# Amicus Brief — California v. Trombetta

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0305%3A08

## Record

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

## Text

_
\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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0305%3A08. Public record. Not legal advice.