Edwards v. State of Oklahoma, No. CIV-76-0389-D.

• Court: United States District Courts. 10th Circuit. Western District of Oklahoma
• Writing for the Court: Peter K. Schaffer, Oklahoma City, Okl., for petitioner
• Citation: 429 F. Supp. 668
• Parties: Rhenna Navajo EDWARDS, Petitioner, v. The STATE OF OKLAHOMA, Respondent.
• Decision Date: 23 August 1976
• Docket Number: No. CIV-76-0389-D.

429 F. Supp. 668

Rhenna Navajo EDWARDS, Petitioner,
v.
The STATE OF OKLAHOMA, Respondent.

No. CIV-76-0389-D.

United States District Court, W. D. Oklahoma.

August 23, 1976.

Peter K. Schaffer, Oklahoma City, Okl., for petitioner.

Larry Derryberry, Atty. Gen. by Paul Crowe, Asst. Atty. Gen., Oklahoma City, Okl., for respondent.

ORDER

DAUGHERTY, Chief Judge.

The above-named habeas petitioner was found guilty on March 17, 1975, after trial by the court without a jury of the crime of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor in violation of 47 O.S. § 11-902, in case No. CRM-74-3211, District Court of Oklahoma County, Oklahoma. The court then sentenced the petitioner to serve a term of six months imprisonment in the County Jail but suspended the execution of the sentence to confinement except for the first 10 days. A fine of $150.00 and the payment of court costs were also imposed. The petitioner claims that his conviction is constitutionally invalid because the trial court improperly overruled his Motion to Suppress evidence of a breathalyzer test and its results on the ground that the non-malicious destruction of the test ampoule and its contents constituted destruction of material evidence and therefore a denial of due process. State remedies have been exhausted by a direct appeal and appropriate post conviction proceedings.

At the threshold, the respondent contends that this court has no jurisdiction to entertain this action because the petitioner did not at the time the Petition herein was filed meet the "in custody" requirements of the Habeas Corpus Statute, 28 U.S.C. § 2241. It appears that after petitioner's conviction had been affirmed on direct appeal the sentence to 10 days confinement was executed but the petitioner was not immediately released because of his

429 F. Supp. 669

inability to pay the fine imposed. On January 30, 1976, he was released on his personal recognizance upon his agreement to satisfy the fine in accordance with a payment schedule and subject to conditions of the suspended sentence

The Petition herein was filed on May 11, 1976. The jurisdiction of the court to entertain this case must be determined by petitioner's status on that date. Carafas v. La Vallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). When this action was commenced the petitioner was subject to reincarceration if he failed to meet the schedule for fine payments or if he violated the conditions of his probation during the unexpired term of his suspended sentence. In Edmunds v. Won Bae Chang, 509 F.2d 39 (CA9 1975), relied upon by respondent, the court refused to enlarge the concept of "custody" to embrace a "fine only" sentence. Similarly, in Russel v. City of Pierre, State of South Dakota, 530 F.2d 791 (CA8 1976), the other case cited by respondent, the sole punishment involved was the $25.00 fine and the court concluded that this was not sufficient to invoke the Habeas Corpus jurisdiction of the federal courts. The petitioner in this case, however, was subject to more than a simple fine. A petitioner who is released from jail on probation is still in custody within the meaning of the Habeas Corpus Statute. Lebron v. United States Secretary of the Air Force, 392 F.Supp. 219 (S.D.N.Y.1975); Marquardt v. Gagnon, 314 F.Supp. 709 (E.D.Wis.1970). Cf. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). In Walker v. State of North Carolina, 262 F.Supp. 102 (W.D.N.C.1966) the court held that a 30 day suspended sentence which carried with it the threat of confinement for failure to comply with certain conditions was sufficient to establish Federal Habeas Corpus jurisdiction. Close to the facts in this case are those considered by the court in United States ex rel Wojtycha v. Hopkins, 517 F.2d 420 (CA3 1975). There the petitioner was sentenced to a one year suspended jail term, a fine of $1000.00 and probation conditioned upon the payment of $2500.00 cost and the court found that the statutory "in custody" requirement had been satisfied. The court concludes therefore that jurisdiction in this case does exist and the respondent's Motion to Dismiss predicated on the lack of jurisdiction will be overruled.

The determination of the merits of the controversy involves the consideration of these facts. The petitioner on November 3, 1974, was observed by an Oklahoma City Police Officer to be driving his vehicle in an erratic manner, weaving back and forth over the center line. When the officer stopped the vehicle, she detected the strong odor of alcohol on his breath. The petitioner agreed to take a breathalyzer test. It was administered by an officer licensed as a supervisor and operator of the instrument as provided by state law and the result indicated a .26% by weight of alcohol in petitioner's blood.¹ The Oklahoma Statutes

429 F. Supp. 670

provide that the result of such a test may be received in evidence if the test has been performed according to methods approved by the Board of Chemical Tests for Alcoholic Influence. 47 O.S.1971 § 751-759. It was stipulated at the trial that the operator had conducted the test and destroyed the test ampoule in strict compliance with the rules and regulations adopted by such Board.²

In urging his claims in this court the petitioner places principal reliance upon the case of People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (1974). In considering the identical contentions made by petitioner, where the destruction of the ampoules and their contents have been accomplished by the investigative authorities in good faith and in conformity with standard law enforcement procedure, the California Court ruled that the components including the test ampoule and its contents used in the breathalyzer test constituted material evidence on the issue of defendant-driver's guilt or innocence and the State had the duty to preserve and disclose such evidence. It, however, gave the rule prospective application only, and, interestingly enough, refused even to accord its benefits to the aggrieved defendant in that case.

The Oklahoma Court of Criminal Appeals rejected the reasoning of the California court and found that the petitioner had not been denied due process. Edwards v. State, 544 P.2d 60 (1975). Other state courts which have had the opportunity to consider the issue have specifically refused to follow Hitch. In State v. Grose, 45 Ohio Misc. 1, 340 N.E.2d 441 (Mun. Ct. of Findlay, O., 1975) the court held that the destruction of the test ampoule after the breathalyzer test had been properly administered and analyzed...