PEOPLE v. HITCH

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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Appellant, v. Warner Herbert HITCH, Defendant and Respondent.

Cr. 22737.

Decided: February 21, 1973

Woodruff J. Deem, Dist. Atty., and Nancy Sieh, Deputy Dist. Atty., for plaintiff and appellant. Roger W. Borrell, Oxnard, for defendant and respondent.

This is an appeal from an order of the Ventura Municipal Court dismissing a complaint charging driving while under the influence of alcohol in violation of Vehicle Code section 23102. The matter reaches us on certification from the Appellate Department of the Ventura Superior Court. We reverse the order of dismissal.

Defendant was arrested for violation of Vehicle Code section 23102 on September 10, 1070. A breathalyzer test was administered by the arresting officer. The breathalyzer used in the test is an apparatus designed to determine the alcoholic content of a breath sample introduced by the suspect's blowing into a tube. The sample is trapped in the machine and is permitted to bubble through a test ampoule. The ampoule is a glass phial containing three cubic centimeters of .025 percent potassium dichromate in a 50 percent by volume sulphuric acid solution. Alcohol, if any, in the breath sample causes a change in color and in the light transmissibility of the solution correlative to the amount of alcohol present. The change in light transmissibility is registered upon a meter which calculates the degree of alcohol in the suspect's circulatory system.

The amount of fluid in the test ampoule is determined by the administering officer by reference to a ‘go no go’ gauge. If the amount is inadequate, the ampoule is not used. The machine is calibrated by the testing officer by use of a reference ampoule, one identical in specification with the test ampoule but which remains intact while the top of the test ampoule is broken to permit the breath sample to bubble through. Once calibrated, the breathalyzer is set by the officer so that, when a reading is taken, a mark appears on a graph paper.

When defendant was arrested the procedure normally used in the breathalyzer test was applied. It disclosed a blood alcohol level of .20 milligrams percent blood alcohol. Pursuant to a standard practice of the Ventura police, the content of the test ampoule was poured into a bottle and sent to the Ventura County crime laboratory. The glass phial was discarded. Also pursuant to a standard practice, the Ventura County crime laboratory subsequently discarded the content of the bottle sent to it. The destruction of the phial and its content was not pursuant to a plan or intent to suppress evidence.

Having been charged with a violation of Vehicle Code section 23102, defendant moved to suppress evidence of the breathalyzer test and to dismiss the complaint on the ground that the unavailability of the phial and its content denied him due process of law. Expert testimony established to the satisfaction of the trial court that: (1) the quantity of three cubic centimeters of solution in the test and reference ampoules is critical to the test because a lesser amount of solution will show an artifically high blood alcohol level while a greater amount will show an artificially low reading; (2) the quantity of fluid can be ascertained by a subsequent test if the fluid is retained; (3) the amount of chromium metal present in the test ampoule may be determined by a subsequent test if the solution is retained; (4) if the amount of potassium dichromate varies more than 33 1/3 percent from that provided in specifications, the result of the breathalyzer reading will be affected; (5) the optical characteristics of the glass phial constituting the container of solution used in the test ampoule may be ascertained at a later date if the phial is retained; (6) optical defects in the phial may alter the results of the breathalyzer test depending upon how it is placed in the machine and whether it is moved during the test; and (7) under very limited circumstances, it is possible to retest the test ampoule and its solution if they are retained to determine roughly the accuracy of the results originally recorded.

The trial court determined that the intentional although nonmalicious destruction of the phial and its content denied defendant access to information that might be helpful to his defense, denied him due process of law, and also denied to him ‘full information concerning the test’ required to be furnished by Vehicle Code section 13354. It dismissed the complaint upon the ground that destruction of the ampoule and its content made a fair trial impossible. The appellate department of the superior court reversed the judgment of dismissal. With a dissent, that court also held that the destruction of the phial and its content rendered the results of the breathalyzer test inadmissible. The appellate department of the superior court certified the matter to us to secure uniformity of decision and to settle important questions of law. We accepted certification.

Two principal issues are presented by the intentional but good faith destruction of the test ampoule and its content in the case at bench: (1) does that destruction deny the defendant his right to a disclosure of full information concerning the breathalyzer test as required by Vehicle Code section 13354, subdivision (c); and (2) does the destruction constitute a denial of due process? We conclude that defendant has not been denied either a statutory or constitutional right.

Vehicle Code section 13353 requires that a person arrested with probable cause to believe that he has been driving a motor vehicle upon a highway while under the influence of alcohol must submit to a test of blood, breath, or urine to determine the alcohol content of his blood. He has his choice of which of those tests is to be administered and may, at his expense, require additional tests to be performed. Vehicle Code section 13354 provides in subdivision (c) that ‘[U]pon the request of the person tested full information concerning the test taken at the direction of the peace officer shall be made available to him or his attorney.’ Title 17, California Administrative Code, sections 1219.1, subsection (d), and 1219.2, subsection (a), require that portions of a sample of blood or urine taken in a test administered pursuant to Vehicle Code section 13353 be retained. There is no similar provision with respect to retention of a breathalyzer test ampoule or its content.

