Oshrin v. Coulter, 17535-SA

• Decision Date: 02 October 1984
• Docket Number: No. 17535-SA,17535-SA
• Citation: 688 P.2d 1001,142 Ariz. 109
• Parties: Eric Kurt OSHRIN, Petitioner, v. The Honorable Rufus C. COULTER, Jr., Judge of the Maricopa County Superior Court, Respondent, and The STATE of Arizona, Respondent and Real Party in Interest.
• Court: Arizona Supreme Court

Page 1001

688 P.2d 1001

142 Ariz. 109

Eric Kurt OSHRIN, Petitioner, v. The Honorable Rufus C. COULTER, Jr., Judge of the Maricopa County Superior Court, Respondent and The STATE of Arizona, Respondent and Real Party in Interest.

No. 17535-SA.

Supreme Court of Arizona In Banc.

Oct. 2, 1984.

Ronald B. Fineberg, Barry L. Brody, Phoenix, for petitioner.

Thomas E. Collins, Maricopa County Atty., by Joel M. Glynn and Patricia Scott, Deputy County Attys., Phoenix, for respondent/real party in interest.

CAMERON, Justice.

The petitioner, Eric Kurt Oshrin, was charged with violating A.R.S. § 28-692(A), driving a motor vehicle while under the influence of intoxicating liquor (DWI), and A.R.S. § 28-692(B), driving a vehicle while there was 0.10 per cent or more by weight of alcohol in his blood. The charges were felony charges pursuant to A.R.S. § 28-692.02 because the petitioner was driving with a suspended license. The petitioner moved to dismiss based upon the alleged inadmissibility of evidence of a breath test taken pursuant to A.R.S. § 28-692.03, but the respondent judge denied the motion. The petitioner brought this special action from that denial. We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3) and Rule 8, Arizona Rules for Special Actions, 17A A.R.S.

The issue we must resolve is:

Did the trial court abuse its discretion in refusing to suppress evidence of a breath test for alcohol content because the sample the petitioner requested for himself was destroyed after the petitioner was told the charges against him had been scratched or dismissed but before the formal charges against the petitioner were filed?

The facts necessary for a determination of this matter are as follow. The petitioner was arrested on 28 March 1983 and taken to the Maricopa County Jail. At the jail he voluntarily submitted to a gas chromatograph intoximeter (GCI) breath sample test to determine his blood alcohol content. He requested that a second sample be preserved for his own future use pursuant to Baca v. Smith, 124 Ariz. 353, 356, 604 P.2d 617, 620 (1979). Such sample was taken by the officers. The petitioner was told his bail would be $260, which amount he had in his possession at the time of his arrest. He was released from custody after approximately eight hours. All money was returned to him and he was told that the charges against him were dismissed or "scratched." Petitioner made no effort to have his sample examined and the sample taken was destroyed on 4 May.

On 25 July 1983, some four months after arrest and release and over two months after the sample was destroyed, felony DWI charges were filed against the petitioner. He was not arrested, however, until 24 December 1983. Trial was set for 6 March 1984 but on 27 February 1984 he moved to suppress the evidence and dismiss the charges because his Baca sample had been destroyed and he had therefore lost his opportunity to gather exculpatory evidence from that sample. The petitioner claimed he reasonably believed the charges were dropped and did not know the state could and would refile the charges, and so he saw no reason to collect the Baca sample before it was destroyed. The state concedes the charges were dropped, but insists dropping the charges is the usual procedure because of the time required in obtaining a formal felony DWI complaint. The respondent judge denied the motion. The petitioner then brought this petition for special action, which we granted because there is no plain, adequate, and speedy remedy at law and because petitioner raises a question of statewide importance. In Baca, supra, the petitioner was arrested for DWI and took a GCI breath test, the same as here. A sample for his own use was not taken. We held that:

the right to test incriminating evidence where the evidence is completely destroyed by testing becomes all the more important because the defense has little or no recourse to alternate scientific means of contesting the test results, and, therefore, when requested, the police must take and preserve a separate sample for the suspect by means of a field collection unit.

Id. at 356, 604 P.2d at 620. The testimony in Baca indicated that a GCI sample would begin to deteriorate after about five days. We held under the facts in that case that the police must retain the requested sample for seven days, after which the sample could be destroyed if the defendant had not claimed it, and that the defendant should be notified of that fact. ¹

In the instant case, the officers told the defendant that the charges were dropped and the petitioner was free to go, but failed to inform him that charges could and most likely would be filed later. The petitioner was thus led to believe that no further action would be taken against him and he did not attempt to obtain the sample for analysis or have other tests taken upon his release. A person in custody, upon being released under these circumstances, can reasonably be expected to rely upon the statement that the charges are dropped or scratched and assume that no further action will be taken by the state. It is not then unreasonable to fail to take the sample for testing. By the time formal charges are filed, the sample is destroyed and it is impossible to test the reliability of the first sample with the second sample. We find this a violation of fundamental fairness raising a question of denial of due process contrary to the Fourteenth Amendment to the United States Constitution. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Scales v. City Court of Mesa, 122 Ariz. 231, 594 P.2d 97 (1979). As Judge Henry Stevens of the Arizona Court of Appeals has noted:

There is probably no more nebulous and indefinable concept in the law than "due process of law". Generally speaking, the denial of due process is a denial of "fundamental fairness, shocking to the universal sense of justice". Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960).

Crouch v. Justice of Peace Court of Sixth Precinct, 7 Ariz.App. 460, 465-66, 440 P.2d 1000, 1005-06 (1968). To tell a defendant that his case is dismissed, return the amount of his bond, release him from custody, then destroy evidence of guilt or innocence before filing a formal complaint is a denial of fundamental fairness shocking to a sense of justice and a denial of due process. Brady, supra; Scales, supra; Baca, supra. The trial court erred in failing to suppress the results of the breathalizer test.

The state, however, points to our statement in Scales which reads:

[W]here material evidence has been lost or destroyed we will reverse a conviction if (1) bad faith or connivance on the part of the state can be shown, or (2) the defendant is prejudiced by the loss or destruction of such evidence.

Scales, supra, 122 Ariz. at 234, 594 P.2d at 100 (citations omitted). The state contends that since the petitioner's blood alcohol level was tested at 0.26 per cent, the chance of the destroyed evidence being exculpatory is minimal. The state suggests that an instruction in accordance with State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964), would cure any harm the petitioner may suffer because the second sample was destroyed. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). We disagree.

The fact that the defendant is "probably guilty" does not excuse lack of due process where there is conduct rising to the level of bad faith or connivance on the part of the state. Although we might, under the circumstances, find that the petitioner has not been prejudiced by the loss or destruction of the sample, we cannot say the conduct of the police in misleading the petitioner did not reach the level of bad faith or connivance.

The state points out further, however, that the recent United States Supreme Court case of California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) held that the due process clause of the Fourteenth Amendment does not require that officers preserve breath samples in order to use the test results at trial. In that decision, the United States Supreme Court held that because of the procedures followed to ensure the accuracy of the test results:

[i]n all but a tiny fraction of cases, preserved breath samples would simply confirm the Intoxilyzer's determination that the defendant had a high level of blood-alcohol concentration at the time of the test. Once the Intoxilyzer indicated that respondents were legally drunk, breath samples were much more likely to provide inculpatory than exculpatory evidence.

Id. at ----, 104 S.Ct. at 2534, 81 L.Ed.2d at 422.

We believe there are three important differences in Trombetta that distinguish it from the facts in the instant case. First, the court in Trombetta was considering a different type of test, an intoxilyzer. As the court stated in its opinion:

The...