449 31

State v. Newton

(S.C. 1980) 262 S.E.2d 906 31

State v. Phillipe

(Fla. App. 1981) 402 S.2d 33 30

State v. Shutt

(N.H. 1976) 363 A.2d 406 30

State v. Teare

(N.J. Super. 1974) 336 A.2d 511 30

vi.

TABLE OF CASES

(Continued)

PAGE

State v. Thomas

(Wash. 1969) 454 P.2d 203 36

State v. Watson

(Ohio App. 1975) 355 N.E.2d 883 30

Turpin v. State

(Tex. Crim. App. 1980)

606 S.W.2d 907 31

United States v. ia, 29, 22,

Augenblick 23, 24, 26,

(1969) 393 U.S. 348 28, 34

United States v. Bryant 6, 25,

(D.C. Cir. 1971) 439 F.2d 642 26, 27

United States v. Love

(Sth Cir. 1973) 482 F.2d 213 36

vii.

California Health & Safety Code

§ 436.50

California Vehicle Code

§ 23152(a), (b)

Vt. Stats. Ann.

Tit. 23 § 1203(a) 1981

Fed. R. Crim. 16a

Johnson, The Supreme Court

of California 1975-1576;

Foreward: The Accidental

Decision and How It Happens

(1977) 65 Cal. L. Rev. 231

Note, 75 Colum. L. Rev. 1355 (1976)

Thornton, Uses and Abuses

of Forensic Science

69 A.B.A.J. 288 (March 1983)

22 J. Forensic Science 486 (1977)

Advisory Committee on

Alcohol Determination,

Dept. of Health, Notes

of Meeting Aug. 31, 1982

PAGE

15

30

18

25

33

35

33

33

17

No. 83-305

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1983

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

v.

ALBERT WALTER TROMBETTA, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF CALIFORNIA

————SSS————>_>>[][lSSSeEeE—————EEI~lUC~L— IIS

BRIEF OF THE CALIFORNIA DISTRICT

ATTORNEY'S ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER, THE PEOPLE

OF THE STATE OF CALIFORNIA

This brief is filed pursuant to Rule

36.3 of the Supreme Court Rules,

Consent to file has been granted by the

Honorable John Van De Kamp, Attorney

General of California, Counsel _ for

Petitioner; consent has been denied by

2.

John F, DeMeo, Esq., Counsel for Albert W.

Trombetta. No response has been received

as of February 17, 1984, from Attorney for

Gregory M. Ward, Thomas R. Kenny, Esq.,

Attorney for Michée®l G. Cox, Thomas N.

Muldoon, Clinton J. Brown, Densel lL.

Furner, Patricia L. Keeffe, Herbert J.

Berryessa and James kK. Schneider, and

John A. Pettis, Esq., Attorney for Gail B.

Berry, hereinafter called "defendants". A

letter of consent of the Petitioner has

been filed with the Clerk of this Court.

INTEREST OF AMICUS

The interest of the Appellate

Committee of the California District

Attorney's Association is as set forth in

the motion for leave to file brief amicus

curiae.

FACTS AND PROCEDURAL SETTING

OF THIS CASE

The operative facts of this case have

been thoroughly presented in the opinion

3.

of the California Court of Appeal in

People Vv. Trombetta (1983) 142

Cal.App.3d 138, 190 Cal.Rptr. 319.

Briefly, these operative facts do

not turn upon the individuality of each

situation--there are ten separate cases

before the court--but rather follow

Similar group characteristics. Each

defendant was stopped by a law enforce-

ment officer within the State of

California. During the course of that

detention, the officer formed probable

Cause to arrest the driver for driving

under the influence of intoxicating

1

liquors. Upon being arrested, each

Re California Vehicle Code,

Section 23152(a) and (b), provides:

"(a) It is unlawful for any person who

is under the influence of an alcoholic

beverage or any drug, or under the com-

bined influence of an alcoholic beverage

and any drug, to drive a vehicle. (b)

It is unlawful for any person who has

0.10 percent or more, by weight, of

alcohol in his or her blood to drive a

vehicle."

