People v. Hitch

• Decision Date: 10 April 1974
• Docket Number: Cr. 16915
• Citation: 113 Cal.Rptr. 158,11 Cal.3d 159,520 P.2d 974
• Court: California Supreme Court
• Parties: , 520 P.2d 974 The PEOPLE, Plaintiff and Appellant, v. Warner Herbert HITCH, Defendant and Respondent.

Page 158

113 Cal.Rptr. 158

11 Cal.3d 159, 520 P.2d 974

The PEOPLE, Plaintiff and Appellant, v. Warner Herbert HITCH, Defendant and Respondent.

Cr. 16915.

Supreme Court of California, In Bank.

April 10, 1974.

Rehearing Denied May 16, 1974.

For Opinion on Hearing see, 117 Cal.Rptr. 9, 527 P.2d 361.

Roger W. Borrell, Oxnard, for defendant and respondent.

Richard S. Buckley, Public Defender, Los Angeles, Harold E. Shabo, Deputy Public Defender, Renzi & Kilbride and Fred Kilbride, Los Angeles, as amici curiae on behalf of defendant and respondent.

Evelle J. Younger, Atty. Gen., Howard J. Schwab, Deputy Atty. Gen., Woodruff J. Deem, Dist. Atty., and Nancy Sieh, Deputy Dist. Atty., for plaintiff and appellant.

McCOMB, Justice.

The People appeal from an order of the Ventura County Municipal Court suppressing evidence and dismissing a complaint (Pen.Code, § 1385) for misdemeanor drunk driving (Veh.Code, § 23102, subd. (a)).

Facts: On September 10, 1970, defendant was arrested on suspicion of drunk driving and given a breathalyzer test. Such a test involves the use of equipment designed to determine the alcoholic content of a breath sample introduced by the suspect's blowing into a tube. The sample, trapped in the machine, is allowed to bubble through a test ampoule. The ampoule is a glass phial containing three cubic centimeters of a .025 percent potassium dichromate in a 50 percent by volume sulphuric acid solution. If there is any alcohol in the breath sample, there will be a change in color and in the light transmissibility of the solution correlative to the amount of alcohol present. The change in light transmissibility is registered on a meter, which calibrates the degree of alcohol in the circulatory system of the suspect.

The testing officer determines the amount of fluid in the test ampoule by reference to a 'go no go' gauge. The ampoule is not used if amount is inadequate. The testing officer calibrates the machine by use of a reference ampoule, one which is identical in specification with the test ampoule, but which remains intact, while the top of the test ampoule is broken to allow the breath sample to bubble through. Once calibrated, the breathalyzer is set by the officer so that when a reading is taken, a mark appears on graph paper.

The normal procedure was used in the test administered to defendant. The result showed a blood alcohol level of .20 milligrams percent blood alcohol. At the conclusion of the test, county officials discarded the test ampoule and its contents, pursuant to standard practice. Prior to trial, defendant moved to suppress the results of the test on the ground that the destruction of the test ampoule and its contents deprived him of due process. The trial court ruled that if defendant could show that preservation of the ampoule and its contents would have been of value to the defense, the intentional, although nonmalicious, destruction did deny him due process.

After extensive hearings, the trial court made detailed findings of fact, finding that although the original test can never be duplicated, it can be approximated and that a greatly varying second test could impeach the first. The court found that the quantity of solution in the test and reference ampoules, the total quantity of chromium metal present in the test ampoule during the test, and any optical defects in the ampoules are all critical to the test result and can be accurately determined on a retest. The court further found that, given the availability of the reference ampoule, another reference ampoule of the same ampoule lot, the test ampoule and its contents, and the bubbler tube, it is possible to retest the chemical change that occurred in the contents of the test ampoule during the test and obtained a rough check on the accuracy of the original test. It also found, however, that depending on the lapse of time and the manner in which the test amopule and the solution have been stored, gross changes can occur in the solution; that following the administration of a breathalyzer test, continued chemical changes in the contents of the test ampoule are inevitable due to the nature of the substances therein; and that all such changes upon retesting will show up as a higher blood alcohol level than was actually measured at the time of the test, the rate and the amount being unpredictable.

The trial court concluded, among other things, that preservation of the test ampoule, the contents thereof, the reference ampoule, and the bubbler tube would have provided information of value to both the prosecution and the defense and that the intentional, but nonmalicious, destruction of these items deprived defendant of due process of law by making valuable evidence unavailable. The court then granted defendant's motion to suppress the results of the breathalyzer test and ordered that the action be dismissed.

Questions: First. Did the trial court properly grant defendant's notion to suppress the results of the breathalyzer test?

Yes. Under section 13354, subdivision (c), of the Vehicle Code, upon the request of a person who has been arrested for drunk driving and given a blood, breath, or urine test at the direction of a peace officer, full information concerning the test must be made available to the person tested or his attorney. If a breath test is given, and it is established that preservation of the test ampoule and the contents thereof would have provided evidence of value to a defendant charged with drunk driving, in that they could possibly result in his exoneration, the destruction thereof, even though done nonmaliciously, deprives him of due process. (See People v. Noonan, 20 Cal.App.3d 862, 865-866(1, 2), 98 Cal.Rptr. 125; Van Halen v. Municipal Court, 3 Cal.App.3d 233, 236-237(1), 83 Cal.Rptr. 140.)

There is a certain analogy between cases such as the present one, involving the destruction of exhibits, and the so-called 'loss of informant' cases. With respect to the latter, this court in Eleazer v. Superior Court, 1 Cal.3d 847, 83 Cal.Rptr. 586, 464 P.2d 42, and People v. Goliday, 8 Cal.3d 771,...