People v. Humes

• Decision Date: 12 September 1988
• Docket Number: No. 87SC115,87SC115
• Citation: 762 P.2d 665
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Randy L. HUMES, Respondent.
• Court: Colorado Supreme Court

Page 665

762 P.2d 665

The PEOPLE of the State of Colorado, Petitioner, v. Randy L. HUMES, Respondent.

No. 87SC115.

Supreme Court of Colorado En Banc.

Sept. 12, 1988.

As Modified on Denial of Rehearing Oct. 11, 1988.

James F. Smith, Dist. Atty., Steven L. Bernard, Chief Trial Deputy, Brighton, for petitioner.

Michael D. Brown, Arvada, for respondent.

Colorado Criminal Defense Bar, James England, Boulder, for amicus curiae Colorado Criminal Defense Bar.

VOLLACK, Justice.

In this appeal, the People seek reversal of the Adams County District Court's order affirming the county court's suppression of evidence of blood alcohol test results obtained by the prosecution. Based on our holding in People v. Greathouse, 742 P.2d 334 (Colo.1987), we reverse and remand the case for further proceedings.

I.

In April 1986, Randy Lee Humes was arrested for Driving Under the Influence, in violation of section 42-4-1202, 17 C.R.S. (1984 & 1987 Supp.). At the time of his arrest, a sample of Humes' blood was obtained pursuant to the express consent provisions of Colorado's motor vehicle statute in order to determine his blood alcohol content. See § 42-4-1202(3), 7B C.R.S. (1984). The blood alcohol test result was 0.333, significantly over the legal limit. ¹ Humes was charged with Driving Under the Influence.

Prior to trial, Humes filed a Motion to Suppress Blood Test, Motion to Dismiss or Suppress All Evidence, and a Supplemental Motion to Dismiss. The latter motion was filed after defense counsel learned that no suitable sample of Humes' blood was available to him for independent testing. The county court granted the defendant's supplemental motion and ordered the blood test result obtained by the prosecution suppressed on the basis that the unavailability of a second sample of Humes' blood taken at the time of his arrest violated his due process rights under the Colorado Constitution. On interlocutory appeal to the district court the suppression order was affirmed. This appeal followed.

At the motions hearing before the county court judge, it was established that two samples of the defendant's blood were drawn upon his arrest. The prosecution sent its blood sample to a laboratory which determined Humes' blood alcohol content to be 0.333. When the defendant attempted to have a laboratory conduct an independent retest of the second sample, it was learned that neither the first nor the second sample could be used to conduct an accurate retest. ²

After hearing this evidence, the county court concluded that the issue before it was: "[H]ave courts construed the Colorado Due Process clause to provide more rights to an individual than the Due Process clause of the Fourteenth Amendment?" The court held that Garcia v. District Court, 197 Colo. 38, 589 P.2d 924 (1979), controlled, based on its interpretation of People v. Pope, 724 P.2d 1323 (Colo.1986). Applying the three-part test ³ in Garcia, the judge held that the Garcia requirements had been met. As a result, the judge held that Humes' due process rights had been violated under the Colorado Constitution. ⁴ The blood test results were ordered suppressed.

On appeal, the district court affirmed the county court's suppression order, agreeing that "the People's failure to provide a sample of blood for independent testing constituted a violation of Defendant's rights under the due process clause of the Colorado Constitution." The district court agreed with the county court "that Garcia expresses the current Colorado constitutional standard to be applied." The People filed this appeal from the district court's affirmance.

II.

The question presented is whether the sanction of dismissal of the criminal charge of driving while under the influence of an intoxicating liquor is automatically required under article II, section 25 of the Colorado Constitution when a second sample of a defendant's blood or breath test is not available for independent testing. Based on our holding in People v. Greathouse, 742 P.2d 334 (Colo.1987), we conclude that it does not.