4.

defendant elected to allow the State to

make a blood alcohol determination of his

breath by means of an instrument known as

the Intoxilyzer.

It is the functioning of that machine

which is at issue. The Trombetta Court,

though summarizing the operation itself,

cited with approval the opinion in People

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

Cal.Rptr. 341, for an explanation of the

machine's functioning. According to

Miller, 52 Cal.App.3d at 668-669, 125

Cal.Rptr. at 322:

"The subject's breath is cap-

tured in a metal chamber, infra-

red energy of fixed intensity

and wave length is passed

through the chamber from one

Side to a photo-electric cell on

the other side. Alcohol absorbs

light of the fixed wave length.

The device computes the loss of

energy, translates the result in

terms of the grams of alcohol

per 100 milliliters of blood,

and prints the result upon a

card. In the prescribed opera-

tion of the device, clear air is

first tested, then the breath of

the subject, The chamber is

5.

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 constitute a test of the

machine, and should show zero

alcohol content. It is

apparent that no test results,

save the printout card, was

available for preservation."

The Court of Appeal concluded in

Trombetta that the Due Process Clause of

the Fourteeneth Amendment required that

when a person was arrested for driving

while under the influence of intoxi-

cating liquors, and elected to take a

breath test, the results would be inad-

missible because the machine did not

retain for possible retesting a portion

of the sample that had been temporarily

collected, and the State did not collect’

an independent sample of the defendant's

breath. (142 Cal.App.3d, at 144, 190

Cal.Rptr., at 323). In the words of the

Court: “Due process demands simply that

when evidence is collected by the State,

6.

as it is with the Intoxilyzer, or any

other breath testing device, law enforce-

ment agencies must establish and follow

rigorous and systematic procedures to pre-

serve the captured evidence or its equiva-

lent for the use of the defendant." (Id.)

The Trombetta Court felt that this

conclusion was mandated by the decision

of the California Supreme Court in People

v. Hitch (1974) 12 Cal.3d 641, 117

Cal.Rptr. 9, which in turn was purportedly

based upon this Court's decision in Brady

v. Maryland (1963) 373 U.S. 83, 87, and

the decision in United States v. Bryant

(D.C, Cir. 1971) 439 F.2d 642, 647-648.

SUMMARY OF ARGUMENT

The Due Process Clause of the

Fourteenth Amendment prevents a criminal

trial from being reduced to a farce or

sham. Above that minimum, the states may

administer their courts in any manner they

choose. The California Court of Appeal in

7.

People i Trombetta (1983) 142

Cal.App.3d 138, 190 Cal.Rptr. 319, did

not follow this very basic distinction.

As the evidence of the result of the

intoxilyzer was admissible before the

advent of possible technology to

"preserve the sample or its equivalent",

the march of technology does not change

what is required by due process,

ARGUMENT

THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT DOES NOT

ENTAIL THAT WHEN A PERSON HAS

BEEN ARRESTED FOR DRIVING UNDER

THE INFLUENCE OF INTOXICATING

LIQUORS AND ELECTS TO TAKE A

BREATH TEST, THAT THE STATE

MUST ALSO PRESERVE THE CAPTURED

EVIDENCE OR ITS EQUIVALENT IN

SOME MANNER.

The Due Process Clause of the

Fourteenth Amendment protects each of

use from conviction for a_ criminal

offense without “due process of law".

While indeed due process is not a static

concept, Frank v. Maryland (1959) 359

U.S. 360, 371-372; Rochin v. California

(1951) 342 U.S. 165, 170, to hold, as the

California Court of Appeal did in this

case, that the State must preserve "the

captured evidence or its equivalent" is a

gross abuse of judicial discretion.

It is an abuse of discretion because

the results are not needed to insure a

fair trial. As such it does a grave dis-

service to the rights of each of use to be

governed by our duly elected legislators.

