Lauderdale v. State, No. 2761
| Court | Supreme Court of Alaska (US) |
| Writing for the Court | Before BOOCHEVER, C. J., and CONNOR, ERWIN and BURKE, JJ., and DIMOND; DIMOND; RABINOWITZ |
| Citation | 548 P.2d 376 |
| Parties | Lloyd LAUDERDALE, Petitioner, v. STATE of Alaska, Respondent. Donald James WARE, Petitioner, v. CITY OF ANCHORAGE, State of Alaska, et al., Respondent. Doris F. SEAY, Petitioner, v. STATE of Alaska, Respondent. Rocko B. FORDHAM, Petitioner, v. STATE of Alaska, Respondent. |
| Decision Date | 30 March 1976 |
| Docket Number | No. 2761 |
Page 376
v.
STATE of Alaska, Respondent.
Donald James WARE, Petitioner,
v.
CITY OF ANCHORAGE, State of Alaska, et al., Respondent.
Doris F. SEAY, Petitioner,
v.
STATE of Alaska, Respondent.
Rocko B. FORDHAM, Petitioner,
v.
STATE of Alaska, Respondent.
Page 378
Suzanne C. Pestinger, Robert John Brady and Hugh G. Wade, Anchorage, for petitioners.
Ivan Lawner, Asst. Dist. Atty., Anchorage, Joseph D. Balfe, Richard Garnett, III. Anchorage, and Avrum M. Gross, Juneau, for respondents.
Suzanne C. Pestinger, Birch, Jermain Horton & Bittner. Anchorage, for petitioner Lauderdale.
Robert John Brady and Hugh G. Wade. Anchorage, for petitioners Ware, Seay and Fordham.
Ivan Lawner, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for respondent State of Alaska.
Richard Garnett, III, City Atty., for respondent City of Anchorage.
Before BOOCHEVER, C. J., and CONNOR, ERWIN and BURKE, JJ., and DIMOND, J. Pro Tem.
DIMOND, Justice Pro Tem.
Lloyd Lauderdale has been charged with the offense of operating a motor vehicle while intoxicated. He submitted to a breathalyzer test in accordance with AS 28.35.031. 1 After entering a not guilty plea, Lauderdale filed a motion for discovery and inspection of the ampoule used in the breathalyzer test. The ampoule was not produced by the state. The district court ordered the results of the breathalyzer test suppressed, and upon review by the superior court, the order of the district court was reversed and the case remanded for trial.
Lauderdale seeks review of the suppression matter by this court. We have granted review because the case raises a controlling question of law as to which there is substantial ground for difference of opinion, 2 and a review at this time may materially advance the ultimate termination, not only of this litigation, but also of other pending litigation involving the same question. We believe the matter is of sufficient importance to justify deviation from the normal appellate procedure of permitting review only after entry of a final judgment. 3
The breathalyzer test is described as follows:
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
Page 379
that it traps only the last 52 1/2 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. 4Charles King, a medical technologist, testified at the suppression hearing. Since 1970, his job had been to test and certify the breathalyzer ampoules used in Alaska by law enforcement authorities. He was qualified as an expert witness in that field.
The district court found from such testimony that there was plausible evidence that could be derived from later testing of the test ampoule which could bear upon the propriety of the examination of the ampoule in the breathalyzer machine and which, in turn, would bear upon the guilt or innocence of the defendant. The superior court found the opposite-that the expert testimony did not meet the test of establishing that preservation and subsequent analysis of the ampoules would provide scientifically reliable data that would materially assist the petitioner's case.
We disagree with the superior court and hold that the district court was correct in its finding. The test and reference ampoules could be probative evidence of the propriety or impropriety of the breathalyzer test for several reasons. From the witness's testimony, it appeared that it was critical to the results of the test that precisely three milliliters of solution be contained in the ampoules; if the volume was less than three milliliters, the final result would be a falsely elevated level of alcohol. This would be true as to both the test and reference ampoules. After the test is given, the quantity of the solution in the reference ampoule can be accurately measured, and the test itself does not materially change the quantity of solution in the test ampoule, which can also be measured.
Each ampoule must contain .025 percent of potassium dichromate, which is critical to the test within a range of approximately a 33 1/3 percent variance. The amount of potassium dichromate in the reference ampoule can be measured after the test has been given. This is not necessarily true as to the test ampoule. If the person taking the test had been drinking, there would be a chemical change in contents of the ampoule and the percentage of potassium dichromate originally present would be different. However, the witness did say that even in the test ampoule, it would be 'probably possible' to measure the potassium dichromate, but that he did not know how to do it at the present time.
