People v. Hitch, Cr. 16915

• Court: United States State Supreme Court (California)
• Writing for the Court: SULLIVAN; WRIGHT; MOSK
• Citation: 12 Cal.3d 641,117 Cal.Rptr. 9
• Parties: , 527 P.2d 361 The PEOPLE, Plaintiff and Appellant, v. Warner Herbert HITCH, Defendant and Respondent. In Bank
• Decision Date: 21 October 1974
• Docket Number: Cr. 16915

Page 9

117 Cal.Rptr. 9 12 Cal.3d 641, 527 P.2d 361 The PEOPLE, Plaintiff and Appellant,
v.
Warner Herbert HITCH, Defendant and Respondent. Cr. 16915. Supreme Court of California, In Bank. Oct. 21, 1974.

[12 Cal.3d 643]

Page 11

[527 P.2d 363] Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Frederick R. Millar, Jr., and Howard J. Schwab, Deputy Attys. Gen., C. Stanley Trom and Woodruff J. Deen, Dist. Attys., and Nancy Sieh, Deputy Dist. Atty., for plaintiff and appellant.

[12 Cal.3d 644] 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.

SULLIVAN, Justice.

Defendant Warner Herbert Hitch was arrested on September 10, 1970, for driving a motor vehicle while under the influence of intoxicating liquor. (Veh.Code, § 23102.) In fulfillment of his implied consent to a chemical test of his blood, breath or urine for the purpose of determining intoxication (Veh.Code, § 13353), he chose to submit to a test of his breath and the arresting officer administered a breathalyzer test to him at the jail.

The breathalyzer used in the test is an electrically powered apparatus designed to calculate the extent of alcohol in the suspect's circulatory system. The suspect blows into a tube and a sample of his breath is trapped inside the machine. The trapped sample is then permitted to bubble through a glass test ampoule containing three cubic centimeters of 0.025 percent potassium dichromate in a 50-percent-by-volume sulphuric acid solution which acts as a reagent to any alcohol suspended upon the suspect's breath. If alcohol is present in the sample, it produces a change in the color and the light transmissibility of the solution. Upon the passage of a light beam through the test ampoule, the relative light transmissibility of the solution is registered on a meter which calculates the percent of alcohol in the suspect's blood.

The machine is calibrated so as to provide a reading by establishing a correlation between the test ampoule and a reference ampoule which is identical in specification. It is essential to the accuracy of the test that a quantity of exactly three cubic centimeters of the solution be present in each. This is checked by a gauge in the machine and a test ampoule not meeting the requirement is discarded.

In administering the breathalyzer test to defendant, the officer followed the standard procedures outlined above. The test showed a blood alcohol level of 0.20 milligrams percent. At the conclusion of the test, the officer poured the contents of the test ampoule into a glass bottle and threw away the ampoule itself. He then delivered the bottle to the Ventura County [12 Cal.3d 645] crime laboratory which according to its established policy eventually disposed of the contents.

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[527 P.2d 364] Prior to trial, defendant moved to suppress the results of the breathalyzer test on the ground that the destruction of the test ampoule and its contents deprived him of due process of law. After a hearing at which it received expert testimony concerning the breathalyzer test, the court found the facts as to the operation of the apparatus and the method of conducting the test to be substantially as we have recounted them above and that "given the availability of the reference ampoule, another reference ampoule of the same ampoule lot, the test ampoule and contents, and of the bubbler tube" it was possible to actually retest the chemical change that had occurred in the contents of the test ampoule during the test. ¹ The court concluded that preservation of the test ampoule, its contents the bubbler tube and the reference ampoule would provide information of value to both the prosecution and the defense; that the intentional but nonmalicious destruction of these items deprived defendant of due process of law by making valuable evidence unavailable; that Vehicle Code section 13354 required preservation of such items, that the results of the breathalyzer test should be suppressed and that the action should be dismissed pursuant to Penal Code section 1385.

Accordingly, the court granted defendant's motion to suppress and dismissed the action. This appeal by the People followed. ²

We start with the settled rule that the intentional suppression of material evidence favorable to a defendant who has requested it constitutes a violation of due process, irrespective of the good or bad faith of the prosecution. (Giglio v. United States (1971) 405 U.S. 150, 153--154, 92 S.Ct. 763, 31 [12 Cal.3d 646] L.Ed.2d 104; Brady v. Maryland (1963) 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215; In re Ferguson (1971) 5 Cal.3d 525, 532, 96 Cal.Rptr. 594, 487 P.2d 1234 and cases there cited.)