It also does a grave disservice to the

rights of each of us to be free from the

menace--a menace many times all too

dGeadly--of the drunk driver. This menace

has been recognized both by this court,

South Dakota v. Neville (1983) — U.S.

__- __- 74 L.Fd.2d 748, 755 ("The situ-

ation underlying this case--that of the

drunk @river--occurs with tragic frequency

on our Nation's highways. The carnage

caused by drunk drivers is well documented

9.

and needs no detailed recitation here");

Breithaupt v. Abram (1957) U.S. 432,

439 ("The increasing slaughter on our

highways, most of which should be avoid-

able, now reaches the astounding figures

only heard of on the battlefield"), and

by the California Supreme Court, Burg v.

Municipal Court (1984) 35 Cal.3d 257,

261-262, 198 Cal.Rptr. 145, 146 ("The

G@runk driver cuts a wide swath of death,

pain, grief, and untold physical and

emotional injury across the roads of

California and the nation.").

This Court has clearly over many

years, and in many cases, defined the

meaning of due process in a criminal

trial. In the seminal case of Lisenba

v. California (1941) 314 U.S. 219, this

court said, "As applied to a criminal

trial, Genial of due process is the

failure to observe the fundamental fair-

ness essential to the very concept of

10.

justice." 314 U.S., at 236. Mr. Justice

Roberts continued in that case by saying,

"In order to declare a denial of it we

must find that the absence of that fair-

ness fatally infected the trial; the acts

complained of must be of such quality as

necessarily prevent a fair trial." 314

U.8., Gt 236. In Rochin v. California

(1952) 342 8.8. 165, Mr. Justice

Frankfurter said, "[I]n reviewing a state

Criminal conviction under a claim of right

Guaranteed by the due process clause of

the Fourteenth Amendment from which is

derived the most far reaching and most

frequent basis for challenging state and

Criminal convictions, ‘we must be deeply

mindful of the responsibilities of the

states for enforcement of criminal laws,

and exercise with due humility our nega-

tive function in subjecting convictions

from state courts to the very narrow scru-

tiny which the due process clause of the

ll.

Fourteenth Amendment authorizes'". 342

U.S., at 168. Mr. Justice Frankfurter

continued, "Regard for the Due Process

Clause ‘inescapably imposes upon this

Court an exercise of judgment upon the

whole course of proceedings [resulting

in a conviction] in order to ascertain

whether they offend those canons of

. decency and fairness which express the

notions of justice of English-speaking

peoples even toward those charged with

the most heinous offense.'" 342 U.S.,

at 169. Explaining Rochin in Breithaupt

v. Abram (1957) 352 U.S. 432, 436 this

Court said, "[D]ue process is. not

measured by the yardstick of personal

reaction or the sphygmogram of the most

sensitive person, but by that whole com-

munity sense of ‘decency and fairness’

that has been woven by common experience

into the fabric of acceptable conduct.

It is on this bedrock that this court

12.

has established the concept of due

process." Mr. Justice Douglas said for

this court in United States v. Augenblick

(1969) 393 U.S. 348, 356, "But apart from

trials conducted in violation of express

constitutional mandates, a constitution-

ally unfair trial takes place where the

barriers are so relaxed or forgotten...

that the proceeding is more a spectacle

» « « Or trial by ordeal than a disci-

Plined contest." Coming forward finally a

few more years, Mr. Justice Powell wrote,

"The right of an accused in a criminal

trial to due process is, in essence, the

right to a fair opportunity to defend

against the state's accusations."

Chambers v. Mississippi (1973) 410 U.S.

284, 294.

The ennhiitelee, then, of due process

is the assurance of a fair trial. As such

this Court finds due process as setting

forth what could only in reality be said

13.

to be a minimum, Above that minimum

there are many social choices left to

the states in the manner that trials may

be conducted. Brown v. Mississippi

(1936) 297 U.S. 278, 285 ("The State is

free to regulate the procedure of its

courts in accordance with its own con-

ceptions of policy .. . [But] it does

not follow it may substitute trial by

ordeal."); Rochin, supra. Depending

upon one's view, these choices, when

made, may provide more or less of an

opportunity for fairness. But above

this minimum these are choices to be

made by the legislature, not dictated by

the courts.

