Edwards v. State

• Decision Date: 24 November 1975
• Docket Number: No. M--75--348,M--75--348
• Citation: 544 P.2d 60
• Parties: Rhenna Navajo EDWARDS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 60

544 P.2d 60

Rhenna Navajo EDWARDS, Appellant, v. The STATE of Oklahoma, Appellee.

No. M--75--348.

Court of Criminal Appeals of Oklahoma.

Nov. 24, 1975.

Rehearing Denied Jan. 5, 1976.

Peter K. Schaffer, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., Jahn D. Rohrer, Legal Intern, for appellee.

OPINION

BRETT, Presiding Judge:

Appellant, Rhenna Navajo Edwards, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Oklahoma County, Case No. CRM--74--3211, for the offense of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, a violation of 47 O.S. § 11--902. Defendant was sentenced to serve a term of six (6) months imprisonment which was suspended except for the first ten (10) days, and was fined in the amount of One Hundred Fifty ($150.00) Dollars. From said judgment and sentence a timely appeal has been perfected to this Court.

Defendant's sole assignment of error constitutes a question of law, the resolution of which neither requires nor necessarily turns upon a recitation of the facts therein. Defendant contends that the District Court committed error when, during a hearing to consider a Motion to Suppress Evidence, it refused to grant defendant's Motion and ruled to admit the evidence in question, specifically, the results of a breathalyzer test to which defendant had voluntarily subjected himself. Defendant maintains that the intentional though non-malicious destruction of certain components employed in the instrument's normal operation deprived him of an opportunity to examine the evidence against him and amounted to the destruction of material evidence which could have potentially established his guilt or innocence; that the District Court's admission of the results of the breathalyzer test deprived defendant of a fair trial and thereby denied him his right to due process. In so claiming, defendant predicates his argument on the opinion issued by the Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1960), wherein the accused had requested and was denied information deliberately withheld by the State, a violation, it was found, of the accused's right to due process. Though the suppression of evidence is not at issue here, an important factor which distinguishes this case from Brady, its destruction does pose a similar problem in that it is no longer available and the possibility for re- examination simply does not exist. Defendant argues that if the evidence destroyed had been preserved, it would have afforded him an opportunity not only to invalidate the test result, but also to obtain evidence material to a determination of his innocence as to the offense charged. He maintains that, in its absence, the District Court, if the ruling in Brady is to be observed and his right to a fair trial to be protected, had no other choice but to exclude the test result from its deliberations. With this we cannot agree.

The breathalyzer, an apparatus especially designed to analyze a sample of breath as a means by which the alcoholic content of the blood may be determined, is considered a reliable device for measuring levels of intoxication. Alexander v. State, Okl.Cr., 305 P.2d 572 (1956). Defendant does not purport to question the court's acceptance of either the technological basis upon which the instrument operates or the results derived from its use generally, rather, he does instead claim as his right the opportunity to challenge the technical accuracy of the particular device employed in the examination to which he himself was subjected. The component to which he specifically refers may be described as a sealed glass vial or ampoule, containing a prepared, mixed chemical solution which is considered an essential factor in this system of measurement. It is the content of the ampoule to which the sample breath is exposed, and once exposed, acts to directly influence the reading of a gauge on the device which is calibrated in terms of percentage of alcohol in the blood. Defendant, in support of his argument, almost totally relies upon the decision rendered in People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (1974), by the California Supreme Court wherein the ampoules, in a situation which compares similarly to the one here present, were deemed to have a sufficiently important evidentiary nature that their actual destruction, by the result of established procedure, 'could only operate to deprive (the) defendant of a fair trial.'

We understand the opinion proferred in Hitch to mean that both were the evidence is material to the issue of guilt or innocence with respect to the charge against the accused, and where it is clearly a matter involving the failure of the prosecuting authorities to take adequate steps to preserve the same, the only fair and proper remedy available to the court would include the exclusion of said evidence from its consideration. However, we are not convinced as was the California Court in Hitch that the evidence here in question is actually material with respect to the issue of the guilt or innocence of the defendant. True, given the very definite wording of 47 O.S. § 756, subsection c, in regard to the specific measurement established by the Legislature as prima facie evidence of a state of intoxication, we cannot do other than accept defendant's contention that the results of the breathalyzer test would constitute material evidence with a direct bearing upon defendant's guilt or innocence. See Custer v. Oklahoma City, Okl.Cr., 481 P.2d 788 (1971). This is not to suggest,...