The character of the glass of the ampoule is also important. Any imperfections in the glass would cause diffusion of the light going through it, and this would tend to make the reading on the galvanometer incorrect. The same would be true if the glass ampoule were not the correct thickness, and this could be measured after the test had been given.
Apparently, at the present time, it is not possible to rerun a test and obtain accurate
Page 380
results. There is the possibility, however, that further studies and improved techniques may be developed in the future which would provide some reliable data on a rerun of a test ampoule. But even now, the test of a used ampoule could be made again, and if the results were less than those originally obtained, the original results would be suspect. The reason for this is that the passage of time, with the chemical changes in the solution in the ampoule, would normally cause the test results to show an increase in blood alcohol.In addition to the expert testimony of Charles King, there is another factor which has a bearing on the case. The regulations of the Department of Health and Social Services require that
(a) 10 ampoules, selected at random from each ampoule lot, shall be chemically analyzed by an approved laboratory to verify the proper chemical composition and volume stated by the ampoule manufacturer. 5
There is no indication in the regulations as to how many ampoules compose a 'lot'. In this case, the lot consisted of 10,000 ampoules, and according to requirements of the regulation, 10 of them were selected at random for testing. In other instances, a lot consists of only 100 ampoules, and again 10 are selected for analysis.
What this means is that in this case only one-tenth of one percent of the ampoules were tested, whereas in other cases, one percent will be analyzed. Thus, in a large lot of ampoules, such as we have here, the probabilities of not detecting defective ampoules are greater than in a smaller lot. The existence of this situation is an additional argument in favor of Lauderdale's contention that he should be permitted to check the specific ampoules used in his test.
Based upon the expert testimony of Charles King, the district court determined that plausible evidence from testing the ampoules could be obtained which might have had some bearing on the guilt or innocence of Lauderdale, and that the state should produce them. When the prosecuting attorney stated that this was impossible, the district court ordered the breathalyzer test suppressed from evidence at the trial.
Criminal rule 16(b)(7) provides that:
Upon a reasonable request showing materiality to the preparation of the defense, the court in its discretion may require disclosure to defense counsel of relevant material and information . . ..
We have discussed in some detail the expert testimony of Charles King....
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State v. Walstad, No. 82-1864-CR
...Moreover, the Booth court, in finding the materiality obvious and of constitutional proportions, and relying on Lauderdale v. State, 548 P.2d 376 (Alaska 1976), equated the production of a breath ampoule with the right of cross-examination and the inability to inspect an ampoule as being ta......
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Moore v. State, Nos. 2551
...113 Cal.Rptr. 158, 527 P.2d 361, 372 (1974) (dissenting opinion of Justice Mosk). And see also our recent opinion in Lauderdale v. State, 548 P.2d 376, 383 (Alaska...
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Saldana v. State, No. 90-24
...the defendant was entitled to call a relative or a lawyer before determining whether to take a breathalyzer test. In Lauderdale v. State, 548 P.2d 376 (Alaska 1976), the Alaska Supreme Court addressed the reversal of a conviction where the arresting agency failed to retain the components of......
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Gundersen v. Municipality of Anchorage, No. A-2112
...State, 732 P.2d 1078, 1080 (Alaska 1987); Champion v. Department of Public Safety, 721 P.2d 131, 132 (Alaska 1986); Lauderdale v. State, 548 P.2d 376, 381 (Alaska 1976); Anchorage v. Serrano, 649 P.2d 256, 258-59 (Alaska This obligation exists independently of the statutes and ordinances pr......
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State v. Walstad, No. 82-1864-CR
...Moreover, the Booth court, in finding the materiality obvious and of constitutional proportions, and relying on Lauderdale v. State, 548 P.2d 376 (Alaska 1976), equated the production of a breath ampoule with the right of cross-examination and the inability to inspect an ampoule as being ta......
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Moore v. State, Nos. 2551
...113 Cal.Rptr. 158, 527 P.2d 361, 372 (1974) (dissenting opinion of Justice Mosk). And see also our recent opinion in Lauderdale v. State, 548 P.2d 376, 383 (Alaska...
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Saldana v. State, No. 90-24
...the defendant was entitled to call a relative or a lawyer before determining whether to take a breathalyzer test. In Lauderdale v. State, 548 P.2d 376 (Alaska 1976), the Alaska Supreme Court addressed the reversal of a conviction where the arresting agency failed to retain the components of......
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Gundersen v. Municipality of Anchorage, No. A-2112
...State, 732 P.2d 1078, 1080 (Alaska 1987); Champion v. Department of Public Safety, 721 P.2d 131, 132 (Alaska 1986); Lauderdale v. State, 548 P.2d 376, 381 (Alaska 1976); Anchorage v. Serrano, 649 P.2d 256, 258-59 (Alaska This obligation exists independently of the statutes and ordinances pr......