The California Court of Appeals in

Trombetta could only have reached the

conclusion it did by committing what

perhaps is a subtle but yet substantive

mistake. To find that due _ process

required preservation of "the captured

14,

evidence or its equivalent" the Court, by

necessity, was finding that the only way

that a defendant could determine the vali-

dity of the results was to conduct a test

on "the captured evidence or its equiva-

lent". If indeed the validity of the

results can only be determined by such a

procedure, then the results when such

technology does not exist would be, by

definition, inadmissible. But yet, if

that is not the case--and it is not--then

the converse cannot also be true, The

Appellate Committee of the California

District Attorney's Association submits

that the logic of Trombetta eschewed this

contradiction, and founders upon it.

The scientific acceptance, and hence,

the concommitant admissibility of breath

alcohol testing has been well established

in California. (People v. Suddeth (1966)

65 Cal.2d 543, 546, 55 Cal.Rptr. 393,

15.

395; Lawrence v. City of Los Angeles

(1942) 53 Cal.App.2d 6, 8, 127 P.2d 288,

289.) While this Court has never spoken

to the issue of what is required for the

admissibility of evidence based upon a

scientific principle, other courts

including California's have. The semi-

nal case in this area must be the deci-

sion in Frye v. United States (D.C. Cir.

1923) 293 F. 1013. The essence of the

Frye test is whether the scientific pro-

cedure is reliable. (293 F. at 1014;

People v. Kelly (1976) 17 Cal.3d 24, 30,

130 Cal.Pptr. 129, 134.) Reliability in

the context of the intoxilyzer is simply

the accuracy of the methodology. Breath

testing equipment in California must be

approved by the California Department of

Health. Their expertise has been

accepted both by the ie mney Cal.

Health & Saf. Code, § APs. 58, and the

16.

courts, People v. French (1978) 77

Cal.App.3d 511, 521, 143 Cal.Rptr. 782;

and Intoximeters, Inc. v. Younger (1975)

53 Cal.App.3d 262, 271, 125 Cal.Rptr. 864,

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

670, 125 Cal. Rptr. 341. The accuracy

and reliability of breath-testing instru-

ments is particularly well-assured in

California:

"First, the instrument on

which the immediate analysis is

performed is one which has been

evaluated and found to meet the

required performance standards.

From the periodic determinations

of accuracy there is current

evidence with regard to the

accuracy of that individual

instrument, There is no human

manipulation associated with the

test: the subject's mouth is on

the instrument, the subject

breathes directly into the

instrument, the instrument

collects the appropriate breath

sample, the instrument does the

analysis without any manipula-

tion by the operator (this is

the reason for technically

untrained officers being per-

mitted to perform breath tests

[Section 1221.1(b)(1)]}), the

result is calculated by the

instrument and the test result

17.

is recorded in printed form by

the instrument. Adding to this

the fact that California

requires the analysis of two

separate breath samples which

cannot differ from each other

by more that 0.02 grams per-

cent, there is not scientific

need to retain a breath sample

because there is no room for

undetected error." Advisory

Committee on Alcohol Determina-

tion, Dept. of Health, Notes of

Meeting of August 31, 1982,

p. 31.

It is indeed so well established

that no appellate court in California

has ever excluded the results of the

intoxilyzer--the instrument in question

in Trombetta--on the grounds of lack of

scientific reliability, nor did--and

this is most important--the Trombetta

court. The issue to be decided in

Trombetta was defined by them in the

following terms: "The issue raised is

whether intoxilyzer breath results are

rendered inadmissible in a trial for

Griving under the influence of intoxi-

cating liquor by virture of the failure

18.

of law enforcement officials to preserve a

retestable breath sample.” 142 Cal.App.