In Brady, the defendant and a companion Boblit were found guilty of murder in the first degree in separate trials and sentenced to death. At his trial Brady took the stand and admitted his participation in the crime, but claimed that Boblit had done the actual killing. In his summation to the jury, Brady's counsel conceded that the defendant was guilty of first degree murder, asking only that the jury return a verdict "without capital punishment." Prior to trial Brady's counsel had requested the prosecution to permit him to examine Boblit's extrajudicial statements in their possession. In response to the request the prosecution had shown him several statements but withheld one in which Boblit admitted doing the actual killing. Brady discovered this after his trial. The high court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the

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[527 P.2d 365] good faith or bad faith of the prosecution." (Brady v. Maryland, supra, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196.)

In both Giglio and Ferguson the suppressed evidence, held to be material, had a bearing on the credibility of the key prosecuting witness. In the former the prosecution failed to disclose an alleged promise to the key witness that he would not be prosecuted if he testified for the Government; in the latter the prosecution failed to disclose the witness's arrest and sex commitment record.

In Ferguson, relying on Brady and decisions of this court declaring the same rule, ³ we held that the suppression by the district attorney in a prosecution for kidnaping and sexual offenses of evidence as to the victim's husband's arrest record and commitment to state hospitals as a sex degenerate deprived the defendant of a fair trial even though he had made no request for the production of the evidence. On the last point we explained: "Although a request for production of evidence may be a factor to consider in determining a charge of suppression of evidence, we have recognized that 'in some circumstances the prosecution must, without request, disclose substantial material evidence favorable to the accused.' (In re Lessard, supra, 62 Cal.2d 497, 509, 42 Cal.Rptr. 583, 591, 399 P.2d 39, 47.) Conditioning the duty to disclose and produce evidence upon request would mean that the duty to disclose would be inapplicable[12 Cal.3d 647] to numerous situations where the failure to disclose would deprive the accused of a fair trial." (In re Ferguson, supra, 5 Cal.3d at p. 532, 96 Cal.Rptr. at p. 599, 487 P.2d at p. 1239.)

In Brady, Giglio and Ferguson, the suppressed evidence was neither lost nor destroyed but remained continuously in existence. Upon review of the entire record on appeal or post conviction review, the court was in a position to examine the suppressed evidence, decide whether or not it was favorable to the accused and ultimately to determine whether or not it was material by "look(ing) to the entire record . . . in the light of the circumstances . . . consider(ing) not only the other evidence of guilt but also any other defense evidence . . .." (In re Ferguson, supra, 5 Cal.3d 525, 533, 96 Cal.Rptr. 594, 600, 487 P.2d 1234, 1240.) In these contexts, if the defense has failed to establish that the suppressed evidence is material, the court may reach the conclusion that its nondisclosure did not affect the fairness of the trial and therefore did not constitute a denial of due process. Conversely, if the defense has established that the suppressed evidence is material, the court may then conclude that there has been a denial of due process, that the conviction should be reversed and that the cause be remanded for a new trial at which defendant will be able to present his defense with full access to the material information.

Turning to the case at bench, we first observe that the results of the breathalyzer test by their very nature constitute material evidence on the issue of guilt or innocence upon a charge of drunk driving. We need only point to section 23126 of the Vehicle Code, which provides inter alia that if the amount of alcohol in a person's blood at the time of the test as shown by chemical analysis of his blood, breath or urine was 0.10 percent or more by weight, "it shall be presumed that the person was under the influence of intoxicating liquor at the time of the alleged offense." ⁴ Thus corresponding to the situations in Giglio and Ferguson, evidence substantially affecting the credibility of

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[527 P.2d 366] the results of the test would appear to be material and the suppression of such evidence would deny defendant a fair trial.

However, in the case before us the suppressed evidence, namely the test ampoule and its contents, and the reference ampoule, has been destroyed. Unlike the courts in the three cases just referred to, we do not have this critical evidence in the record before us so that we can determine whether it would have been favorable to...