Baca v. Smith, 14500

• Decision Date: 27 November 1979
• Docket Number: No. 14500,14500
• Citation: 604 P.2d 617,124 Ariz. 353
• Parties: Jesus V. BACA, Petitioner, v. The Honorable Ralph G. SMITH, Judge of Division 1 of City Court, The Honorable Alan Hammond, Chief Magistrate of City Court, The City Court of Phoenix, Real Parties in Interest, Respondents.
• Court: Arizona Supreme Court

Page 617

604 P.2d 617

124 Ariz. 353

Jesus V. BACA, Petitioner, v. The Honorable Ralph G. SMITH, Judge of Division 1 of City Court, The Honorable Alan Hammond, Chief Magistrate of City Court, The City Court of Phoenix, Real Parties in Interest, Respondents.

No. 14500.

Supreme Court of Arizona, In Banc.

Nov. 27, 1979.

Rehearing Denied Jan. 3, 1980.

Solomon, Relihan & Blake, by Martin J. Solomon, Phoenix, for petitioner.

Andy Baumert, Phoenix City Atty., by George H. Bonsall, Asst. City Prosecutor, Phoenix, for respondents.

STRUCKMEYER, Vice Chief Justice.

This special action was brought by Jesus V. Baca against respondent, The Honorable Ralph G. Smith, and others, asserting that the failure to suppress the results of a gas chromatograph intoximeter taken after an arrest for driving while under the influence of intoxicating liquor was a denial of due process of law. This Court has jurisdiction by Art. 6, § 5(4) of the Constitution of Arizona and 17A A.R.S., Special Actions, Rules of Procedure, Rules 3(b) and (c).

Petitioner was arrested in Phoenix in the early morning hours of April 2, 1979, and charged with driving while under the influence of intoxicating liquor, a violation of A.R.S. § 28-692(A). He was thereafter administered a gas chromatograph intoximeter test to determine his blood alcohol level. The gas chromatograph intoximeter test is administered by means of two different machines. There is a device by which the suspect blows directly into the machine which tests the breath as it passes through the machine and indicates the result on a digital display and a printout. In this test, the sample of the suspect's breath is destroyed by the analysis. It is our understanding that petitioner's breath was tested by this machine.

However, there is also what is called a field collection unit. In the field collection unit, the subject is asked to blow through a mouthpiece connected to the machine. The breath passes through a short length of indium tubing. At the proper time, which is at the end of the exhalation, a handle attached to a crimper device is closed, crimping the indium into three separate compartments and sealing off three specimens of the last breath to leave the subject's lungs. The indium tubing is then sent to the blood alcohol section of the City of Phoenix Police Department, where it is analyzed. Analysis is made by a machine called a G.C.I. Mark IV. A special compartment in the G.C.I. Mark IV is opened and one of the three specimens which have been obtained is placed in the compartment, where the indium capsule is perforated. The breath and the alcohol are separated and detected in what is described as a flame ionization detector. The result is shown on a digital display and printed out on a strip chart recording. A second specimen is then analyzed. This procedure takes about three minutes after the G.C.I. Mark IV has been properly set up.

Petitioner on August 28, 1979 filed a motion to suppress the result of the police test. This motion was denied by respondent judge. We accepted jurisdiction because of the assertion that five of the regular appointed City of Phoenix Municipal Court Magistrates routinely grant suppression of the results of the intoximeter, while eight routinely deny the suppression.

On April 18 of this year, this Court handed down its opinion in Scales v. City Court of Mesa, 122 Ariz. 231, 594 P.2d 97 (1979). There, Scales was arrested for driving while intoxicated and given a breath test by means of a Breathalyzer. The Breathalyzer, as described in the opinion, forces a sample of a suspect's breath through a test ampoule containing certain chemicals. The alcohol contained in the breath reacts with the chemicals in the ampoule, causing them to change color. The machine then causes a light to pass through the test ampoule and the color of the light determines the level of the suspect's blood alcohol content. Scales urged that due process required the test ampoule be preserved so it could be inspected by petitioner. We held:

"Destruction of the ampoule deprives the defendant of a crucial source of evidence with which to attack the validity of the test reading and hence the presumption (of intoxication)." Id. at 234, 594 P.2d at 100.

We concluded that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), required the retention of the Breathalyzer ampoule because its subsequent physical examination might disclose matters which could cause the result to be incorrect.

The question presented now for determination is whether, when a sample of a suspect's breath is consumed in the analysis, another sample must be taken and preserved for the private use of the suspect.

Respondents urge one jurisdiction has specifically rejected the argument that due process requires the preservation of a suspect's breath, citing People v. Miller, 52 Cal.App.3d 666, 125 Cal.Rptr. 341 (1975). That case was a consolidation of three prosecutions transferred to the California Court of Appeals, 1st District, Division 3. The instrument used was an "Omicron Intoxilyzer", similar to the intoximeter in that it does not leave any residual evidence which can be retained for subsequent examination other than a printout card of the results. In holding that a suspect's breath was not required to be reduced to a preservable form before the results of its chemical testing would be held admissible, the court said:

"Hitch (People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (1974)) merely holds that evidence which the prosecution once possesses must be held. The test by intoxilyzer, in the language of Bryant (U. S. v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971)), may have 'gathered' evidence in the sense of placing the breath in the chamber, but it was not evidence of which the government could 'take possession.' The only element reducible to possession was the printout card, which has been preserved. The machine itself remains available. * * * We find it no answer to say * * * that another device, the breathalyzer, could have been used and that, for some undetermined time, it would have preserved a sample chemical subject to reasonably accurate testing. * * *" Id. at 670, 125 Cal.Rptr. at 343.

The California court did not reach the question we are asked to decide here; namely, whether a sample of a suspect's breath must be saved for his later independent use.

Respondents also rely on State v. Reyna, 92 Idaho 669, 448 P.2d 762 (1968), a case which rejected the argument that the state had to take affirmative steps to collect the names of witnesses, patrons of a bar, whose testimony the defendant believed would be exculpatory on the issue of his sobriety. The Idaho court said that the prosecution cannot be said to conceal evidence it does not possess or control.

Petitioner relies strongly on the holding in Garcia v. District Court, 21st Judicial District, 589 P.2d 924 (Colo.1979). It was a consolidation of two prosecutions. In the prosecution of Andrew Joe Garcia, Garcia was operating a motor vehicle when he was stopped and given a roadside sobriety test by means of a Breathalyzer, the same machine considered in Scales v. City Court of Mesa, supra. In the companion case of Kenneth Ray Feland, the blood alcohol test was performed with a "Luckey Alco-Analyzer" gas chromatograph. Seemingly, the Luckey Alco-Analyzer performs the test on a suspect's breath in a manner somewhat similar to that of the intoximeter used in the present case. Feland, prior to trial, asked that he be provided with a sample of his breath taken at the time of the blood alcohol test and was informed that no separate sample of his breath had been preserved. At Feland's trial, an expert witness testified...