3d, at 140, 190 Cal.Rptr., at 320. Later

in their opinion, they said "In the pres-

ent cases, it is conceded that no effort

was made to capture breath specimens for

later testing by the defense. Defendants

contend that the intoxilyzer evidence

should therefore have been excluded from

trial." 142 Cal.App.3d, at 143, 190

Cal.Rptr., at 323.

That the technology might exist to

Preserve an untested sample of a defen-

Gant's breath might well be relevant con-

Sideration for a policy decision by a

legisiator.* But it is wholly irrelevant

for a due process analysis by a court, and

therein lies the flaw in the Court of

2. Whether or not such policy argu-

ments were considered, one legislature did

enact such a requirement. Vt. Stats. Ann,

tit. 23 § 1203(a) (1981).

19,

Appeal's opinion: it was not a viola-

tion in their view of due process to

admit the the results until the tech-

nology existed. If it was not a viola-

tion of due process in the first

instance, it cannot be now made so by

the advance of technology.

Due process is not license,

Breithaupt, supra. It is rather a very

Gisciplined as well as well defined

constitutional precept. Frank, supra.

That is not to say that it is static.

Rochin, supra. Yet while dynamic it is

not endowed with the power to elevate

ordinary policy determinations--policy

determinations which have nothing at all

to do with a fair trial--to ones of

constitutional dimension. Augenblick,

supra; Lisbena, supra.

The Trombetta court justified their

decision in the following manner.

20.

They found, contrary to the trial

couse,” and contrary to another appellate

court (People v. Miller (1975) 52

Cal.App.3d 666, 125 Cal.Rptr. 341) that

the intoxilyzer did collect the breath of

the subject, i.e., physical evidence. 142

Cal.App.3d at 143-144, 190 Cal.Rptr. at

322. They also "found" that there existed

a device whereby an actual sample of

breath may be collected for later analysis

by an expert of the defendant's choosing

(an “intoximeter field crimper--indium

tube encapsulation kit"). Id. Whereupon

they fashioned a requirement of preser-

vation of the “captured evidence or its

equivalent," 142 Cal.App.3d at 147, 190

Cal.Rptr. at 323, based upon, as noted,

Fitch,

3. There was only testimony taken on

this issue in one of the ten cases before

this Court. It was People v. Albert

Trombetta. The trial judge found that no

sample was collected. See decision, J.A.,

p. 40.

21.

» To Hitch, then, and the cases Hitch

relied upon, Brady and Bryant, we must

turn. -Rather than start with Hitch, we

shall start where Hitch began: Brady v.

Maryland.

In Brady this Court found that the

suppression by the prosecution of a con-

fession of a co-defendant which was

exculpatory violated the Due Process

Clause of the Fourteenth Amendment.

This Court fashioned the following rule

"we now hold that the suppression by the

prosecution of evidence favorable to an

accused upon request violates due pro-

cess where the evidence is material

either to guilt or to the punishment

irrespective of the good faith or bad

faith of the prosecution." 373 U.S., at

87.

The other case relied on extensively

by Hitch was Bryant. While Brady is

Clear, Bryant itself is not and by’ the

22.

time it was interpreted by the California

Supreme Court, the principle of Brady had

been wholly lost.

The confusion engendered by Bryant

stems from its analysis of destruction of

a tape recording in a menage of both

constitutional and statutory authority,

all under the aegis of this Court's deci-

sion in United States v. Augenblick (1969)

393 U.S., at 348.

For the purpose of Bryant, at issue

in Augenblick was a tape recording made of

a confession. At the trial, the existence

of a tape recording was disclosed. 393

U.S., at 353-354. But the government was

unable to produce it. Id., at 354. This

court found that indeed the tapes should

have been preserved under the Jencks

Act--which describes certain discovery

procedures in criminal cases (18 U.S.C.

/

/

23.

§ 3500) “--ana disclosed, but found that

the failure to produce it was not suf-

etosen to infect the defendant's

conviction. 393 U.S., at 356.

