People v. Noonan

• Decision Date: 28 October 1971
• Docket Number: Cr. 20577
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael P. NOONAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 125

98 Cal.Rptr. 125

20 Cal.App.3d 862

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael P. NOONAN, Defendant and Appellant.

Cr. 20577.

Court of Appeal, Second District, Division 1, California.

Oct. 28, 1971.

Rehearing Denied Nov. 24, 1971.

Hearing Denied Dec. 23, 1971.

Gray & Jeppson, Beverly Hills, and Edwin Paul, Los Angeles, for defendant and appellant.

Roger Arnebergh, City Atty., and Howard Fox, Deputy City Atty., for plaintiff and respondent.

LILLIE, Associate Justice.

A municipal court jury found defendant guilty of drunk driving (§ 23102, Veh. Code); on appeal the appellate department of the superior court reversed the judgment. Acting under subdivision (a) of rule 63, California Rules of Court, the appellate department on its own motion certified the cause 'to settle important questions of law and to secure uniformity of decisions.' The questions presented by it are '1. What duty, if any, do law enforcement officers have as to preservation of test ampules used in breathalyzer tests for sobriety?

'2. Is the burden upon the People to show that the preservation of the ampule is impossible or would not benefit defendant? Or

'3. Is the burden upon the defendant to show that the preservation is possible and would benefit the defendant?' This court ordered the cause transferred to it.

The record shows that defendant was apprehended after Officer Nichols observed him traveling at a high rate of speed and driving in an erratic manner; based on defendant's physical condition, and his inability to satisfactorily perform any of the field sobriety tests, the officer the strong odor of alcohol on his breath formed the opinion defendant was drunk. Upon arriving at the station breathalyzer machine number 10 was used to test defendant's breath for alcohol, and a reading of .22 was obtained. According to exhibit 9 and Officer White, an expert, a reading of .15 and up indicates the subject is definitely under the influence.

On defendant's motion to compel the production of the test ampoule (containing certain chemicals) used in the breathalyzer machine, it was established that the ampoule had been intentionally although not maliciously destroyed by the police department and was no longer in existence; the motion was denied. Before trial the People moved the admission of the scientific results of the breathalyzer test (check list (exh. 1); test record (exh. 2)); defendant objected on the ground that the test ampoule had been destroyed depriving him of the opportunity to scientifically controvert the results of the test. After taking expert testimony the trial court overruled defendant's objection and admitted exhibits 1 and 2 in evidence. Later, in the trial the exhibits were formally received in evidence over objection of defendant. On appeal defendant urged that because such test ampoule was routinely destroyed after its use he was denied the opportunity to subject it to an independent laboratory analysis thus preventing him from refuting by scientific means Officer Nichols' testimony and the results of the test. The question before the appellate department was whether the municipal court erred in admitting in evidence the results of the breathalyzer test and, if so, the effect of the error.

The duty of the prosecution to preserve evidence for trial was established by the California Supreme Court in Eleazer v. Superior Court, 1 Cal.3d 847, 83 Cal.Rptr. 586, 464 P.2d 42, in which it squarely faced the issue of the prosecution's duty to locate a police informer with whom the police had lost contact. The court said at pages 852--853, 83 Cal.Rptr. at page 589, 464 P.2d at page 45: 'Certainly in the present case, After the informer was shown at the preliminary hearing to be a material witness, and when he still remained in police employ, the police or district attorney should have undertaken a good faith effort at least to obtain his address or to make some arrangement under which he could be successfully subpenaed for trial.' (Emphasis added.) Thus, the prosecution must bear the burden of proving it was unable through reasonable efforts in good faith to locate the informer so that either party or the court could, if so...