The Court of Appeal in Covington v. Municipal Court, 273 Cal.App.2d 470, 78 Cal.Rptr. 563, dealt with facts identical with those here present. It expressly rejected a defendant's contention that destruction of a breathalyzer test ampoule and its content denied him the full information of the test which Vehicle Code section 13354, subdivision (c), requires be furnished. (273 Cal.App. at p. 477, 78 Cal.Rptr. 563.) Our Supreme Court denied hearing in Covington. We view the holding of that decision as binding upon us and accordingly conclude that the destruction of the test ampoule and content in the case at bench did not deny defendant a right granted him by Vehicle Code section 13354, subdivision (c).

Defendant's contention of a denial of due process of law by reason of the destruction of the ampoule also does not present a matter of first impression. However, the two Court of Appeal decisions which have considered the due process implications of facts identical to those here present are not consistent. Covington v. Municipal Court, supra, 273 Cal.App.2d 470, 78 Cal.Rptr. 563, in denying a writ of prohibition against prosecution for a violation of Vehicle Code section 23102, holds that destruction of the ampoule and its content does not deny a defendant due process of law so as to require either dismissal or suppression of the results of the breathalyzer test unless the destruction occurs for the deliberate purpose of suppressing evidence. (273 Cal.App.2d at p. 472, and fn. 6 at p. 476, 78 Cal.Rptr. 563.) On identical facts, Van Halen v. Municipal Court, 3 Cal.App.3d 233, 83 Cal.Rptr. 140, by dictum implies that introduction of evidence of such a test when the ampoule and its content have been destroyed, even in good faith, will deny the defendant due process of law. (3 Cal.App.3d at pp. 236–238, 83 Cal.Rptr. 140.) Hearing was denied in Van Halen as it was in Covington.

We view the direct holding in Covington, rather than the implication in Van Halen, as binding upon us. (See also United States v. Sewar, 468 F.2d 236 [9 Cir. 1972]. Moreover, our independent analysis of decisional law leads us to the same conclusion as that reached by the Covington court. It is significant that the character of destruction of a breathalyzer test ampoule is different from the denial of access of the defendant to facts present in cases such as Eleazer v. Superior Court, 1 Cal.3d 847, 83 Cal.Rptr. 586, 464 P.2d 42, and People v. Goliday, Cal.3d, 106 Cal.Rptr. 113, 505 P.2d 5371.) Where, as in Eleazer and Goliday, the police and prosecuting authority fail to notify a defendant of witnesses possessed of knowledge material to guilt and to use reasonable diligence to maintain contact with them, the defendant is denied any possible benefit flowing from the testimony of those witnesses if they cannot be found at trial. The denial occurs without opportunity to the defendant to prevent it. In the case of destruction of a breathalyzer ampoule, the defendant is denied possible impeachment of the results of the test because he elected the breathalyzer rather than a urine or blood test to which he was entitled by Vehicle Code section 13353, or because he did not choose to have an additional test performed at his expense. Had he selected one of the other procedures, the defendant would have had the benefit of a retained and retestable sample. Realistically, the damage, if any, to the defendant's cause occurs because he is not advised that the breathalyzer ampoule will not be retained while fluid samples will.

If the matter were one of first impression, the lack of advice might itself present a problem of denial of due process of law. Our Supreme Court has, however, in an analogous area, ruled that it is not. In Kesler v. Department of Motor Vehicles, 1 Cal.3d 74, 81 Cal.Rptr. 348, 459 P.2d 900, the Court held tat a demand by a drunk driving suspect that he be administered tests of his blood, breath, and urine constituted a refusal to select one of the tests, thus triggering a suspension of the suspect's driver's license pursuant to the implied consent law. (Veh.Code, § 13353.) In so doing, it rejected a contention by the suspect that the failure of the administering officers to respond to his demand with advice, that pursuant to Vehicle Code section 13354, subdivision (b), two of the tests would be permitted only at his expense, constituted a denial of due process of law. (1 Cal.3d at pp. 78–79, 81 Cal.Rptr. 348, 459 P.2d 900.) The holding that the failure of explanation in Kesler was not a denial of due process, compels a holding here that a failure to explain the difference in retention policies of the results of the three tests was also not a denial of due process.

We thus conclude that the good faith intentional destruction of the breathalyzer test ampoule and its content, in the case at bench, neither permits dismissal of the complaint nor allows the suppression of evidence of the results of the test. Accordingly, the judgment (order) of dismissal is reversed and the matter is remanded to the municipal court for trial.

THOMPSON, Associate Justice.

WOOD, P. J., and LILLIE, J., concur.

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