The Augenblick Court explained--and

it is this explanation which the Bryant

court ran afoul--"Indeed our Jencks

decision and the Jencks Act were not

cast in constitutional terms . .." 393

U.8., at 356. Significant for deter-

mining the ambit of the decision, the

Augenblick Court said in a passage

completely ignored by Brvant: "(The

court below) in a conscious effort to

undo an injustice, elevated to a consti-

tutional level what it deemed to be an

infraction of the Jencks act and made a

denial of discovery which ‘seriously

impeded his right to a trial' a viola-

/

tion of the Due Process Clause of the

4. It is derived from Jencks v.

United States (1967) 353 U.S. 657.

24.

Constitution.'" 393 U.S., at 356. But

this Court disagreed. No error--certainly

no error of constitutional magniture--had

been committed by the loss of the tape,

This Court wrote; "It may be that in some

situations, denial of production of a

Jencks Act type of statement might be a

denial of a Sixth Amendment right." (Id.)

Lest there by any mistake that what this

Court was positing was indeed a hypotheti-

Cal situation, the Court continued by

saying, “But certain it is that this case

is not a worthy candidate for considera-

tion at the constitutional level." (Id.)

As we have noted above, this Court said,

"But apart from trials conducted in viola-

tion of express constitutional mandates, a

constitutionally unfair trial takes place

only where the barriers and safeguards are

so relaxed or forgotten ... that the

proceeding is more a spectacle ... or

trial by ordeal, ... than a disciplined

25,

contest." Id. And Augenblick's was not

such a trial. Id.

Bryant involved the "loss" of tape

recordings made by police officers of

purchases of narcotics. Under the

Jencks Act,> the court held that the

tape recording was one that should have

been preserved and disclosed. (439

F.2d, at 649-650.) Bryant then turned

to sanctions for its loss. Interpreting

Augenblick, the RBrvant court indicated

that the "“key" would be the circum-

stances of its loss. 439 F.2d, at 65l.

"[Augenblick] also suggests that, while

sanctions should be imposed in cases of

bad faith suppression of evidence, an

exception will be made for good faith

Pe The court also relied on Rule

16(a), Fed. R. Crim. P. which provides

"for Court ordered discovery of ‘written

Or recorded statements or confessions

made by the defendant.'" and Rule 16(b)

which "makes discoverable before trial

"books, papers, documents, tangible

objects . ..'" 439 F.2d., at 649,

26.

loss." Id. All of this Bryant found to

be "explicitly based on constitutional

reasoning.” Id. Finally Bryant found

that where evidence has been destroyed,

the convictions will not be reversed only

so long as "the government made ‘earnest

efforts' to preserve critical materials

and to find them once a discovery request

is made." Id.

In interpreting Augenblick, the

Bryant court made two basic errors.

Augenblick was not “explicitly based on

constitutional reasons". At most the

Augenblick court indicated that in some

circumstances the denial of production of

a Jencks Act type of staterent “might

be a denial of a Sixth Amendment right."

Augenblick, supra, 393 U.S., at 356. This

Court in Augenblick explicitly held that

where the ultimate fate of a missing tape

remains "a mystery," such does not

implicate the Due Process Clause. d.

27.

The second error is as fundamental. The

Bryant court contrasted their situation

with Brady in the following way: in

Brady the nature of the lost evidence

was known, Bryant, supra, 439 F.2d, at

647. Whereas in their case the nature

of the lost evidence was not. Bryant,

supra, 439 F.2d, at 647-648. We dis-

agree, The lost tape recordings at

issue in Bryant were of conversations

with a government agent who related them

in court. Id., at 645. The Pryant

court said about these tapes, "[{I]t is

possible, after all, that the tapes

might have revealed [that the agent was

mistaken in his recollection.]" 439

F.2d, at 645 (emphasis added). Without

wholly debasing the meaning of the word

"possible", there was no _ possibility

within any meaningful sense. The only

available evidence established that such

a result was impossible.

28.

