Garcia v. District Court, 21st Judicial Dist., s. C-1504

Decision Date22 January 1979
Docket NumberC-1551,Nos. C-1504,s. C-1504
Citation589 P.2d 924,197 Colo. 38
PartiesAndrew Joe GARCIA, Petitioner, v. The DISTRICT COURT, 21ST JUDICIAL DISTRICT, Honorable William M. Ela, and County Court, 21st Judicial District, Honorable Harold P. Moss, Respondents. Kenneth Ray FELAND, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

Dufford, Waldeck & Williams, Laird T. Milburn, Grand Junction, for petitioner in No. C-1551.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Susan P. Mele-Sernovitz, Asst. Atty. Gen., Denver, for respondents in No. C-1551.

Anderson & Carey, P. C., Robert L. Malman, Littleton, for petitioner in No. 1504.

Nolan L. Brown, Dist. Atty., Frederick B. Skillern, Deputy Dist. Atty., Golden, for respondent in No. C-1504.

ERICKSON, Justice.

The defendant Andrew Joe Garcia and the defendant Kenneth Ray Feland have both asserted that the present procedures used in conducting breath tests to determine blood alcohol percentage in a drunk driving prosecution deprives them of the opportunity to test the accuracy and validity of the procedure. Determination that a person had a blood alcohol content of .10 percent creates a presumption that he was operating a vehicle while under the influence of intoxicating liquors. Section 42-4-1202, C.R.S.1973 (1976 Supp.).

We granted certiorari to review the Mesa County District Court decision in the Garcia case. We also granted certiorari to review the Jefferson County District Court decision in the case wherein Kenneth Ray Feland was charged with driving while intoxicated.

The issues in both cases are similar, and for that reason we have consolidated the cases for the purpose of this opinion. Our determination to review these two cases is based upon issues that were unanswered in People v. Hedrick, 192 Colo. 37, 557 P.2d 378 (1976). We reverse the convictions of both Garcia and Feland and return the cases to the respective district courts with directions to remand to the respective county courts for new trials. Evidence apart from the blood alcohol tests may in and of itself be sufficient to establish guilt.

The procedures which must be followed and which will be discussed in this opinion have prospective effect and are not to be considered retroactively, except as to the parties to these proceedings and as to those cases wherein motions for production of breath samples or breathalyzer ampoules have already been made. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

Both defendants were tried in the county court and found guilty of driving under the influence of intoxicating liquors. Section 42-4-1202, C.R.S.1973 (1976 Supp.). Both defendants appealed to the district court where their convictions were affirmed. Both defendants sought to suppress evidence of the blood alcohol tests which were conducted with breath analysis equipment shortly after their arrest.

Samples of blood and urine which are taken in blood alcohol tests are customarily preserved for the use of the defense and to insure that the test is accurate. See note 1, infra. Preservation of the blood, urine, or breath which formed the basis for the conclusion that a person was operating a vehicle while under the influence of intoxicating liquors is essential in view of the presumption that arises from the test. Section 42-4-1202 provides, in pertinent part:

"Driving under the influence driving while impaired implied consent to chemical tests penalties. (1)(a) It is a misdemeanor for any person who is under the influence of intoxicating liquor to drive any vehicle in this state. . . .

"(2) In any prosecution for a violation of subsection (1)(a) or (1)(b) of this section, the amount of alcohol in the defendant's blood at the time of the commission of the alleged offense or within a reasonable time thereafter, as shown by chemical analysis of the defendant's blood, urine, or breath, shall give rise to the following presumptions:

"(c) If there was at such time 0.10 percent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of alcohol."

Different equipment was used in each of the cases before us, but the record before us in the combined cases establishes that breathalyzer procedures exist which permit the preservation of a breathalyzer sample for use by the defense.

