People v. Miller

• Decision Date: 31 October 1975
• Docket Number: Cr. 14317,14318,14565
• Citation: 52 Cal.App.3d 666,125 Cal.Rptr. 341
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Norman Eugene MILLER, Defendant and Respondent. PEOPLE of the State of California, Plaintiff and Appellant, v. Virgil HOY, Defendant and Respondent. PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth George MUNROE, Defendant and Appellant.

Page 341

125 Cal.Rptr. 341

52 Cal.App.3d 666

PEOPLE of the State of California, Plaintiff and Appellant, v. Norman Eugene MILLER, Defendant and Respondent.

PEOPLE of the State of California, Plaintiff and Appellant, v. Virgil HOY, Defendant and Respondent.

PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth George MUNROE, Defendant and Appellant.

Cr. 14317, 14318, 14565.

Court of Appeal, First District, Division 3, California.

Oct. 31, 1975.

Hearing Denied Dec. 30, 1975.

Evelle J. Younger, Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Charles R. B. Kirk, Deputy Atty. Gen., San Francisco, for the People.

Lawrence O. Eitzen, Eureka, for Miller.

Mathews, Traverse & McKittrick, Eureka, for Hoy and Munroe.

DRAPER, Presiding Justice.

These three cases all arise from misdemeanor prosecutions for driving while under the influence of intoxicating liquor (Veh.Code, § 23102). All raise the question whether the recent decision of the Supreme Court (People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361) should be extended to render inadmissible the results of all chemical tests of breath conducted by use of the 'Omicron Intoxilyzer.' The appellate department of a superior court certified each case to us. In light of the purchase and use of the intoxilyzer in many counties, and the diversified views among lower courts, we ordered transfer here. (Cal.Rules of Court, rule 62.)

Munroe was convicted of driving under the influence of intoxicating liquor after jury trial in the justice court of Del Norte Judicial District. The prosecution evidence included results of an intoxilyzer test of his breath which showed an alcohol blood content of .16 percent. He appealed. The appellate department held that Hitch required not only retention of preservable evidence, but also the reduction of test material to preservable form. It ruled that due process was denied by admission in evidence of the results of the intoxilyzer test, because that instrument does not provide any sample which can be retained for retesting.

The same session of the Legislature which established presumptions based upon the alcohol content of blood as shown by tests of blood, breath, or urine (Veh.Code, § 23126) directed the State Board of Public Health (now State Department of Health) to establish regulations for testing of breath samples to determine the concentration of alcohol in the blood of a subject. (Health & Saf.Code, § 436.52.) Detailed regulations have been issued and are published. (Cal.Admin.Code, tit. 17, art. 6, §§ 1220--1225.) At least two devices, the intoxilyzer and the breathalyzer, have been approved by the Department of Health. Hitch considered only the breathalyzer. That device produces test material which can be retested if preserved. The intoxilyzer, however, produces no such material. The subject's breath is captured in a metal chamber, infrared energy of fixed intensity and wave length is passed through the chamber from one side to a photo-electric cell on the other side. Alcohol absorbs light of the fixed wave length. The device computes the loss of energy, translates the result in terms of the grams of alcohol per 100 milliliters of blood, and prints the result upon a card. In the prescribed operation of the device, clear air is first tested, then the breath of the subject. The chamber is then purged by blowing clear air through it, the clear air is tested, and all three results appear upon the printout card. The two tests of clear air constitute a test of the machine, and should show zero alcohol content. It is apparent that no test result, save the printout card, was available for preservation.

The appellate department in Munroe held that the rule of Hitch must be extended to require that all evidence which can be reduced to preservable form by any means must be so transformed and then retained. We cannot so read Hitch.

In Hitch, the police had possessed the test ampoule and other paraphernalia which could be kept and for some time would have afforded an opportunity for retesting, and thus for possible impeachment. It was only the 'intentional but nonmalicious destruction' of this otherwise discoverable evidence (12 Cal.3d at p. 652, 117 Cal.Rptr. 9, 527 P.2d 361) which was condemned by Hitch. Our view is emphasized by the authorities relied on in Hitch. In one such case (Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215), a written statement by a codefendant was withheld despite Brady's request for discovery. Another (Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104) turned upon failure to disclose a promise to withhold prosecution in return for testimony, and the third (In re Ferguson, 5 Cal.3d 525, 96 Cal.Rptr. 594, 487 P.2d 1234) upon failure to disclose the relevant arrest and sex commitment record of the victim's husband. In all three cases, it is clear that evidence...