In the same sense that Bryant used

the word "possible," it would then be

possibile that everyone present at the

conversation talked only about football,

opera or philosophy, or that the tape

would reveal that no one at all was

present, not even the agent. Using the

meaning of “possible” ascribed to it by

the Bryant court, anything is "possible."

Such contingent speculation demeans due

process. In infusing due process with

such contingent speculation, it runs afoul

of Augenblick. In Augenblick, this Court

did not speculate that the lost tape might

have indicated that the defendant did not,

contrary to the testimony of the police

officer, confess. 393 U.S., at 355-356.

By not so speculating, this Court clearly

had indicated that contingent speculations

are not the stuff of due process. Bryant,

then, is a very bad decision.

29.

We now come forward to Hitch.

Hitch, like Trombetta, involved a prose-

cution for driving while under’ the

influence of intoxicating liquors. In

Hitch, the defendant elected to have his

breath tested by means of a machine

called "Breathalyzer". (12 Cal.3d, at

644, 117 Cal.Rptr., at 11.) In essence,

the defendant would blow into’ the

breathalyzer which collects his breath

in a test ampoule. Id. Then by means

of a licht beam this test ampoule would

be compared to a known reference

ampoule. Id. Both ampoules were cap-

able of preservation, but both were

destroyed. (12 Cal.3d, at 645-646, 117

Cal.Rptr., at 11-12.) Based upon Brady

and more particular Bryant, the

California Supreme Court found Federal

Due Process to have been transgressed by

this destruction and consequently held

that there was a duty to preserve the

30.

test ampoules, (12 Cal.3d, at 645-646,

117 Cal.Rptr., at 11-17.) The California

Supreme Court thereby committed the same

error as was committed by Trombetta; if

the only way the accuracy of the machine

can be determined is by checking the

actual samples themselves, then the

results in the first instance should not

be admissible.

As of this date, more cases have

rejected Hitch, vis-a-vis retention of

ampoules from breathalyzers, than have

followed it. See State v. Phillipe (Fla.

App. 1981) 402 S.2d 33, 34; People v.

Stark (Mich. App. 1977) 251 N.W.2d 574,

575-577; State v. Teare (N.J. Super. 1974)

336 A.2d 511, 513; People v. LaPree

(Rochester City Ct. 1980) 430 N.Y.S.2d

778, 781-781; State v. Larson (N.D. 1976)

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,

31.

884-885; Edwards v. State (Okla. Crim.

App. 1976) 544 P.2d 60, 62-64; Edwards

v. Oklahoma (W.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. Following

Hitch are: Lauderdale v. State (Alaska

1976) 548 P.2d 376; Scales v. City Court

(Ariz. 1979) 594 P.2d 97; People v.

Ricter (N.Y. Sup. 1980) 423 N.Y.S.2d

610; State v. Michneer (Ore. App. 1976)

____ P.2d 449; State v. Booth (Wis. 1980)

295 N.W.2d 194,

In People v. Santiago (Sup. Ct.,

N.Y. Co., 1982) 455 N.Y¥.S.2d 511, the

court rejected Hitch only after con-

ducting a test to see whether Hitch's

yo

assumption that a retest was possible was

valid. Id., at 516-517. The result of

the test should be shocking to those who

believe, as Hitch did, that a retest was

possible. Though "possible," the results

were not at all accurate; indeed a retest

showed that there was alcohol present when

there was none in the breath! Id.

In the view of the Appellate

Committee of the California District

Attorney's Association, an even more sig-

nificant rejection of Hitch has come from

the scientific community. The Committee

on Alcohol and Drugs of the National

Safety Council said in a formal statement

issued on October 2, 1975:

"Some issues have been raised in

the California Supreme Court's

decision in People v. Hitch and

allied cases in which the court

hel4 that chemicals and ampoules

used in breath test cases must

be preserved for possible pre-

trial examination and analysis

by defendants should they so0

demand it. A review of the

33.

scientific merits of this posi-

tion has been made. It is

concluded that at the present

time, a scientifically valid

procedure is not known to be

available for the re-examina-

tion of a Breathalyzer ampoule

that has been used in the

breath test for ethanol, in

order to confirm the accuracy

and reliability of the original

breath analysis." 22 J.