The United States Supreme Court addressed the state's failure to preserve non-incidental evidence under the federal due process clause in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). In Trombetta, the Court held that the duty to preserve evidence was "limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 488-89, 104 S.Ct. at 2534.

In People v. Pope, 724 P.2d 1323 (Colo.1986), we addressed the effect of Trombetta on Colorado case law. We held that "Trombetta implicitly overrules that portion of Garcia that addressed federal due process concerns," but declined to decide "the continued vitality of the Garcia rule as a Colorado constitutional standard because, in light of our disposition of this case, the issue is not ripe for review." 724 P.2d at 1325-26 (footnote omitted). This was the state of the law in November 1986 when the county court entered the suppression order in this case, and in February 1987 when the district court affirmed the county court's order.

In September 1987, we expressly adopted the Trombetta standard under Colorado's due process clause in People v. Greathouse, 742 P.2d 334 (Colo.1987). In order to require suppression of evidence under Colorado's due process clause, the unavailable evidence must be "constitutional[l]y material." To be " 'constitutionally material evidence' ... under Colorado's due process clause," the evidence must meet two requirements. Id. at 338. First, "the evidence [must] possess an exculpatory value apparent before the evidence was lost or destroyed." The second requirement is "whether the defendant was unable to obtain comparable evidence by other reasonably available means." Id. at 338-39. Our holding in Greathouse therefore applies, and we recognize that the courts below did not have the benefit of our decision in Greathouse when those rulings were entered.

III.

To prove that a due process violation has occurred, it must be shown that (1) evidence was suppressed or destroyed by the prosecution; (2) the evidence possessed an exculpatory value apparent before it was destroyed; and (3) the defendant cannot obtain comparable evidence by other reasonably available means. Greathouse, 742 P.2d at 337.

The first issue, then, is whether evidence in this case was suppressed or destroyed by the prosecution. The parties do not dispute that a second sample of the defendant's blood was not properly preserved by the prosecution. When evidence can be routinely collected and preserved by state agents, "failure to do so is tantamount to suppression of the evidence." Id. There are routine procedures for collecting and preserving blood samples, yet these samples were not adequately preserved by the state or state agents to enable the defendant to conduct an independent chemical test. We conclude that the first prong of the three-part test is satisfied. People v. Sheppard, 701 P.2d 49, 52 (Colo.1985); People ex rel. Gallagher v. District Court, 656 P.2d 1287, 1291-92 (Colo.1983).

Another requirement is that the defendant prove that the unavailable evidence was material. To require suppression of evidence under Colorado's due process clause, the evidence must be constitutionally material. For evidence to be constitutionally material, it must meet two requirements. Greathouse, 742 P.2d at 338. First, "the evidence [must] possess an exculpatory value apparent before the evidence was lost or destroyed." Id. Second, it must be shown that the defendant "was unable to obtain comparable evidence by other reasonably available means." Id. at 338-39 (quoting Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534). In assessing the constitutional materiality of the unavailable evidence, therefore, we must first determine whether the second blood sample possessed an exculpatory value that was apparent before the sample was lost or destroyed.

Other jurisdictions have addressed this issue in the context of breath or blood alcohol test results. The United States Supreme Court stated in Trombetta:

[A] dispassionate review of the Intoxilyzer and the California testing procedures can only lead one to conclude that the chances are extremely low that preserved samples would have been exculpatory.... In 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.

Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534 (footnotes omitted) (emphasis added) (applied to drug testing in Wheeler v. State, 691 P.2d 599, 603 (Wyo.1984)).

The Idaho Supreme Court has held: "There is nothing in this record which would establish that additional tests on the samples of blood would show anything other than that the blood alcohol of each of the appellants was well in excess of .10, the legal limit...." State v. Albright, 110 Idaho 748, 750-51, 718 P.2d 1186, 1188-89 (1986) (destruction of blood samples in a DUI case did not constitute a due process violation under the federal Constitution).

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