In People v. Hedrick, supra, there was no evidence to show that the products of the breath test could have been preserved for later use and for separate testing by the defense. In both the Garcia and Feland cases, there was ample evidence to reflect that the state of the art is such that samples of a defendant's breath, taken at the time a blood alcohol breath test is given, can be preserved at a cost far less than that which is required to preserve urine or blood samples. Because of the procedures which are available to insure fundamental fairness in the prosecution of drunk driving cases, we hold that procedures must be utilized which will cause a sample of the defendant's breath, taken at the time that a breath test is administered, be preserved and available to the defendant for separate testing as to blood alcohol content.

The Facts
People v. Garcia

An officer of the Grand Junction police department observed Andrew Joe Garcia operating a motor vehicle at an excessive speed. Garcia was stopped and given a roadside sobriety test. He was thereafter arrested for driving under the influence of alcohol and was advised of his rights under Colorado's Implied Consent Law, section 42-4-1202(3), C.R.S.1973 (1976 Supp.). He elected to take the breath test. The breathalyzer reflected a blood alcohol content of .18%, and as a result, Garcia was charged with driving under the influence of alcohol.

The breathalyzer machine which was used in the Garcia case was manufactured by the Smith and Wesson Company. The manner in which the machine was used and the method for determining blood alcohol content of breath is described in this manner:

"The breathalyzer is a machine designed to measure the amount of alcohol in the alveolar breath and is based upon the principle that the ratio between the amount of alcohol in the blood and the amount in the alveolar breath from the lungs is a constant 2100 to 1. In other words, the machine analyzes a sample of breath to determine the alcoholic content of the blood. . . .

"To operate the machine, the subject blows into the machine through a mouthpiece until he has emptied his lungs in one breath. The machine is so designed that it traps only the last 521/2 cubic centimeters of air that has been blown into it. This air is then forced, by weight of a piston, through a test ampoule containing a solution of sulphuric acid and potassium dichromate. This test solution has a yellow hue to it. As the breath sample bubbles through the test solution, the sulphuric acid extracts the alcohol, if any, therefrom, and the potassium dichromate then changes the alcohol to acetic acid, thereby causing the solution to lose some of its original yellow color. The greater the alcoholic content of the breath sample, the greater will be the loss in color of the test solution. By causing a light to pass through the test ampoule and through a standard (reference) ampoule containing the same chemical solution as the test ampoule (but through which no breath sample has passed), the amount of the change in color can be measured by photoelectric cells which are connected to a galvanometer. By balancing the galvanometer, a reading can be obtained from a gauge which has been calibrated in terms of percentage of alcohol in the blood." State v. Baker, 56 Wash.2d 846, 355 P.2d 806, 809 (1960).

When arraigned, Garcia requested that the test and reference ampoules used in his breathalyzer test be produced. He was informed that in accordance with the standard police department procedure, both ampoules had been destroyed. Garcia then moved to suppress the results of the breathalyzer test as evidence. His motion was predicated on the contention that had the test and reference ampoules, or a separate sample of his breath, been preserved, he would have been able to submit those items for an independent test of his blood alcohol level. He contended that the test could have been conducted by experts of his own choosing and would have been available to impeach or verify the result indicated by the breathalyzer.

A stipulation appears in the record to establish that the breathalyzer machine which was used to test Garcia's breath was certified by the Colorado State Board of Health, was in proper working order, and was operated by a qualified person. Expert testimony was produced in the trial court to establish the manner in which the breathalyzer machine was operated and the feasibility of maintaining the test and reference ampoules and a separate breath sample. There was conflicting testimony, but it was conceded that a sample of Garcia's breath could have been preserved at a minor expense by a number of methods. Experts called by the defense testified that the preservation of the test and reference ampoules would have enabled them to determine whether the proper amount of solution was in each vial and whether the proper amount of potassium dichromate was present in the solution, as well as whether the glass ampoules were of the correct diameter and free of imperfections. The defense expert testified that the standard solution (potassium dichromate), the glass ampoule's diameter, and the other factors which were outlined could have affected the accuracy of the test. It was also the opinion of the defense experts that the preservation of a breath sample would have enabled an independent laboratory test.

The trial court concluded that the test and reference ampoules could not easily be preserved and that, thus, the state was under no...

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