Forensic Science 486 (1977)."

Recently, Professor John Thornton,

an associate professor of forensic

science in the Department of Riomedical

and Environmental Health Science at the

University of California at Berkeley,

wrote of Hitch that: (1) there was

scientifically no possible way to retest

the ampoule, and (2) such analysis

"would have been meaningless." Thornton,

Uses and Abuses of Forensic Science, 69

A.B.A.J. 288, 292 (March 1983). He con-

tinued, "The decision .. . was foolish

from the standpoint of science.” Id.

Hitch was an "accidental" decision.

-

Johnson, The Supreme Court of California

34.

1975-76: Forward: The Accidental

Decision and How it Happens (1977) 65 Cal.

L. Rev. 231, 234-239. In terms of both

science and the law, it was ae bad

accident.

Hitch, to the extent that it follows

Bryant's error, diverges from this Court's

definition of due process and the meaning

of Brady. The evidence in Hitch was like

the tape in Augenblick: neither are like

the confession in Brady. In Hitch, it is

only contingently ankthie that a retest

would contradict the results. Such specu-

lation does not implicate the Due Process

Clause of the Fourteenth Amendment.

Lisenba, supra; Rochin, supra; Breithaupt,

supra; Chambers, supra; Augenblick, supra.

One court has concluded that indeed

Hitch does unjustifiably extend Brady.

Fdwards v. Oklahoma (W.D. Okla. 1976) 429

F.Supp. 668, 671, rev'd on other grounds,

577 _F.2d 1119 (10th Cir. 1978). That

35.

court wrote: "The Hitch court found

that it sufficed that there was a

‘reasonable possibility' that they [the

ampoules from the breathalyzer] might

constitute favorable evidence. This

extension of the Brady doctrine is not

justified as a matter of constitutional

law. Brady focused upon the harm to the

defendant resulting from nondisclosure.

Hitch diverts this concern from the

reality of prejudice to speculation

about contingent benefits to the

defendant. Hitch was, as Trombetta is,

6

but legislation. As such it provides

a i ee ly

6. One author has also seen through

the due process gloss of Hitch. See

Note, 75 Colum. L. Rev. 1355, 1376

(1976).

36.

no basis for the Trombetta decision of the

-

California Court of Appeal.

F

~ "= ™ SS

Re The conundrum that unprincipled

application of due process causes can be

best seen by the fact that there are many

decisions which find no due process viola-

tion when a piece of evidence which must

be tested to determine its contents is

consumed in the testing process, See

People v. Vick (1970) 11 Cal.App.3d 1058,

TSee, 90 Cal.Retr. 236, 241-242 (autopsy;

body destroyed); People v. Shafer (1950)

101 Cal.App.2d 54, Fs: 224 P.2d 778, 780

(chemical test; substance destroyed);

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

(chemical test; pills destroyed); State v.

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

(chemical test; bloodstain destroyed);

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

(chemical test; pill destroyed); Partin v.

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

test; cocaine destroyed); United States v.

Tove (5th Cir. 1973) 482 F.2d 213, 218219

(chemical test; gun powder residue

destroyed); State v. Thomas (Wash. 1969)

454 P.2d 203 (chemical test; marijuana

sample destroyed.

37.

CONCLUSION

The Appellate Committee of the

California District Attorney's

Association respectfully submits that

for the foregoing reasons the Due

Process Clause of the Fourteenth

Amendment does not require that’ the

State obtain either "the capture of

evidence or its equivalent." The deci-

sion of the California Court of Appeal

must be reversed.

DATED: February 23, 1984

Respectfully submitted,

Appellate Committee of the

California District Attorney's

Association

BY: MICHAEL E. NAIL

District Attorney

Solano County

’

Deputy District Attorney

Solano County

Attorneys for Amicus Curiae